Terms & Conditions

Effective: July 3rd, 2020

BEFORE YOU USE THE EAT24 PLATFORM (“PLATFORM”) PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH EAT24 OR   USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” OR “OUTLET”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET.

SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

1. Definitions
  1.  “Driver” means independent third-party delivery contractor.
  2. Delivery API” means the Eat24 application programming interface (API) that allows the Outlet to exchange information with Eat24.
  3. Eat24 Data” shall mean any information that Eat24 provides or makes accessible to Outlet through the Eat24 Platform, including without limitation Personal Information. 
  4. Customer” means the customer who places an order for Outlet products through the Eat24 Marketplace, Eat24 Drive or PickUp.
  5. Eat24 Marketplace” means Eat24’s proprietary online communication platform where Consumers can view and search for the menus of Outlets and/or place an order for Outlet Products via the Eat24 website or mobile application for delivery by a Driver to the Customer. This is also referred to herein as the Eat24 Platform.
  6. Eat24 Drive” means the platform that enables delivery fulfillment for orders placed directly with the Outlet by the Customer.
  7. Eat24 Services” means Eat24 Marketplace, Eat24 Drive and PickUp, as applicable.
  8. Drive Orders” means orders placed by Outlet for delivery fulfilment by Eat24.
  9. Drive Term” means the term of the agreement between Eat24 and Outlet for Eat24 Drive.
  10. Marketplace Orders” means orders for Outlet Products through the Eat24 Marketplace from Eat24 Consumers.
  11. Outlet” means the restaurant or other entity that has agreed to participate in the Eat24 Services.
  12. Outlet Portal” is an online website, accessible at https://www.Eat24.com/Outlet/through which Outlet may and regularly should review and confirm its transactions, fees and charges and account on the Platform.
  13. Outlet Products” includes all products offered for take-out or delivery orders at Outlet Stores.
  14. Outlet Stores” means the Outlet restaurant locations that participate in the Eat24 Services.
  15. Marketplace Term” means the term of the agreement between Eat24 and Outlet for the Eat24 Marketplace.
  16. “PickUp” means the online Eat24 communication platform where Consumers can place an order for Outlet Products for pick up by the customer or the customer’s agent at a Outlet location.  
  17. “Order Equipment” means and includes any equipment reasonably required by Eat24 for Outlet to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.
  18. PickUp Term” means the term of the agreement between Eat24 and Outlet for the PickUp.
  19. Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
  20. “Promotion Fee” means the fees collected by Eat24 as a commission in exchange for promoting and featuring the Outlet and Outlet Store(s) on the Eat24 Platform, which is charged as a percentage of revenues transacted on the Eat24 Platform. 
  21. Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date.
  22. Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Outlet to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

2.  The Parties’ Relationship:  Eat24 provides an online marketplace platform using web-based technology that connects Outlets, independent delivery contractors (“Drivers”) and Consumers (“Platform”), as described in these Terms for Eat24 Marketplace, Eat24 Drive and PickUp.  Eat24 is not a Outlet or delivery service; it is an online connection platform.  Outlet and Eat24 agree they are independent businesses whose relationship is governed by the Sign-Up Sheet and these Terms.  Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Eat24 and Outlet (or Outlet’s employees, representatives or locations), Eat24 and Driver, or Eat24 and Consumers.  Except as expressly set forth in the Sign-Up Sheet and these Terms, each Party shall be responsible for its own expenses, profits, and losses.

3.  Marketplace Core Responsibilities. For Outlets that have agreed to participate in the Eat24 Marketplace, Eat24 and Outlet shall have the following responsibilities during the Marketplace Term

Eat24 Core Responsibilities. Eat24 will, in a timely manner:

  • Display Outlet’s logo; a listing of the Outlet Stores; and a menu of Outlet Products on the Eat24 Platform.
  • Accept Marketplace Orders from Consumers.
  • Forward each Marketplace Order to the relevant Outlet Store; and
  • Forward each Marketplace Order to a Driver, so that the Driver can pick up the applicable Outlet Product(s) from the Outlet Store to deliver to the Customer. 
  • Pay the Outlet in accord with the Parties’ agreements, deducting applicable Promotion Fees, marketing fees and commission fees.  

