Restaurant Agreement | Resto4u
This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“Restaurant”) and Smart Restaurant Services, Inc DBA (“Resto4u” and “Resto2you”). This Agreement specifies the terms under which Restaurant may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting Restaurant’s assent to this Agreement, Restaurant agrees to be bound by the terms of this Agreement. If a Restaurant does not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of binding it to this Agreement.
The definitions for defined terms are set forth throughout the body of this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and Resto4u (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. SUBSCRIPTION TO THE PLATFORM; LICENSES; TABLET COMPUTER AND WIRELESS PRINTERS; RESTRICTIONS ON USE; CUSTOMER MEMBERSHIP; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
1.1 Access to the Platform.
Subject to the terms and conditions of this Agreement, Resto4u hereby grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted below) right to authorize Users to access and use the Platform. Restaurant shall be responsible to Resto4u for any and all acts or omissions of the Users. Resto4u reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability.
References to the “Platform” in this Agreement shall refer to the technology used to operate the Resto4u, as dictated by the context. The platforms may be amended by Resto4u from time to time.
1.2 License Grants to Restaurant Content and Restaurant Marks.
1.3 Tablet Computer and Wireless Printers.
1.4 Restrictions on Use. Restaurant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Data, or the Tablet that is not expressly permitted under this Agreement. Without limiting the foregoing, Restaurant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform; (iii) resell, distribute, or sublicense the Platform, the Tablet, or any leased Wireless Printers; make the Platform, the Tablet, or any leased Wireless Printers available on a “service bureau” basis, or otherwise allow any third party to use or access the Platform, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Tablet, or any leased Wireless Printers; (v) use the Platform, the Data, the Tablet, or any leased Wireless Printers in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vi) introduce into the Platform, the Tablet, or any leased Wireless Printers any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vii) provide Restaurant’s login credentials to any third party for their access to Restaurant’s use of the Platform. Restaurant is expressly prohibited from selling or offering for sale any tobacco or nicotine products including, but not limited to, cigarettes and e-cigarettes using the Platform or in connection to Resto4u in any way.
1.5 Additional Products and Services. Restaurant may order Additional Products and Services at any time during the Term on notice to Resto4u, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms“), as the same may be amended by Resto4u from time to time.
1.6 Incorporated Terms. Restaurant’s use of Google Wallet, Google Pay, Google Maps, Apple Pay, and, if Restaurant is located in qualified regions of the United States, the On-Demand Delivery option (collectively, the “Third-Party Services”), is subject to the following additional terms and conditions, which are hereby incorporated by reference and binding upon Restaurant and which may be updated by the applicable third-party service provider from time to time without notice to Restaurant (the “Incorporated Terms”). In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, such Incorporated Terms shall govern with respect to Restaurant’s use of the Third-Party Services. Google and Apple are not parties to any Order and will not be responsible for any disputes between Restaurant and any Customer.
2. ACCOUNT SET UP, MAINTENANCE OF ACCOUNT, AND Resto4u WIDGET.
2.1 Account Set Up. Upon executing this Agreement, Restaurant shall provide certain location and payment data. Thereafter, upon setting up Restaurant’s account on the Platform, Restaurant will be required to create a unique sign-in name (“Sign-In Name”) and password (“Password”), and provide certain additional information that will assist in authenticating Restaurant when Restaurant’s Users log into the Platform in the future (“Unique Identifiers”). When creating the account, Restaurant must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Restaurant’s Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. Restaurant will promptly inform Resto4u of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Resto4u will not be liable for any loss or damage caused by any unauthorized use of the Restaurant’s account.
