NOTE: THIS IS AN UPDATED VERSION OF THE RESTAURANT AGREEMENT IS EFFECTIVE FOR ALL NEW RESTAURANTS AGREEING TO THIS AGREEMENT BY CLICKING “Agree and Continue” ON THE SITE; AND WILL BECOME EFFECTIVE FOR ALL CURRENT RESTAURANTS ON DECEMBER 22, 2016. UNTIL THAT DATE, THE CURRENT RESTAURANT AGREEMENT IS LOCATED HERE.
This Restaurant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant" or “you”), and Eat24, LLC (collectively, "Eat24" or “us”), regarding the Restaurant's use of Eat24's website and apps (the "Website"), and the Restaurant's inclusion in services, such as online food ordering, provided by Eat24 via the Website (as determined by Eat24 from time to time and in its sole and absolute discretion) and such other media or media channels, devices, software, or technologies as Eat24 may choose from time to time (the "Eat24 Services").
1. Restaurant Menu and Eat24 Marketing
The Restaurant agrees to provide, maintain, and promptly update for so long as this Agreement is effective, accurate, current, and complete information regarding Restaurant as is requested during Restaurant's registration and setup process (the "Registration Process").
Restaurant also agrees to provide Eat24 with Restaurant's current menu, and any updates, changes, or modifications thereto, in such format as is requested by Eat24 (collectively, the "Marketing Materials") for Eat24's inclusion in the Website and the Eat24 Services, and for any marketing activities undertaken by Eat24, in Eat24's sole discretion. Restaurant hereby grants to Eat24 a non-exclusive, transferable, sublicensable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt, prepare derivative works of, and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for commercial and promotional purposes, in connection with the Website and the Eat24 Services. The license rights granted hereby will apply to any means now known or hereafter developed. As between Eat24 and the Restaurant, and subject to the rights granted to Eat24 herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated therewith.
Restaurant further agrees that delivery specifications, fees, and pricing for Customer Orders made via the Eat24 Services will be no less favorable to customers than that available through Restaurant's own delivery or takeout menu or any third party service, and that Eat24 may update such Restaurant information to match more favorable terms if available elsewhere.
The Restaurant acknowledges and agrees that the end-user customers of the Eat24 Services (the "Customers") may place orders with the Restaurant, through the Eat24 Website or other media or media channels, devices, software, or technologies as may be included within the Eat24 Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant Menu (the "Customer Orders"). Upon placement of such a Customer Order, Eat24 will send written confirmation thereof to the Restaurant via the fax number or email address currently in the Restaurant's Website account information, via the Eat24 Orders App, or via such other delivery method as Eat24 and the Restaurant may agree upon (the "Order Confirmation"), and which Order Confirmation contains a confirmation code for the Customer Order. Eat24 currently follows the Order Confirmation with an automatic telephone call (the "Phone Confirmation"), which requests that the Restaurant confirm receipt of the Order Confirmation by entering the Customer Order's confirmation code; these Phone Confirmations may be recorded, and the Restaurant hereby consents to such recording, and will notify all of its employees and service providers that receive the Phone Confirmations that such calls may be recorded.
When the Restaurant provides a Customer with the applicable Customer Order (either via pick-up or delivery), the Restaurant agrees to have the Customer sign the Eat24 Order Receipt Form, a copy of which is located here at owner.eat24hours.com/billing owner.eat24hours.com/billing (and which may be updated from time to time by Eat24) (the "Order Receipt Form"). The Restaurant agrees to keep a copy of each signed Order Receipt Form for at least 3 months following the date of the applicable Customer Order, and the Restaurant will promptly deliver to Eat24 copies of these executed Order Receipt Forms upon request by Eat24.
3. No Bailment
Restaurant agrees that no bailment is created by Restaurant’s use of the Eat24 Services, and Eat24 is not a bailee of goods contained in Customer Orders. Eat24 does not take custody or control of any goods in connection with this Agreement. Eat24 is not be responsible in tort, contract or otherwise for any loss or damage to goods, mis-delivery, failure to deliver, or delay in delivery of goods (including perishable goods), for any reason whatsoever.