Outlet Core Responsibilities. Outlet will, in a timely manner:

  • Provide Eat24 with the Outlet’s in-store or take-out menu, including the price of each item on such menu.
  • Monitor Outlet’s menu and store information on the Eat24 Marketplace, promptly make updates via the Outlet portal to reflect the most up-to-date products, pricing and other information or immediately notify Eat24 of any errors or changes in writing.
  • Accept all Marketplace Orders placed by Eat24 from Outlet’s then-current menu.
  • Confirm all Marketplace Orders from Eat24.
  • Prepare the Outlet Products for each Marketplace Order for pickup by a Driver at the designated time.
  • Process Marketplace Orders in the order in which they are received.
  • Notify Eat24 of any changes to the pricing, availability, description, or other characteristics of the Outlet Products.
  • Notify Eat24 of its days and hours of operation, and remain open for business on Eat24 the same days and hours of operation as Outlet’s in-store business; notify Eat24 of any changes to Outlet’s hours of operations on holidays; and notify Eat24 if Outlet closes earlier than Outlet’s standard hours of operation or plans to close earlier than Outlet’s standard hours of operation;
  • Notify all Outlet store staff members of the relationship with Eat24 immediately upon execution of this Agreement; and
  • Provide the same utensils, napkins, bags and other materials that Outlet would typically provide in a standard take-out or delivery order, subject to Section 15(3)(i).
  • On an ongoing basis, review and confirm the transactions, fees, and charges on orders via the Outlet Portal, and promptly communicate to Eat24 any inaccuracies.

4. Eat24 Drive Core Responsibilities. For Outlets that have agreed to participate in Eat24 Drive, Eat24 and Outlet shall have the following responsibilities during the Drive Term:

Eat24 Core Responsibilities. Eat24 will, in a timely manner:

  • Provide Outlet with an online order form or access to the Delivery API to submit requests for deliveries or receive information through a Third Party Platform. 
  • Forward requests to a Driver, so that the Driver can pick up the applicable Outlet Product(s) from the Outlet Store to deliver to the Customer.
  • Accept and collect payments from Consumers for their respective orders. 

Outlet Core Responsibilities. Outlet will: 

  • Via the online order form, the Delivery API, or a Third-Party Platform, provide information requested by Eat24 including the Customer’s address, contact information, and any special instructions required for delivery;
  • Notify Eat24 if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Outlet hereby consents to receiving text messages and email confirmations from Eat24 providing status updates and delivery confirmations in connection with each delivery.
  • On an ongoing basis, review and confirm the transactions, fees, and charges on invoices and via the Outlet Portal, and promptly communicate to Eat24 any inaccuracies.

Drive Operating Procedures.

  • Order Placement. Outlet agrees to submit a Drive Order for delivery fulfillment at least twenty-four (24) hours in advance of scheduled delivery, and in no event less than two (2) hours in advance of scheduled pick-up. Exceptions will be mutually agreed to by the Parties.
  • Hours of Operation. The pickup and drop off of deliveries will be scheduled to take place during Eat24’s standard hours of availability, as may be updated from time to time in Eat24’s sole discretion. Outlet agrees to abide by the following standard procedures: (i) to notify Eat24 of any changes to its hours of operations on federal holidays with reasonable advance notice; and (ii) to notify Eat24 with reasonable advance notice if a Outlet location closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.
  • Delivery Radius . Eat24 will only accept Drive Orders to be delivered within a certain present delivery radius based on either the Outlet or the End-Customer location, which will be communicated to Outlet.
  • Cancellations. Fees owed for any Drive Orders cancelled within twenty-four (24) hours of a Schedule for Later delivery are non-refundable. If provided more than two (2) hours notice, but less than twenty-four (24) hours notice, Eat24 will make reasonable efforts to accommodate changes. Fees owed for any Drive Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.
  • Notification. Outlet agrees to notify all staff members in Outlet Stores of Outlet’s relationship with Eat24 prior to submitting any delivery requests to Eat24.