2.2 Maintenance of Account. As Resto4u’s business evolves, it may require additional information, authorizations, and permissions from Restaurant from time to time in order to provide Restaurant access to and usage of the Platform and perform its other obligations under this Agreement. When requested by Resto4u, Restaurant shall promptly provide all such information, authorizations, and permissions in accordance with Resto4u’s request. When doing so, Restaurant shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to Restaurant or immediate termination of Restaurant’s account. To the extent Restaurant is required to provide any personal information in connection with such requests, Resto4u shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Restaurant’s account. To clarify, the personal information that Restaurant may be required to provide so that Resto4u can comply with its Know Your Customer obligations as permitted under the USA Patriot Act (https://www.justice.gov/archive/ll/highlights.htm, is as follows: Restaurant’s full legal name and tax identification number, plus either (i) Restaurant’s principal’s first and last name, last four digits of his/her social security number, and date of birth, or (ii) a color copy of Restaurant’s principal’s driver’s license.
2.3 Resto4u Widget. In order to integrate Restaurant’s website with the Platform, Restaurant hereby grants Resto4u the right, during the Term, to embed the Resto4u widget in Restaurant’s website. To the extent that Restaurant has a web developer that is capable of integrating the Resto4u Widget, Restaurant may authorize that person to do so. To the extent permission to do so is required from a third party acting on Restaurant’s behalf (e.g., Restaurant’s hosting provider, webmaster, etc.), Restaurant will assist us in promptly obtaining such permission and any necessary access credentials. Restaurant shall promptly, and within no more than three (3) business days, inspect the installation of the Resto4u widget on Restaurant’s website and notify Resto4u in writing if Restaurant is not satisfied with the installation.
3. PRIVACY; CANADA’S ANTI-SPAM LEGISLATION.
3.2 Canada’s Anti-Spam Legislation. If a Restaurant is located in Canada, Restaurant is responsible for ensuring that all electronic communications between Restaurant and its Customers comply with Canada’s Anti-Spam Legislation (“CASL”), including, but not limited to, any electronic messages sent to Customer email addresses accessed through Restaurant’s dashboard. Resto4u does not represent that it has obtained the consent of any Customer to receive marketing and promotional messages, and Restaurant is solely responsible for ensuring compliance with CASL for any electronic messages Restaurant sends to Customers. If Restaurant is not located in Canada, please note that this Section 3.2 shall not apply
4. FEES; PAYMENT; and TAXES.
4.1 Fees. As consideration for the rights to use the Platform granted in Section 1, Restaurant shall pay Resto4u 10% of each Order. Additionally, if a Restaurant orders any Additional Products and Services through the functionality of the Platform, it shall pay Resto4u’s then-current prices for these Additional Products and Services. Resto4u may modify the Fees at any time on written notice to Restaurant (including via Restaurant’s individual account in its dashboard.resto4u.com), and any such modification shall go into effect thirty (30) days after such notice.
4.2 Refunds; Cancellation Fee. Resto4u shall impose on Restaurant a cancellation fee (“Cancellation Fee”) in the amount of $199 if Restaurant’s cancellation occurs during or after the account onboarding process (as set forth in Sections 2.1 and 2.2). If a Cancellation Fee is assessed, it will be offset against the refund of the Set-Up Fee that Resto4u may agree to, if any. If the Set-Up Fee paid was less than the Cancellation Fee, then Restaurant shall owe Resto4u the difference. If the Set-Up Fee was greater than the Cancellation Fee, then the difference may be refunded to the Restaurant in Resto4u’s reasonable discretion as set forth in this Section 4.2. For clarity, if Restaurant cancels its service with Resto4u prior to onboarding, no Cancellation Fee shall be assessed.
4.3 Taxes. In connection with: (i) any orders for Additional Products and Services; and (ii) any service fees, Restaurant shall also pay Resto4u any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes, but excluding any taxes imposed or based on Resto4u’s income (collectively, “Taxes”).