If Restaurant sells alcohol over the Eat24 Services to Customers, it agrees it will require the Customer to prove that he or she is 21 years of age or older with a valid form of government-issued identification at the time of delivery, and present the debit or credit card used in the transaction for verification. If the Customer is unable to prove he or she is 21 or older, then Restaurant agrees not to give the alcoholic beverages to the Customer, and if it was delivered, the delivery agent must bring the alcohol back to the Restaurant.
Restaurant agrees that it will, under no condition, use the Customer information provided by Eat24 to facilitate the age requirement identification for any other purpose than to verify the Customer’s age. Further, Restaurant represents and warrants that it (i) has and will maintain all required license(s) and/or permit(s) to sell and deliver alcohol; and (ii) will comply with all applicable laws, regulations, and rules applicable to licensed retailers of alcohol. Restaurant will comply with all applicable state and local packaging and/or labelling requirements for the delivery of alcohol.
5. Tablets for Use of the Eat24 Software
Eat24 may provide Restaurant with a tablet or other portable media device preloaded with Eat24's Software (the "Tablet"). The Tablet may be only used by Restaurant for the purpose of submitting and confirming orders and payments for food and beverages, as well as handling delivery services in connection with the Eat24 Services, all via the Eat24 Software. Restaurant will receive a Tablet pre-loaded with the Orders App and MDM software that is either new (as will be the case in most instances) or a refurbished (in rare cases), but in any case not more than 2 years old.
Restaurant may use the Tablet on its premises as long as it continues to use the Eat24 Services under this Agreement, until Eat24 wants to replace it with another Tablet or Eat24 terminates your use of the Tablet. For example, Eat24 may require the Restaurant to return the Tablet if less than 75% of the Orders are not confirmed through the Tablet over a given period of time.
Restaurant can expect to receive the Tablet within 5 to 7 business days after Restaurant has agreed to this Agreement and after the Restaurant is ready to receive Customer Orders, i.e. the menu is active.
Eat24 shall at all times retain ownership of the Tablet, and Restaurant must return the Tablet to Eat24 within 14 days of the date requested by Eat24. It is Restaurant’s responsibility to provide Wi-Fi to enable the Tablet to interact with Eat24 via the Eat24 Software.
Returning the Tablet. Restaurant may return the Tablet back to Eat24 at any time in the same condition as the Tablet was when Eat24 provided it to you, less reasonable wear from usage. If there is excessive wear from usage as determined by Eat24, Eat24 will pass through the charges to refurbish the Tablet, and Restaurant agrees to pay Eat24 these additional charges due to poor maintenance of the device.
Damage to the Tablet.If your Tablet screen is broken (screen cracked or water damage), then first exchange is free so long as Restaurant returns the original broken Tablet back to Eat24. Eat24 will have the right to deduct $100.00 from the amounts that Eat24 pays out to Restaurant for the next Tablet that is broken. Restaurant must contact Eat24 technical support in order to arrange the pre-paid shipping box to be sent to Restaurant and coordinate the delivery of new Tablet.
Tablet is Stolen. If the Tablet is stolen, Restaurant will not be charged for the first incident if Restaurant submits a police report. Otherwise, Eat24 will charge the Restaurant $399 (plus any required sales tax) for the stolen Tablet. Eat24 will expedite a new Tablet to Restaurant within 2 to 5 business days.
Keep the Tablet. Restaurant may keep the Tablet if Eat24 is able to deduct $399.00 from the amounts that Eat24 pays out to Restaurant (plus any requisite sales tax). But please note, Eat24 retains the right to wipe all of the software on the Tablet and reset the Tablet to its factory settings. Any content you have on the Tablet will be lost, so please remember to back up your content to another storage service or device.
Termination. If the Agreement terminated by either party, Eat24 will email Restaurant a prepaid shipping label or pre-addressed shipping box to return the Tablet to Eat24. Restaurant must ship the Tablet back to Eat24 to the pre-paid and pre-addressed location within 7 calendar days after receipt of the shipping label or pre-addressed shipping box. The date of shipment is the date that Restaurant hands over the pre-addressed boxed Tablet to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier's shipping document.
