This EatStreet Restaurant Terms and Conditions ("Terms and Conditions") are entered into between EatStreet, Inc. ("EatStreet") and the restaurant (the "Restaurant") named in the EatStreet Sign Up Form (the "Sign Up Form") as of the Effective Date set forth therein. These Terms and Conditions together with the Sign Up Form constitute the Restaurant's agreement (collectively, the "Agreement") with EatStreet. By agreeing to and submitting the Sign Up Form, you agree to the Agreement.
SECTION 14 BELOW HAS AN ARBITRATION PROVISION THAT REQUIRES YOU TO ARBITRATE DISPUTES BETWEEN US, UNLESS YOU OPT OUT OF ARBITRATION IN ACCORDANCE WITH THIS AGREEMENT, AND IT CONTAINS A WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THE AGREEMENT, YOU AGREE TO THOSE PROVISIONS.
WHEREAS, EatStreet is an online food ordering and delivery service that allows customers to place food orders on the EatStreet website (the "Website"), the EatStreet mobile application (the "App"), or other channels, including third party channels, as determined by EatStreet from time to time, (collectively, the "EatStreet Platform") (collectively, "EatStreet Customers") from local restaurants, and in some instances provides delivery services to restaurants to deliver food orders placed on the EatStreet Platform to EatStreet Customers:
WHEREAS, Restaurant would like to provide food to EatStreet Customers and would like EatStreet to facilitate and transmit such food orders ("Orders") from EatStreet Customers to Restaurant for Restaurant to fulfill and prepare for pick up or either deliver itself or engage EatStreet to deliver.
NOW THEREFORE, in consideration of the promises and the mutual covenants set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Services. EatStreet will deliver to Restaurant the services selected from those described below in Sections 1 (A)-(E) (the "Service(s)"). Restaurant selects the Service by: (a) choosing the Service on its Sign Up Form; or (b) requesting the Service from EatStreet and processing an Order received from EatStreet after EatStreet transmits a confirmation email or facsimile of the requested Service to Restaurant.
vi. Provide reporting and accounting of all Orders transmitted to Restaurant.
ix. Timely make available or deliver Orders by: (a) packaging Order for EatStreet Customers to pick up at Restaurant; (b) packaging Order for pick up by an EatStreet driver if Restaurant has selected Delivery Service from EatStreet; or (c) delivering the Order to EatStreet Customers at the address provided by EatStreet if Restaurant has not selected EatStreet's Delivery Service set forth in Section 1(B) below;
iv. Send a driver to the Restaurant by or about the time specified by the Ready By Time and deliver the Order to the EatStreet Customer.
viii. Maintain Restaurant premises in safe condition in accordance with local, state, and Federal workplace safety regulations.
EatStreet will make available to Restaurant various Marketing and Promotional Services as further described below and updated from time to time. EatStreet will provide certain online advertising services to Restaurant, which may include targeting EatStreet Customers on the EatStreet Website or App or via email. EatStreet will provide the below marketing and/or promotional services to the extent specifically requested by Restaurant on the Sign Up Form or the Supplemental Marketing Services Form or otherwise requested and subsequently confirmed by EatStreet in writing.
Marketing Services & Descriptions:
Paid Email Advertisement: Restaurant will be periodically listed or otherwise promoted in EatStreet emails sent to EatStreet Customers within the Restaurant's Service Area as reasonably determined by EatStreet.
Promotional Services Descriptions:
EatStreet may offer various Promotional Services to Restaurant from time to time. Below is an example of a current Promotional Service offered by EatStreet in some geographic areas. EatStreet may cancel or add any offered Promotional Service at any time within its sole discretion.
Restaurant will pay EatStreet a Sponsored Delivery Fee on behalf of its EatStreet Customers, which shall be the delivery fees ordinarily charged on Orders to Customers ("Customer Delivery Fee(s)") to whom EatStreet will instead charge a $0.00 Customer Delivery Fee during the designated promotion timeframe and so long as the Order total meets a certain agreed upon dollar minimum.