4.4 Payments to Resto4u. Resto4u shall authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and Restaurant hereby consents to the same. If Restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in Restaurant’s local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date Restaurant can begin taking Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, Resto4u reserves the right to charge the Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
4.5 Payments to Restaurant; Google and Yelp orders. Resto4u currently uses Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders. Resto4u reserves the right to use other third- party payment processors at any time during the Term on notice to the Restaurant. Resto4u enforces a maximum dollar amount of $4,000 per Order (including Social Media Ordering) (the “Maximum Order Amount”) and will not accept Orders in excess of the Maximum Order Amount. Resto4u reserves the right to modify such Maximum Order Amount at any time without notice.
4.8 PCI Compliance. Resto4u is responsible for the security of cardholder data received from Restaurant and/or Customers, including, without limitation, when Resto4u uses third-party payment processors to process Orders. To the extent that Resto4u stores, processes, or transmits cardholder data, Resto4u complies with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other applicable laws, rules, and regulations.
5. TERM, TERMINATION, AND SUSPENSION.
5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
5.2 Termination and Suspension. Either Party may terminate this Agreement for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach. Resto4u may terminate this Agreement at any time, for any or no reason, upon thirty (30) days’ prior written notice to Restaurant (without penalty or liability). Further, Resto4u may terminate this Agreement immediately, upon notice to Restaurant, if Resto4u determines in its sole, reasonable discretion, that Restaurant has acted in a manner that disparages Resto4u or otherwise exhibits behavior toward Resto4u or its staff that is contrary to Resto4u’s code of ethics and business conduct, or if Resto4u discovers that Restaurant has sold, offered for sale, or attempted to sell cigarettes or other tobacco or nicotine products, which are expressly prohibited on the Platform. If a Restaurant desires to terminate this Agreement for convenience and without cause, it shall: (i) submit a cancellation request form (available upon request from Resto4u’s Support Team or Restaurant Success Team); or (ii) complete a cancellation consultation call with its Restaurant Success Manager. The purpose of this process is for Resto4u to review account details and provide the return process for any leased hardware. Upon completion of this cancellation process, this Agreement shall automatically terminate in thirty (30) days. Resto4u may suspend access to the Platform or remove some or all Restaurant Content in Resto4u’s sole discretion, if Resto4u reasonably believes that Restaurant, Restaurant’s patrons, or any third party is engaged in: (x) any activity that may harm Resto4u, its systems, or any third-party systems; or (y) fraudulent or illegal activity or any other activity that could result in legal liability to Resto4u or any third party. Further, Resto4u may suspend access to the Platform if Restaurant fails to make a payment on time until all overdue amounts are paid. Any such suspension may continue until the activity causing the suspension has been cured, and Resto4u has received satisfactory assurances that it will not recur.
5.3 Hibernation Period. At any time during the Term, if Restaurant pauses their services for more than 1 month, Restaurant will notify Resto4u in writing. Restaurant may, upon written notice to Resto4u, temporarily pause its access to the Platform for a period of up to six (6) months (the “Hibernation Period”). If the Restaurant does not reopen after the 6 month Restaurant will immediately cease all access to and use of the Platform and return the Tablet and any leased Wireless Printers or card readers as set forth in Section 1.3.
5.4 Effect of Termination. Upon termination of this Agreement:
5.5 Survival. The following provisions will survive termination of this Agreement: Section 1.3 (“Tablet Computer and Wireless Printers”); Section 1.6 (“Additional Products and Services”); Section 1.7 (“Incorporated Terms”); Section 5.4 (“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.5 (“Survival”).
6.1 Intellectual Property. Resto4u owns and shall own all right, title, and interest in and to the Platform and the Branded Apps, including all Pre-Existing Code (but excluding IOS Customizations), together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Resto4u Intellectual Property”). Restaurant will have no rights with respect to the Resto4u Intellectual Property other than those expressly granted hereunder. Restaurant owns and shall own all right, title, and interest in and to the Restaurant Content, the IOS Customizations, and the Restaurant Marks, including all copyrights and other intellectual property rights relating thereto (the “Restaurant Intellectual Property”). Resto4u will have no rights with respect to the Restaurant Intellectual Property other than those expressly granted hereunder.