PLEASE NOTE: EAT24 WILL WITHHOLD $399 FROM RESTAURANT PAYMENTS WHEN EAT24 TERMINATES THE AGREEMENT WITH RESTAURANT OR RECEIVES NOTICE OF TERMINATION FROM RESTAURANT AND WILL REFUND OR CREDIT RESTAURANT THE $399 AFTER THE TABLET HAS BEEN RETURNED TO EAT24 IN GOOD CONDITION LESS REASONABLE WEAR AND TEAR, AND YOU RETAIN POSSESSION AND OBTAIN OWNERSHIP OF THE TABLET ONCE THE FUNDS HAVE BEEN COLLECTED IN FULL.
Monitoring Software. In addition to the Eat24 Software used to perform the Eat24 Services, Eat24 uses a special third party mobile device management program (“MDM software”) on the Tablet in order to keep the software up to date so you don’t have to worry about that, help keep it secure from prying eyes, and provide us information on how to improve the Eat24 software. It does this by controlling the device and security settings, managing the applications on the Tablet, as well as the ability to access, process, use and store any content, activity and other data on the Tablet, as further described below.
As a condition of use by Restaurant and its users, Restaurant will inform each user using the Tablet that in order to provide the Eat24 services, the MDM software will capture, process and store all activity on the Tablet, and will make all activity available to third parties.
Usage and Personal Data. Restaurant agrees that Eat24 may also process and share with certain third parties the Usage and Personal Data to manage Restaurant’s account, send service-related notifications, bill for purchased services, enforce compliance with the Agreement, facilitate the provisioning of Updates, improve of the MDM software and/or Service, better understand your business needs and comply with your contractual obligations and applicable law.
Non-removal of MDM and Eat24 Software. You and your Users are prohibited from removing or disabling the MDM software or removing the Eat24 App, unless and until you have paid Eat24 the fee to own the Tablet.
Remotely Wiping and Locking the Tablet. Eat24 may remotely wipe (erase) all of the content and applications on or after the date of termination of the Agreement while it is still in your possession. You agree that you will not hold us responsible for any liability arising from any of the content stored by Users on the Tablet which is erased by Eat24, whether during the term or after the term. Eat24 also may “lock” the Tablet (i.e. render it inoperable) at any time for any violation of the Agreement.
Eat24 Services currently allow a Customer to pay for a Customer Order through Eat24 via credit card, PayPal, Android Pay, Apple Pay, or through payment directly to the Restaurant, and Eat24 may add additional payment methods in the future. If the Customer Order is paid through Eat24, the full purchase price for such Customer Order, including sales and any other applicable taxes, shall be processed and received by Eat24 and, at least once per calendar month, Eat24 will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by Eat24, less Eat24's commission percentage (the "Commission Percentage") and the applicable merchant payment processing fee (the "Processing Fee"), via direct bank deposit or check, provided that Eat24 may withhold payments until Restaurant provides Eat24 with Restaurant's IRS Form W-9. The applicable Commission Percentage and Processing Fees are set below. If the Customer Order is to be paid directly to the Restaurant, then Eat24 may invoice the Restaurant for the Commission Percentage due on applicable Customer Orders, and the Restaurant shall pay such invoice within fifteen days of receipt via either credit card or check at Eat24's sole discretion. Late payments will bear interest at a rate equal to the lesser of one percent (1%) per month or the maximum interest rate otherwise permitted by applicable law.
7. Commission Percentage
The Commission Percentage shall be 12.50% of Restaurant's Net Sales. "Net Sales" means the gross amount charged by Restaurant to any customer that is attributable to any order through the Eat24 Service, less all: (a) taxes (e.g., sales tax, unless tax is included in menu item price), other than taxes based upon Eat24's net income, (b) gratuities, and (c) amounts allowed or credited due to returns.
