Merchant Terms and Conditions
Terms and Conditions documents for merchants
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Terms and Conditions documents for merchants
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These General Terms and Conditions (“General Terms”) are expressly incorporated into and made a part of the Foodcliff Member Restaurant Agreement (“Restaurant Agreement”) (the Restaurant Agreement and these General Terms known, collectively as, the “Agreement”) regarding participation between Foodcliff Inc., a Wisconsin corporation, d/b/a Foodcliff (the “Company” or “Foodcliff”), and the merchant restaurant partner (the “Restaurant” or “you”) (collectively, the “Parties”). By using any of the merchant programs offered by Foodcliff, you or the entity you represent agree on behalf of all participating restaurant locations to be bound by these this Agreement.
1. Term and Termination. This Agreement shall commence on the Effective Date and, unless earlier terminated as provided below, shall continue for a period of six (6) months from the Effective Date (“Initial Term”) and shall automatically renew for successive six (6) month periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement in the event of a material breach by the other party if the breach is not cured by the other party within two (2) days’ notice thereof by the non-breaching party. Either party may terminate this Agreement in its entirety at any time without cause by giving ten (10) days’ prior written notice of termination to the other party.
2. Advertising. You agree to advertise Foodcliff while rendering on-demand food ordering services for end consumers via branding your premises tastefully with Foodcliff brand marks and word-of-mouth.
3. Payment, Fees, and Taxes. Foodcliff will pay for Orders filled by you on a consistent day of the week, subject to change with no less than 10 days notice via email. Restaurant shall be responsible for all taxes, duties, and other governmental charges on the sale of Products under this Agreement and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. For Restaurants in Canada, Restaurant shall also be responsible for all taxes, duties, and other governmental charges on the any promotional fees, which Foodcliff shall however be responsible for withholding and remitting to the revenue authorities. Restaurant is responsible for and shall indemnify and hold harmless Foodcliff against all income and payroll taxes of any kind arising out of the compensation that Foodcliff pays to Restaurant under this Agreement. Payment processing is provided by Stripe and is subject to the , which includes the . Pursuant to this Agreement, you also agree to be bound by the and the , as modified or amended. You agree to provide Foodcliff accurate and complete information about the Restaurant, and you authorize Foodcliff to share such information and transaction information related to your 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. Any amounts not paid within 30 days of the date due will bear a monthly charge equal to the greater of 1% of the outstanding balance or the maximum amount allowed by law. Restaurant shall be liable for all fees incurred by Foodcliff for bounced checks, insufficient funds, bank overdraft fees, or chargebacks.
4. Intellectual Property.
(a) License to Marks; Restrictions. Foodcliff shall own any and all intellectual property rights associated with any and all content created by Foodcliff. This content includes, but is not limited to, the design, photos, graphics, source code, work-up files, text and any other programs specifically designed for or purchased on behalf of the Restaurant in connection with this Agreement. Subject to the terms and conditions of this Agreement, each party hereby grants to the other (and, in the case of Company, also to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use that party’s respective Marks, on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in the applicable Restaurant Agreement. “Marks” as used herein shall refer to all trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s marks without the prior, express, written consent of the other party (email is sufficient). All goodwill related to the use of a party’s marks by the other party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither party shall be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Each Party acknowledge and agrees that it shall not develop the technology, content, media, or other intellectual property of the other party pursuant to this agreement without a separate written agreement between the parties prior to the commencement of any such activities. This section shall survive any termination of this Agreement or your relationship with the Company.
5. Confidential Information.
(a) Definition. “Confidential Information” means any confidential, proprietary or other non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement, whether disclosed verbally, in writing, or by inspection of tangible objects, and shall include without limitation all information, formulae, compilations, software or codes, devices, methods, techniques, drawings, inventions, patterns, processes, know-how—whether patentable orr not patentable and whether or not at a commercial stage—names, buying habits, or practices of consumers, marketing methods and related data, names of any vendors or suppliers, prices at which products or services are sold, any other confidential information of, about, or concerning business of the other party, its manner of operation, or other confidential data of any kind, nature, or description, including the terms of this Agreement. Confidential Information will not include that information that:
(i) was rightfully known to the Receiving Party without restriction on its use or disclosure prior to being disclosed to the Receiving Party in connection with this Agreement;
(ii) was or is received by the Receiving Party from a third party that was/is not known to be under any obligation to maintain its confidentiality;
(iii) the Receiving Party can show was independently developed by the Receiving Party without access to or use of the Confidential Information; or
(iv) was in or enters the public domain, unless by the fault of the Receiving Party.