Restaurant will determine the promotion timeframe by specifying the start and end date of the Restaurant Sponsored Free Delivery promotion. Restaurant will also determine the minimum Order total required for an Order to qualify for the Restaurant Sponsored Free Delivery promotion, and for all such qualifying Orders, Restaurant will pay a Sponsored Delivery Fee between the minimum and maximum amounts set forth in the Supplemental Marketing Services Form or other applicable ordering document or communication, which will depend on the Customer's delivery location to the Restaurant. Restaurant may also limit the eligible delivery Service Area for the Restaurant Sponsored Free Delivery promotion by notifying EatStreet of any Service Area restrictions. EatStreet does not guarantee the results of the promotion. Restaurant may cancel the promotion at any time by notifying EatStreet via phone call or email, and the cancelation will be effective upon confirmation by EatStreet.
2. Equipment. EatStreet will provide Restaurant certain equipment (the "Order Equipment") that Restaurant will install and use to fulfill EatStreet Customer Orders (which may include, without limitation, a tablet (the "Tablet") or other automated, electronic means of receiving Orders). Restaurant will maintain the Order Equipment in good, working condition, ordinary wear and tear excepted, and safeguard the equipment from damage, loss, theft and unauthorized access.
B. EatStreet may, if agreed upon with the Restaurant in the Sign Up Form, provide data for the Tablet for a fee. The Restaurant agrees that the Tablet will be used for the sole purpose of fulfilling Orders. Use of the Tablet for any unauthorized purposes may result in additional data costs for which Restaurant will be solely responsible.
3. Intellectual Property Ownership.
D. Restaurant will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any EatStreet IP or Content (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on any EatStreet IP or Content; (c) remove any proprietary notices or labels; and (d) use EatStreet IP, Website, App, Delivery App, and/or Content in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity.
4. EatStreet Customer Data.
5. Grant of License by EatStreet. EatStreet grants Restaurant a non-exclusive, limited, non-transferable, and royalty-free license to use the EatStreet Customer Data, Channel Order Information, Content, Website, App, and/or Delivery App solely to fulfill Orders and assist EatStreet in delivering Services. In addition, EatStreet grants Restaurant a non-exclusive, non-sublicensable right to display the EatStreet Marks in accordance with EatStreet's trademark guidelines provided to Restaurant from time to time, solely for the purposes set forth in this Agreement.
6. Grant of License to Use Restaurant IP. Restaurant hereby grants EatStreet a non-exclusive, fully paid, royalty-free, perpetual, unrestricted, worldwide right and license (with the right to make unlimited sublicenses), but not the obligation, to use, reproduce, display, publish, distribute, transmit, modify, translate, make derivative works from, and otherwise exploit all Restaurant IP, or any portion thereof, in connection with the EatStreet products and Services or the marketing or advertising thereof in any and all media formats and channels now known or hereafter devised including, but not limited to, a license and right to use the Restaurant names, trademarks, social media account names / handles and images on its websites (including on any custom websites created for Restaurant by EatStreet or in procuring a domain name for Restaurant), computer software applications/ mobile apps and other EatStreet platforms. Restaurant hereby waives any right to inspect or approve the use or other exploitation of the Restaurant IP now or in the future, whether such use is known to Restaurant. EatStreet may assign or grant these rights to others.
7. Feedback and Improvements.
B. All improvements, systems, programs, operating instructions and other documentation, rights in patentable inventions, trade secrets and know how, database interests and copyrights associated therewith related to the Services, the Content, the Website, App, and/or Delivery App, which are conceived, prepared, developed or delivered during the Term of this Agreement (whether independent of or in connection with performance hereunder), shall be and remain the sole property of EatStreet. Restaurant agrees to cooperate with EatStreet and execute, or cause its personnel to execute, such further acknowledgments and instruments as may be necessary to establish such ownership.
8. Term and Termination. This Agreement will be effective on the Effective Date and shall remain in effect unless terminated in accordance with this Agreement.