8. Processing Fee
The following table sets forth the applicable Processing Fee for all permitted credit card merchants:
|PAYPAL||3% + $0.30|
|PARTNER TRANSACTION||3% + $0.30|
|MASTER CARD||3% + $0.10|
|VISA||3% + $0.10|
|DISCOVER||3% + $0.10|
Restaurant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Restaurant's use of the Website and the Eat24 Services. It is the Restaurant’s responsibility to ensure that each menu line item has the correct sales tax associated with that item in the Restaurant Owner Account and that taxes on delivery fees are accurately reflected in the Restaurant Owner Account. Eat24 may charge and collect sales tax from Customers on behalf of the Restaurant in accordance with instructions provided by the Restaurant or applicable law; and, in which case, Eat24 will collect such sales tax solely on behalf of the Restaurant and shall pay such amount collected to the Restaurant (or as may be otherwise required by applicable law). The Restaurant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. Sales tax shall include any sales, use, privilege, gross receipts, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Restaurant.
THE RESTAURANT SHALL BE SOLELY RESPONSIBLE FOR VERIFYING AMOUNTS COLLECTED BY EAT24, FILING THE APPROPRIATE TAX RETURNS, AND REMITTING THE PROPER AMOUNT TO THE APPROPRIATE TAXING AND REGULATING AUTHORITIES.
Cash Coupons give Customers with valid Eat24 accounts the ability to receive discount credits (not cash) on purchases from restaurants listed on Eat24. The Cash Coupons accrue in the Customer's account until (i) they expire, (ii) they are applied against a future order with a participating restaurant, or (iii) the Customer's account is closed.
Participation in the Cash Coupon program is at Restaurant's discretion. Restaurant selects the discount percent amount to be applied to Customers' Cash Coupons in the Restaurant's administration account page, which may be modified at any time. When a Customer places a Customer Order, the discount percent is applied against the amount owed to Eat24 by Customer for the Customer Order (the "Discount Amount") and added as a credit to the Customer's Cash Coupon account. Eat24 automatically deducts the Discount Amount from the amount otherwise payable to the Restaurant for that Customer Order. When a Customer with Cash Coupon credit places another Customer Order with a restaurant listed on Eat24, the restaurant will receive its normal share of the revenue, unless the restaurant is enrolled in the Cash Coupon program and another Discount Amount is applied.
Individual and monthly total Cash Coupon reports are available on the Restaurant account page. Restaurant may terminate its participation in the Cash Coupon program at any time without penalty or cost on the Restaurant's account page. The Cash Coupons have no cash value and are not transferable, unless otherwise required by law.
11. Restaurant Representations, Warranties, And Covenants
The Restaurant hereby represents, warranties, and covenants that:
- it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Restaurant's operation of its business;
- it will pay tips to employees and contractors in accordance with all applicable federal and state laws, and pay tips in a manner accepted and agreed upon by Restaurant and its employees and contractors.
- it will not offer for sale through Eat24 any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Eat24's then-current policies;
- it bears all risks to persons and property arising from its (or its employees' or service providers') contact with persons and property, and waives, and agrees to indemnify Eat24 for, any and all claims relating thereto against Eat24;
- the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant's Marketing Materials pursuant to the license rights granted to Eat24 by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
- the Restaurant's Marketing Materials do not violate any state or federal law, rule, or regulation, including with respect to electronic advertising; and
- the execution and delivery of this Agreement, and the performance of the transactions contemplated hereby, are within Restaurant's corporate powers, and have been duly authorized by all necessary corporate action.
12. Eat24 Content
Excluding the Marketing Materials, all of the content on the Website and included in the Eat24 Services (including without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics, the "Eat24 Content"), including the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Eat24, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All Eat24 graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Eat24 in the U.S. and/or other countries. Eat24's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Eat24. The Restaurant agrees not to circumvent, disable or otherwise interfere with any security related features of the Website or the Eat24 Services, or any other features that seeks to either prevent or restrict the use or copying of any Eat24 Content or enforce limitations on use of the Website, the Eat24 Services, or the Eat24 Content therein.