(b) Requirements. Each party will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the other party’s Confidential Information. Each party agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Agreement, the other party’s Confidential Information. Each party will ensure that Confidential Information will only be made available to its employees and agents who have a need to know and who are be bound by written obligations of confidentiality at least as protective of the party’s Confidential Information as this Agreement is, before any such individual has access to the other party’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the owner of the Confidential Information has authorized such disclosure, nor to the extent a party is required to disclose certain Confidential Information as a matter of law or by order of a court, provided that the disclosing party gives the other party prior written notice of such obligation to disclose and shall reasonably assist in obtaining a protective order before making such disclosure. Upon expiration or termination of this Agreement or as requested by any party, the other party will deliver to that party (or destroy at that party’s election) any and all materials or documents containing that party’s Confidential Information, including without limitation originals and copies—electronic or otherwise—of any such Confidential Information. This section 5 shall survive any termination of this Agreement or your relationship with the Company.
(c) Trade Protections. The parties stipulate that as between them, Confidential Information comprises trade secrets that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use. The parties also stipulate that reasonable efforts will be made to maintain the secrecy of Confidential Information, and that any breach of this Section is a material breach of this Agreement.
(d) Privacy. You shall maintain the accuracy and integrity of any Personal Data provided by us and in your possession, custody or control. You agree to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performance under this Agreement. “Personal Data” means any information obtained in connection with this Agreement:
(i) relating to a natural person;
(ii) that can be used to reasonably identify or authenticate an individual, including but not limited to name, contact information, specific location, persistent identifiers; and
(iii) any information that may otherwise be considered personal data or personal information under applicable law.
6. Insurance. During the Term and for one (1) year thereafter, each party shall maintain commercial general liability and, as required by law, worker’s compensation insurance. Such commercial general liability insurance policy limits shall be at least one million U.S. dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and at least two million US. dollars ($2,000,000) in the aggregate. All policies shall be written by reputable insurance companies with a Best’s policyholder rating of not less than “A”. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice to the other party. Upon a party’s request, the other party shall provide evidence of the insurance required herein. Upon Company’s reasonable commercial request, Restaurant shall name the Company as an additional insured under its policy and deliver proof to Company of same. In no event shall the limits of any policy be considered as limiting the liability of a party under this Agreement.
7. Representations and Warranties; Disclaimer.
(a) Warranties. This section shall survive any termination of this Agreement or your relationship with the Company. Each party hereby represents and warrants that:
(i) it has full right, power, and authority to enter into this Agreement and perform its obligations hereunder without breaching any obligation to a third party;
(ii) it will comply with all applicable laws and regulations in its performance of this Agreement (including without limitation all applicable data protection and privacy laws); and
(iii) the content and other materials used or provided as part of this Agreement shall comply with all third party intellectual property rights and rights of publicity applicable.
(b) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE COMPANY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. Indemnity. Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates, directors, officers, 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 claim arising out of or related to:
(a) any claims that the Indemnifying Party breached its representations and warranties in this Agreement;
(b) the negligence or willful misconduct of the Indemnifying Party and its employees or agents (excluding Foodcliff to the extent it is your agent pursuant to a Restaurant Agreement) during performance of this Agreement;
(c) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel (or, in the case of Restaurant as the Indemnifying Party, caused by the Restaurant’s products); or
(d) any claims that the Indemnifying Party’s Marks infringe on any third party’s intellectual property rights, so long as such Marks have been used in the manner approved by the Indemnifying Party.
In addition, you will indemnify, defend and hold harmless the Company from and against any and all Losses with respect to any third party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or willful misconduct of Company or its agents. Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, that imposes any obligation on the Indemnified Party, without express written consent of the Indemnified Party, which will not be unreasonably withheld. This section shall survive any termination of this Agreement or your relationship with the Company.