C. Effect of Termination. Upon the effective termination of this Agreement for any reason, Restaurant's right to use the Services, Website, App and/or Delivery App shall immediately cease, and Restaurant shall immediately return all EatStreet provided Order Equipment to EatStreet in substantially the same condition, with the exception of normal wear and tear. Failure to return the Order Equipment in accordance with this Agreement shall result in a charge for the replacement cost (per Order Equipment, where applicable). Restaurant will also destroy or delete any EatStreet Customer Data and/or Channel Order information in its possession or control and certify its destruction or deletion of such EatStreet Customer Data and/or Channel Order information.
9. Commissions, Fees, and Payment.
10. Confidentiality. Restaurant shall treat as confidential any technical, financial, business or other information, provided or made available by EatStreet to the Restaurant and designated as confidential or proprietary or by its nature should be understood to be confidential, including EatStreet Customer Data, Channel Order information, delivery driver information, and fees and payment information under the Agreement ("Confidential Information"). Restaurant shall not disclose and shall not use Confidential Information except to the extent necessary to carry out its obligations or express rights hereunder. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of the Restaurant, (ii) Restaurant otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by Restaurant with no knowledge of or access to such information.
11. Representations and Warranties; Disclaimer.
D.Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, WEBSITE, APP, DELIVERY APP, AND CONTENT ARE PROVIDED ON AN "AS-IS" BASIS AND EATSTREET DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EATSTREET EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. EATSTREET DOES NOT WARRANT THAT THE PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE PLATFORM WILL BE SECURE OR UNINTERRUPTED.
EATSTREET DOES NOT GUARANTEE THAT USERS WILL BUY FROM RESTAURANT VIA EATSTREET, THE WEBSITE, OR THE APP. SO LONG AS EATSTREET UPDATES RESTAURANT'S PRICE CHANGES ON THE WEBSITE AND APP IN A TIMELY MANNER, EATSTREET WILL NOT BE LIABLE FOR ANY AMOUNTS THAT DIFFER FROM THOSE LISTED ON THE WEBSITE OR APP. EATSTREET IS NOT LIABLE FOR ANY CLAIM AGAINST THE RESTAURANT BY ANY OTHER PARTY CONCERNING ANY CLAIMS REGARDING FOOD, GOODS AND/OR SERVICES PROVIDED BY THE RESTAURANT.
12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, EACH PARTY AND ITS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EITHER PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY RESTAURANT TO EATSTREET FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. Indemnification Procedure Each party's indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any claim; (ii) being provided sole control of the defense and/or settlement of such claim, so long as the defense or settlement does not involve an admission of guilt of the indemnified party; and (iii) receiving full cooperation of the indemnified party in the defense thereof.
14. Arbitration; Class Action Waiver. Unless Restaurant opts out of arbitration in accordance with Section 13A below, Restaurant and EatStreet agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury ("Arbitration Agreement"). This Arbitration Agreement is governed by the Federal Arbitration Act ("FAA") and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), which are available at www.adr.org. The arbitrator's fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys' fees. The arbitration proceeding will take place in Madison, Wisconsin, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator's decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver and/or the arbitrability of a claim or dispute may only be determined by an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party's intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
15. Non-Disparagement. During the Term and for a period of one year thereafter, each party agrees to take no action, nor make any negative comments, either spoken or written, which is intended, or that would reasonably be expected, to harm the other party or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to such other party.
16. Non-solicitation. Restaurant agrees that during the Term of the Agreement and for one (1) year thereafter, Restaurant will not encourage or solicit any employee, independent contractor or consultant of EatStreet to leave (or devote less than his or her full time to) Restaurant for any reason; provided, however, that such non-solicitation restriction shall not apply to those service personnel who previously provided services to Restaurant before his or her service relationship with EatStreet.
17. Publicity. EatStreet may reference or promote Restaurant as a business partner in public announcements, press releases, social media, and/or on the Website or App.