5.PickUp Core Responsibilities. For Outlets that have agreed to participate in the Pickup program, during the Pickup Term, Eat24 will have the same responsibilities as set forth in Section 3(a)(i) – 3(a)(iii) and Outlet will have the same responsibilities as set forth in Section 3(b)(i) – (xi). 

6.Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:

  1. Marketplace Refunds. In the event that Eat24, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer’s Order, Outlet will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of the Driver or Eat24.
  2. Drive Refunds. Outlet acknowledges and agrees that Eat24 shall be responsible only for facilitating the delivery of Outlet Product(s) to Consumers. Outlet shall be solely responsible for any customer complaints regarding Outlet Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Outlet Product(s). Outlet agrees not to refer any Customer complaints directly to Eat24. Any complaints regarding the timeliness or quality of a Driver’s delivery service shall be reported by Outlet to Eat24. If the completion of a Drive Order is more than 45 minutes late and due to fault of Eat24, Eat24 will reimburse Outlet for all or a portion of the delivery cost of the applicable Drive Order. If Outlet elects to refund a Customer for any reason, such election shall not obligate Eat24 to provide a corresponding reimbursement to Outlet. In the event that a Outlet Product has been visibly damaged with proof from customer, Eat24 may reimburse Outlet for all or a portion of the order subtotal. For the purposes of this agreement, “Outlet Product” is the actual food or beverage item, not the packaging that contains the Outlet Product. In no event shall Eat24 be obligated to issue any refunds directly to Consumers.
  3. Pickup Refunds. Eat24 shall be responsible for customer support issues relating to the ordering of Outlet Products and issues relating to a Customer’s Eat24 account. All other customer issues or complaints will be Outlet’s sole responsibility. In the event that Eat24, in its sole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Outlet will prepare the food to the same specifications as the original Pickup Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

7. Order Equipment. With respect to the Eat24 Marketplace, Eat24 will install any equipment reasonably required by Eat24 for Outlet to receive and process Orders (including, without limitation, a tablet, printer, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by Eat24, Outlet will pay Eat24 an Order Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the Order Equipment to access the Eat24 Platform in order to receive, process, and accept Marketplace Orders.  Any Order Equipment provided by Eat24 will remain Eat24’s sole property and may be used solely for purposes related to fulfilling Outlet’s responsibilities under this Agreement. Outlet will inspect all hardware and shall notify Eat24 in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Eat24 may restrict or rescind Outlet’s right to use the Eat24 Platform at any time. Outlet will be responsible for any damage to or loss of any Order Equipment provided by Eat24 (excluding ordinary wear and tear), which will be promptly reimbursed by Outlet (at the replacement cost thereof). Eat24 may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Outlet agrees to pay all subscription fees and deposits reasonably charged by Eat24 for Order Equipment and agrees Eat24 may deduct such fees and deposits from amounts payable by Eat24 to Outlet.

8.Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:

