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.
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:
Outlet Core Responsibilities. Outlet will, in a timely manner:
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:
Outlet Core Responsibilities. Outlet will:
Drive Operating Procedures.
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:
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:
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.
12.Data Privacy and Security.
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.
15.Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
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.
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.
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”.
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.
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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