6.2 Data. All Data shall be jointly owned by Resto4u and Restaurant. During the Term and indefinitely thereafter, the Data may be used by either Party for internal business purposes, for purposes of performing under this Agreement, and for other lawful purposes in accordance with all applicable laws, rules, and regulations, including, without limitation, privacy and data protection laws and regulations. In addition, Resto4u may disclose Data to third parties with whom Resto4u contracts, provided that such third parties are required by contract to treat such Data as confidential information and at all times maintain the confidentiality of such Data. Notwithstanding the foregoing, each Party hereby represents, warrants, and covenants that it shall not sell, license, or commercialize the Data, in any respects, in whole or in part.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Restaurant, any franchise agreement..
7.2 Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform (with the exception of prices under the Profit Protection program, if applicable); (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders (including Social Media Ordering) and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders that are scheduled to be delivered to a Customer by a third-party delivery service or by Curbside Pickup, Restaurant shall package the Order appropriately for delivery or pickup (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order is available for pickup upon the third-party delivery service’s arrival or upon the Customer’s arrival (for Curbside Pickup); (v) if it has signed up for On-Demand Delivery, it shall not offer alcohol on its online menu through the Platform, and if it attempts to do so, Resto4u may, in its sole discretion, terminate Restaurant’s participation on the On-Demand Delivery program; (vi) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order that includes alcohol, Restaurant shall abide by such laws, including, without limitation, checking Customer’s ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; (vii) the Restaurant Content and the Restaurant Marks and Resto4u’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other
rights of third parties not specifically identified in this Agreement; (viii) Restaurant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with Resto4u’s use of the Restaurant Content and the Restaurant Marks and/or Resto4u’s exercise of any license granted hereunder, and Resto4u shall not be obligated to pay any fees in connection therewith; and (ix) Restaurant shall not accept Orders in excess of the Maximum Order Amount. Restaurant is solely responsible for ensuring that the Restaurant Content is at all times accurate, complete, and up to date on the Platform including, without limitation, Restaurant’s menu, hours, address, pricing, and promotions. Resto4u is not responsible for any Restaurant Content that is incorrectly entered or out of date on the Platform.
a. Resto4u CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY RESTAURANT WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY Resto4u HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Resto4u MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE RESTAURANT MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
b. Resto4u HAS MADE EVERY EFFORT TO DISPLAY THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF RESTAURANT’S COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH Resto4u WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES CONFORM TO RESTAURANT’S EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL TABLETS, ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON TABLETS AND ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TABLET OR ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH TABLET OR ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN RESTAURANT’S LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
c. ORDERS MAY BE DELIVERED BY THIRD-PARTY DELIVERY SERVICES THAT ARE PARTNERED WITH Resto4u AND/OR BY NON-AFFILIATED THIRD-PARTY DELIVERY (“UNAFFILIATED DELIVERY SERVICES”). Resto4u IS NOT LIABLE TO RESTAURANT, CUSTOMERS, OR ANY THIRD PARTIES FOR ANY ACTS OR OMISSIONS OF UNAFFILIATED DELIVERY SERVICES AND RESTAURANT USES SUCH UNAFFILIATED DELIVERY SERVICES AT ITS OWN RISK.
8. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO Resto4u HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS; (C) ANY DAMAGE TO OR LOSS OF THE TABLET AND/OR ANY LEASED WIRELESS PRINTERS; OR (D) RESTAURANT’S BREACH OF SECTION 1.4; (II) Resto4u’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO Resto4u UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF Resto4u AND ITS DELIVERY SERVICE VENDOR FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third- party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, Restaurant shall indemnify, defend, and hold harmless the Resto4u Indemnified Parties from and against any and all Losses incurred by such Resto4u Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Restaurant’s breach or alleged breach of the Incorporated Terms and/or Section 4.6; (ii) an Adverse Event; or (iii) the processing of Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
During the Term, Resto4u shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that Restaurant is a client of Resto4u and a user of the Platform. In addition, upon the reasonable request of Resto4u, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties.