  • Eat24 Marketplace and Pickup. Eat24 will pay for Marketplace and Pickup Orders fulfilled by Outlet each week on a consistent day of the week, subject to change with no less than 10 days notice to Outlets by email or service notification. Eat24 shall be entitled to deduct from such payments Promotion Fees, marketing fees, Activation Fees and subscription fees. If Outlet has opted for Eat24 to provide Order Equipment, Eat24 will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Outlet’s right to use the Order Equipment to access the Eat24 Platform in order to receive, process, and accept Orders. Outlet agrees Eat24 may charge the customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable, as well as an additional markup for Outlet Products, in Eat24’s sole discretion. Outlet shall be responsible for all taxes, duties, and other governmental charges on the sale of Outlet Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. If Outlet raises the price for a menu item, Eat24 shall not be required to remit the higher price to the Outlet until 3 business days after the Outlet first provides notice to Eat24 of such pricing change. 
  • Outlet agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Outlet Portal, and to promptly communicate to Eat24 in writing any claimed inaccuracies, so that Eat24 has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Eat24 and Outlet agree is in the best interests of both parties and their commercial relationship.  Outlet agrees to communicate to Eat24 any disagreement, non-conformity or any issue with any transaction, fee, charge, or order within 60 days of the transaction, fee or order.  Outlet shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Outlet does not communicate a written claim or objection to Eat24 regarding such transaction, fee, charge or order within such 60-day period. 
  • Title:  Outlet agrees that Outlet holds title to the goods or products that Outlet provides through the Platform until the goods are picked up from Outlet, and that title passes from the Outlet to the customer upon pickup at the Outlet’s location.  Outlet agrees that neither the Driver nor Eat24 holds title to or acquires any ownership interest in any goods or products that Outlet prepares or provides through the Platform.

9.Payment Processing. 

Payment processing services for Outlets on the Eat24 Marketplace and Pickup are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Outlet agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Eat24 enabling payment processing services through Stripe, Outlet agrees to provide Eat24 accurate and complete information about Outlet’s representative and its business, and Outlet authorizes Eat24 to share it and transaction information related to Outlet’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

10.Outlet Content and Trademark; Photographs of Menu Items.

  • During the Marketplace Term or Pickup Term, as applicable, Outlet grants to Eat24 a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Outlet  Content in the provision of providing services to Outlet. As used herein, “Outlet Content” includes, without limitation, menus, photographs (either provided by Outlet or on Outlet’s website), trademarks, logos and other materials provided by Outlet to Eat24.
  • If photographs of Outlet’s menu items are not available or if they do not meet Eat24’s requirements, as reasonably determined by Eat24, then Outlet consents to Eat24 engaging a professional photographer to take photographs of Outlet’s menu items and display such photographs on the Eat24 Marketplace as representations of Outlet’s menu items; provided that Outlet may contact Eat24 support to have such photographs removed from the Outlet’s store listing and, in such event, Eat24 will comply in a timely manner.

11.Confidential Information.

  • The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Eat24 Data is the Confidential Information of Eat24.
  • Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
  • The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
  • If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.

12.Data Privacy and Security.

  • General. Outlet agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Eat24 Data, including without limitation Personal Information, except as required to perform under this Agreement. Outlet shall keep Eat24 Data secure from unauthorized access and maintain the accuracy and integrity of Eat24 Data in Outlet’s custody or control by using appropriate organizational, physical and technical safeguards. If Outlet becomes aware of any unauthorized access to Eat24 Data, Outlet will immediately notify Eat24, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Eat24. Outlet agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Eat24 and will be responsible for damages resulting from Outlet’s failure to comply. Outlet will not allow any third party to use the Eat24 Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Eat24 Platform; damage, destroy or impede the services provided through the Eat24 Platform; transmit injurious code; or bypass or breach any security protection on the Eat24 Platform.
  • Delivery API. During the Term, Eat24 grants to Outlet a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the Eat24 Drive services. Outlet will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.

13.Termination.
 
Outlet may terminate this Agreement for any reason at any time upon 30 days prior written notice. Eat24 may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Outlet nor Eat24 will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Outlet or Eat24.

14.Modifications.