9. Liability Limits. Except for the indemnification obligations or a breach of confidentiality hereunder, in no event shall either party be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business or any third party arising out of this agreement, or loss or inaccuracy of data of any kind, whether based on tort, contract, or any other legal theory, even if such party has been advised of the possibility of such damages. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. Each party’s total aggregate liability of each and every kind under this agreement shall not exceed the net amount paid by the parties to one another under this Agreement during the previous six (6) months.
10. Publicity. Except as may be expressly agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
11. Equitable Remedies. Restaurant acknowledges and agrees that Restaurant’s breach of this Agreement may cause irreparable harm to Company that could not be adequately compensated by the payment of damages. Therefore, in addition to all remedies at law, Restaurant agrees that Company is entitled to all equitable remedies available, including specific performance and temporary, preliminary, and permanent injunctive relief.
12. Arbitration. PLEASE READ THE FOLLOWING CAREFULLY REGARDING LIMITATIONS OF THE MANNER IN WHICH YOU MAY SEEK RELIEF. In connection with any dispute or claim arising out of or in connection with the Agreement, Restaurant and Company agree to arbitrate exclusively such dispute before a single arbitrator mutually agreed upon by the parties or by the designation of the Wisconsin Association of Mediators. The arbitration shall take place in Waukesha, Wisconsin, or in the office of an arbitrator closest to that city. The arbitrator must apply Wisconsin law, and any award will be binding, final, and non-appealable. The prevailing party in arbitration shall be entitled to its reasonable attorney’s fees. Any dispute resolution proceedings will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative, or private attorney general action unless Restaurant and Company agree to same in writing. Therefore, you waive your right hereby to a jury trial. If you wish to opt out of this section, you must notice the Company in writing no later than 30 days after first becoming subject to this Agreement. Your notice must contain your name, address, username(s), email attached to your account, and a clear statement that you wish to opt out of this section, though all other parts of the Agreement shall apply to you. This section shall survive any termination of this Agreement or your relationship with the Company.
13. Additional/General Terms. This section shall survive any termination of this Agreement or your relationship with the Company.
(a) Choice of Laws. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin without regard to its conflict of laws provisions. You hereby consent to exclusive jurisdiction and venue in the state and federal courts sitting in Dane County, Wisconsin.
(b) Notices. Any and all notices permitted or required to be given hereunder shall be sent to the address first set forth on the Restaurant Agreement, or such other address as may be provided, and deemed duly given upon actual delivery, if delivery is by hand, one (1) day after being sent by overnight courier, charges prepaid, return receipt obtained, or, by electronic mail to the designated recipient. In addition, you agree to receive autodialed calls or SMS messages sent by or on behalf of Company.
(c) No Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
(d) Modifications. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both parties. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
(e) No Waiver; Force Majeure. Any delay in or failure by either party in performance of this Agreement shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of nature, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure” event). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use all commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.
(f) Transmutation. This Agreement may not be assigned or transferred by either party without the other party’s prior written consent, except Company may assign or transfer this Agreement to any assignee of all or substantially all of its assets or to the surviving entity in any merger or other reorganization of Company. Except as otherwise provided in this Agreement, all provisions of this Agreement bind, inure to the benefit of, and are enforceable by and against the respective heirs, executors, administrators, personal representatives, successors, and permitted assigns of either party.
(g) Relationship of Parties. Nothing in this Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in a Restaurant Agreement), 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. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement.
(h) Entire Agreement. This Agreement comprises the entire agreement between the parties and supersedes all prior agreements and undertakings, both written and oral, with respect to this subject matter. Except as otherwise expressly provided in this Agreement, this Agreement is not intended to confer any rights or remedies upon any other person. This Agreement may not be amended or modified except by a written instrument signed by both parties.
(i) Headings; Misc. The Section headings are for convenience of reference only and are not intended to be a part of or to affect the meaning of any of the provisions of this Agreement. All references to Sections contained in this Agreement refer to the sections of this Agreement. In this document, the words include, includes, and including mean include without limitation, includes without limitation and including without limitation, respectively. Include, includes, and including are words of illustration and enlargement, not words of limitation or exclusivity. No presumption against any party (or its counsel) exists on the ground that the party (or its counsel) was responsible for preparing this Agreement or any part of it.