11. MISCELLANEOUS PROVISIONS.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required), and provided that, in the case of Restaurant’s assignment to such a successor of Restaurant’s assets, the assignee shall (i) assume all obligations of the assigning Party hereunder (including equipment leases) and become a party to this Agreement, and (ii) provide Resto4u with all necessary onboarding information including location and payment data, the last four digits of assignee’s social security or tax identification number, and furnish Resto4u with all forms and documents reasonably requested including, without limitation, Form SS-4. Resto4u shall not be liable to Restaurant or any Restaurant assignee for any liabilities or losses incurred in connection with the assignment. This Agreement is entered into in the State of California and shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Los Angeles, CA pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, Resto4u may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and the Additional Terms is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that Resto4u may modify this Agreement and/or the Additional Terms at any time by posting such modification on Restaurant’s individual account in Restaurant’s admin.resto4u.com dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is Restaurant’s responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
DEFINITIONS. Defined terms have the meanings set forth in this Section 12 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.
12.1 “Additional Products and Services” means products and services, other than access to the Platform, that Restaurant may order from Resto4u, including, without limitation, Resto4u Discover, website development services, marketing services, paper products, data connectivity, Wireless Printers, and LTE Tablets.
12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order (including Social Media Ordering).
12.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
12.4 “Branded Apps” means the Restaurant-branded mobile applications set up by Resto4u and owned by Restaurant. Branded Apps for IOS are called “IOS Branded Apps,” and Branded Apps for Android are called “Android Branded Apps.”
12.5 “Curbside Pickup” means an order placed via the Direct Platform and/or Branded Apps for pickup by the Customer in which Restaurant personnel deliver the order directly to the Customer’s vehicle upon the Customer’s arrival at the Restaurant (e.g., in the parking lot or curbside).
12.6 “Customer” means a unique profile that submits an Order.
12.7 “Direct Platform” means Resto4u’s direct social and mobile meal-ordering platform, which is accessed via Resto4u’s Facebook social plugin for Restaurant’s Facebook page, the Branded Apps, and/or Restaurant’s website; and shall also include the Tablet and the Branded Apps.
12.8 “Discover Platform” means Resto4u’s platform that allows Customers to discover new restaurants, which is accessed via Resto4u’s website, www.resto4u.com, and/or Resto4u’s dedicated Discover website, eat.resto4u.com; Resto4u’s Google Place Actions plugin; and/or Resto4u’s mobile application.
12.9 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
12.10 “Effective Date” means the date Restaurant accepted this Agreement.
12.11 “IOS Customizations” means any source code, object code, operating instructions, and interfaces developed by Resto4u, specifically to customize Restaurant’s IOS Branded App, that does not constitute Pre-Existing Code.
12.12 “Menu” means Restaurant’s menu submitted to Resto4u, as updated by Restaurant from time to time.
12.13 “On-Demand Delivery” means delivery of Orders using Resto4u’s network of local and regional third-party delivery service providers, which Restaurants may opt into in connection with their use of the Platform.
12.14 “Order” means a meal order for Restaurant’s food and/or beverages submitted by Customers through Resto4u via the Platform, or, when referring to Social Media Ordering, through Resto4u via the applicable social media platform.
12.15 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
12.16 “Pre-Existing Code” means all source code, object code, operating instructions, and interfaces developed by Resto4u for or relating to the Platform and/or the Branded Apps, excepting IOS Customizations.
12.17 “Restaurant Content” means any content submitted by Restaurant to Resto4u, including, without limitation, the Menu.
12.18 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
12.19 “Term” has the meaning specified in Section 5.1.
12.20 “User” means an employee or agent of a Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.