Eat24 reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Eat24 may, at its sole discretion, remove Outlet Products or Stores from the Eat24 Marketplace if Eat24 determines that such Outlet Product or Outlet Store could subject Eat24 to undue regulatory risk, health and safety risk, or other liability. Eat24 also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.Eat24.com/Outlet/Outlet-terms/. We will notify Outlets of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

representations-and-warranties-disclaimer

15.Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

  • Each party represents and warrants that it has the full right, power, and authority to enter and perform its obligations under this Agreement without breaching any obligation to any third party.
  • Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights. 
  • Outlet further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation,  (ii) it has informed Eat24 of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Outlet Product(s) and it will inform Eat24 of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Outlet’s menu items listed on the Eat24 Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Outlet’s menus on the Eat24 Marketplace or request delivery of any age-restricted products through the Eat24 Platform without first entering into a separate agreement with Eat24 memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) it will not disclose any information related to a Driver or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement.
  • EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EAT24 HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE EAT24 PLATFORM, THE DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF OUTLETABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Outlet acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Eat24 shall not be responsible to Outlet or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Eat24 services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

16.Indemnification.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Eat24, Drivers (or, in the case of Outlet as the Indemnifying Party, caused by the Outlet Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11 and Section 12, and Section 15 of this Agreement;  (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Outlet will defend, indemnify and hold harmless Eat24 from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Outlet Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Eat24. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Eat24 assumes no liability, and shall have no liability, for any infringement claim pursuant to section 14(iii) above based on Outlet’s access to and/or use of the Eat24 Platform following notice of such an infringement claim; any unauthorized modification of the Eat24 Platform by Outlet; or Outlet’s combination of the Eat24 Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

17.Limitation of Liability.

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO EAT24 BY OUTLET IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

18.Insurance.

During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be canceled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

19.Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH EAT24 AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

  • Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Eat24 may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Eat24 and Outlet agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST EAT24—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH EAT24, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST EAT24 IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
  • Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Eat24. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Eat24.
  • Waiver of Jury Trial. YOU AND EAT24 WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Eat24 are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 17(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
  • Waiver of Class or Consolidated Actions; Severability. YOU AND EAT24 AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE OUTLET CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Eat24 is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20, and all other provisions of this Section 19 (Dispute Resolution) shall remain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19.
  • Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Eat24 can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Eat24 in writing of your intention to opt out by sending a letter, by First Class Mail, to Eat24, Inc., 303 2nd Street, South Tower, Suite 800, San Francisco, CA, 94107. Any attempt to opt out by email will be ineffective.  To be effective, your opt-out notice must be postmarked no later than 30 days after your first order on the Platform. Your notice must include your name and address, your Eat24 username (if any), the email address you used to set up your Eat24 account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one Outlet, and letters that purport to opt out multiple Outlet will not be effective as to any. No Outlet (or his or her agent or representative) may effectuate an opt out on behalf of other persons.. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. 
  • Survival. This Arbitration Agreement will survive any termination of your relationship with Eat24.
  • Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Eat24 makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

20.Litigation Class Action Waiver:  To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Outlet agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Outlet opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Outlet agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Outlet acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Outlet further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

21.Franchisees.  Franchisees operating a restaurant concept licensed by Outlet may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by Eat24 to the Franchisee.

22.Partner Code of Conduct. Outlet agrees to comply with the Partner Code of Conduct (https://www.Eat24.com/partner/code-of-conduct) which may be updated by Eat24 from time to time. 

23.Communications from Eat24. Outlet agrees to accept and receive communications from Eat24 or Drivers, including via email, text message, calls, and push notifications to the cellular telephone number Outlet provides to Eat24. Outlet acknowledges that Outlet may receive communications generated by automatic telephone dialing systems and/or which will deliver pre-recorded messages sent by or on behalf of Eat24, its affiliated companies and/or Drivers. Outlet may opt out of such communications in Outlet’s Account Settings or by replying “STOP” from the mobile device receiving such messages.

24.General Provisions.

As set forth on the Sign-Up Sheet between Outlet and Eat24, the Sign-Up Sheet and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Outlet agrees that, except as set forth above in Section 19 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of San Francisco, California. Outlet may not assign this Agreement in whole or in part without Eat24’s prior written consent. Eat24 may freely assign this Agreement.  This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties’ agreements must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder). Eat24’s address is 303 2nd Street, South Tower, Suite 800, San Francisco, CA 94107. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

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