13. Customer Data
14. Independent Contractor Relationship
Nothing in this Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties, and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Restaurant shall comply with all applicable employment laws and obligations in connection with this Agreement. Each party shall be solely responsible for its employees and contractors in connection with this Agreement.
15. Term And Termination
This Agreement is effective upon the Restaurant's initial Registration Process and will remain in full force and effect for so long as the Restaurant is included on the Website as part of the Eat24 Services. Either Eat24 or the Restaurant may terminate this Agreement at any time, for any reason, with or without advance notice, by providing written notice to the other (email is fine; Restaurant may provide notice by emailing email@example.com). Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. Eat24 will, as soon as practicable following such termination, remove the Restaurant from inclusion in the Eat24 Services and the Website.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
If there is a dispute between the Restaurant and a Customer, the Restaurant understands and agrees that Eat24 is under no obligation with respect thereto, and the Restaurant, to the fullest extent permitted by law, hereby releases Eat24 and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and direct damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Eat24 Services.
17. Choice Of Law And Arbitration
- Any claim, controversy, cause of action or dispute that might arise between Restaurant and Eat24 ("Claim") will be exclusively governed by laws of the United States of America and the State of California consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction. Restaurant agrees that any subpoena, third-party discovery request, or other third-party process directed to Eat24 must issue from, or be domesticated by, the state or federal courts located within San Francisco County, California.
- All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA, WHICH IS THE PLACE OF PERFORMANCE OF THIS AGREEMENT.
- RESTAURANT AND EAT24 AGREE THAT EACH MAY BRING OR PARTICIPATE IN ACTIONS, CLAIMS OR PROCEEDINGS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH RESTAURANT AND EAT24 AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (C), AND THIS SUBSECTION (C) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
RESTAURANT ACKNOWLEDGES AND AGREES THAT IT AND EAT24 ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY WARRANTED IN THIS AGREEMENT, EAT24 AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE AND THE EAT24 SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EAT24 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S OR THE EAT24 SERVICES' CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE RESTAURANT'S ACCESS TO AND USE OF THE WEBSITE AND THE EAT24 SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF EAT24' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR OTHERWISE WITH RESPECT TO THE EAT24 SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE EAT24 SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE EAT24 SERVICES.
19. Limitations Of Liability
IN NO EVENT SHALL EAT24 OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO RESTAURANT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE WEBSITE OR THE EAT24 SERVICES, EVEN IF EAT24 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EAT24'S LIABILITY TO RESTAURANT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT OF COMMISSION PERCENTAGE EARNED BY EAT24 IF ANY, FOR THE EAT24 SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE RESTAURANT, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE RESTAURANT, AND THE RESTAURANT MAY HAVE ADDITIONAL RIGHTS.
The Restaurant hereby agrees to defend, indemnify and hold Eat24 and its affiliates, and each of their respective directors, officers, employees, services providers, and agents (collectively, the "Eat24 Indemnitees") harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any third party due to or arising out of the Restaurant's Marketing Materials, or any material breach by the Restaurant of this Agreement. Notwithstanding the foregoing, Eat24 reserves the right, at the Restaurant's expense, to assume the exclusive defense and control of any matter for which the Restaurant may be required to indemnify an Eat24 Indemnitee, and the Restaurant agree to cooperate, at the Restaurant's expense, with Eat24' defense of such claims. Eat24 will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding which may be subject to this indemnification upon Eat24 becoming thereof.
The Restaurant shall at all times maintain at its sole cost and expense comprehensive commercial general liability insurance (which may be under a blanket policy), issued by a licensed insurer rated A+10 or better in "Best's Insurance Guide", with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate, insuring without limitation the Restaurant against any liability arising out of the lease, use, occupancy, or maintenance of its premises and all areas appurtenant thereto, the operation of Restaurant's business, bodily injury, death, "broad form" property damage (including property in Restaurant's care, custody or control), and personal injury, and if Restaurant is selling alcohol, maintain liquor liability insurance coverage with a limit not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability.
Except as explicitly stated otherwise, any notices given to Eat24 shall be given by email to firstname.lastname@example.org. Any notices given to the Restaurant shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Restaurant from time to time); provided, however, that Eat24 may also give notices via regular mail.
