This Restaurant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant"), and Eat24, LLC (collectively, "Eat24"), 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").
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 (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.
Tablets for Use of the Eat24 Orders App
In connection with the Eat24 Services, Eat24 may provide Restaurant with a tablet or other device preloaded with Eat24's Eat24 Orders App (the "Tablet"). Such Tablet will be used by Restaurant solely for the purpose of submitting and confirming orders and payments for food and beverages, and delivery services in connection therewith, via the Eat24 Orders App. Restaurant consents to Eat24's monitoring of Restaurant's use of the Tablet for Eat24's business purposes. Additional Tablet chargers, if requested by Restaurant, will be distributed at a cost of $35 per charger, for which Eat24 may invoice Restaurant or deduct from any payments owed to Restaurant. 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. During Restaurant's business hours, while in possession of Tablet, Restaurant will use best efforts to maintain functioning Wi-Fi internet access.
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.
The Commission Percentage shall be 12.5% 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.
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. Eat24 may charge and collect sales tax from Customers as an agent 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 as an agent 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.
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.
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 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.
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.
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 firstname.lastname@example.org). 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 damages (actual and consequential) 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.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement, the Website, or the Eat24 Services shall be governed and construed by the laws of the State of California, excluding its conflicts of law rules. Any legal action of whatever nature by or against Eat24 arising out of or related in any respect to this Agreement, the Website, or the Eat24 Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over San Francisco County, California, and the Restaurant and Eat24 hereby agree to such venue as the sole and exclusive venue for the resolution of any disputes between the parties; subject, however, to the right of Eat24, at Eat24's sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a claim. The Restaurant hereby consents to (and waives any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. The place of performance of this Agreement is San Francisco, California. In no event shall any claim, action or proceeding by the Restaurant related in any way to this Agreement, the Website, or the Eat24 Services be instituted more than two (2) years after the cause of action first arose.
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.
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 PAID, IF ANY, BY THE RESTAURANT TO EAT24 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 party due to or arising out of the Restaurant's Marketing Materials, the Website, the Eat24 Services, or any 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.
Except as explicitly stated otherwise, any notices given to Eat24 shall be given by email to email@example.com. 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
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. 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.
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 Service further agrees to indemnify and hold harmless Eat24 for any claim arising out of or in connection with an allegation that the Third Party Service was not authorized to act on Restaurant's behalf or bind Restaurant to this Agreement. 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.
Eat24 may modify this Agreement from time to time, and any such changes will (i) be effective 30 calendar days after being posted on the Website or communicated to Restaurant in writing, including via email, by 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.