Additionally, the Restaurant may contact Eat24 at the address, fax, and telephone number provided below (as may be updated by Eat24 from time to time):
Attn: Restaurant Support
140 New Montgomery Street
San Francisco, CA 94105
23. Entire Agreement And Non-reliance On Statements
This Agreement embodies the entire and exclusive agreement between the parties respecting the subject matter herein, and supersedes any and all prior related oral, emailed or written representations and agreements between the parties. No statements or promises by either party have been relied upon in entering into the Restaurant Agreement, except as expressly set forth herein.
24. Third Party Services
If you are an agency or third party service such as a delivery service (a "Third Party Service") that is signing up Restaurant for the Eat24 Services, this section applies to you (if not, this section does not apply to you). Third Party Service hereby agrees to this Agreement, will ensure fulfillment of Restaurant's obligations hereunder, and represents that Third Party Service has the authority to act on behalf of and bind Restaurant to this Agreement, and hereby does so. Third Party Services will comply with all federal and state laws and regulations regarding the the employment classification of, and disbursement of tips and other compensation to, its couriers and other contracted service providers, whether they are employees on contractors (“Couriers”). Third Party Service further agrees to indemnify, defend and hold harmless Eat24 for any claim arising out of or in connection with an allegation that (i) the Third Party Service was not authorized to act on Restaurant's behalf or bind Restaurant to this Agreement. (ii) Third Party Service’s performance of the services, including without limitation any personal injury or property damage caused by or to Third Party Service or its Couriers, and (iii) the negligence or willful misconduct of Third Party Service or its Couriers. Third Party Service also agrees that it will not, without Eat24's written consent, make any representation that it is an affiliate or partner of Eat24. Third Party Service will allocate tips collected for the express purpose of paying the tips to the Couriers. Third Party Service will (1) pay all tips to Couriers in accordance with all applicable federal and state laws, and (2) pay tips in a manner accepted and agreed upon by both Third Party Service and its Couriers. Under no circumstances may Couriers solicit tips from users. However, Couriers may keep unsolicited cash tips if volunteered by Users.
This Agreement and any order form accepted by Eat24 constitutes the entire agreement between the Restaurant and Eat24 regarding the use of the Eat24 Services; provided, further, that the Restaurant's use of and access to the Website and the Eat24 Services shall also be subject to the Term of Use ("TOU") (currently available here eat24hours.com/?SCR=s_terms ), but only to the extent that the TOU does not conflict with the terms of this Agreement. The failure of Eat24 to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Restaurant's account with Eat24 (including the Website and the Eat24 Services) may not be assigned by the Restaurant without Eat24' express written consent. This Agreement shall be binding on the parties’ permitted heirs, successors and assigns. Eat24 may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Restaurant shall not disclose the terms or conditions of this Agreement to any third party, including competitors of Eat24, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. This section “Miscellaneous”, as well as “Tablets for User of Eat24 Software”, “Payment”, “Taxes”, Restaurant Representations, Warranties, and Covenants”, “Term and Termination”, “Disputes”, “Limitation of Liability”, “Indemnification”, “Entire Agreement and Non-Reliance on Statements” shall survive any expiration or termination of this Agreement.
Eat24 may modify this Agreement from time to time, and any such changes that are deemed by Eat24 to be material, adverse to Restaurant or create new obligations on Restaurant will (i) be effective 30 calendar days after being posted on the Website and/or communicated to Restaurant in writing by Eat24, including via the Restaurant’s email address provided by Restaurant to Eat24, (ii) not apply retroactively, and (iii) not apply to any disputes arising prior to the effective date of such change. The Restaurant agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Website to keeping the Restaurant's contact information (as indicated in the Restaurant's account details via the Website) current.
Notwithstanding anything to the contrary herein, Eat24 reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Website and the Eat24 Services (or any part thereof) with or without notice. The Restaurant agrees that Eat24 shall have no liability to the Restaurant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the Eat24 Services.
Note: Prior version of this Agreement can be found here.