July 1st, 2020
“Clubfeast” and/or “Feast” refers to Clubfeast, Inc.
“Clubfeast Marketplace” means Clubfeast’s proprietary digital platform where Clubfeast subscribers and customers can find Restaurant Merchants and/or place an order for listed Restaurant Merchant Products via the Clubfeast website or mobile application for delivery by a Clubfeast Delivery Partner to the Customer. This is also referred to herein as the Clubfeast Platform.
“Restaurant Merchant” means the restaurant or entity that has agreed to participate in the Clubfeast Services.
“Clubfeast Delivery Partner” means independent third-party delivery contractor.
“Delivery API” means the Clubfeast application programming interface (API) that allows the Restaurant Merchant to exchange information with Clubfeast.
“Clubfeast Data” shall mean any information that Clubfeast provides or makes accessible to Restaurant Merchant through the Clubfeast Platform, including without limitation Personal Information.
“Clubfeast Services” means Clubfeast Marketplace and any other platforms as applicable.
“Customer” means the customer who places an order for Restaurant Merchant products through the Clubfeast Marketplace and any other relevant platforms.
“Marketplace Orders” means orders for Restaurant Merchant Products through the Clubfeast Marketplace from Clubfeast customers.
"Restaurant Merchant Portal" is an online website, which will be accessible at https://www.Clubfeast.com/Restaurant Merchant/through which Restaurant Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform.
“Restaurant Merchant Products” includes all products offered for take-out or delivery orders at Restaurant Merchant Stores as agreed upon.
“Restaurant Merchant Stores” means the Restaurant Merchant restaurant locations that participate in the Clubfeast Services.
“Marketplace Term” means the term of the agreement between Clubfeast and Restaurant Merchant for the Clubfeast Marketplace.
“Order Equipment” means and includes any equipment reasonably required by Clubfeast for Restaurant Merchant to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.
“Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
The Parties' Relationship. Clubfeast provides an online marketplace platform using web-based technology that connects Restaurant Merchants, independent delivery contractors ("Clubfeast Delivery Partners") and customers ("Platform"), as described in these Terms for Clubfeast Marketplace. Clubfeast is not a Restaurant Merchant or delivery service; it is an online connection platform. Restaurant Merchant and Clubfeast 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 Clubfeast and Restaurant Merchant (or Restaurant Merchant's employees, representatives or locations), Clubfeast and Clubfeast Delivery Partner, or Clubfeast and customers. 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.
Marketplace Core Responsibilities. For Restaurant Merchants that have agreed to participate in the Clubfeast Marketplace, Clubfeast and Restaurant Merchant shall have the following responsibilities during the Marketplace Term:
Clubfeast Core Responsibilities. Clubfeast will, in a timely manner:
Accept Marketplace Orders from Customers;
Display Restaurant Merchant’s logo; a listing of the Restaurant Merchant Stores; and a menu of Restaurant Merchant Products as agreed upon on the Clubfeast Platform;
Forward each Marketplace Order to the relevant Restaurant Merchant Store; and
Forward each Marketplace Order to a Clubfeast Delivery Partner, so that the Clubfeast Delivery Partner can pick up the applicable Restaurant Merchant Product(s) from the Restaurant Merchant Store to deliver to the Customer.
Restaurant Merchant Core Responsibilities. Restaurant Merchant will, in a timely manner:
Provide Clubfeast with the Restaurant Merchant’s dishes and their agreed upon price;
Monitor Restaurant Merchant’s menu and store information on the Clubfeast Marketplace, promptly make updates via the Restaurant Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify Clubfeast of any errors or changes in writing as applicable;
Accept all Marketplace Orders placed by Clubfeast from Restaurant Merchant’s then-current menu;
Confirm all Marketplace Orders from Clubfeast;
Prepare the Restaurant Merchant Products for each Marketplace Order for pickup by a Clubfeast Delivery Partner at the designated time;
Process Marketplace Orders in the order in which they are received;
Notify Clubfeast of any changes to the availability, pricing, description, or other characteristics of the Restaurant Merchant Products;
Notify Clubfeast of its days and hours of operation, and remain open for business on Clubfeast the same days and hours of operation as Restaurant Merchant’s in-store business; notify Clubfeast of any changes to Restaurant Merchant’s hours of operations on holidays; and notify Clubfeast if Restaurant Merchant closes earlier than Restaurant Merchant’s standard hours of operation or plans to close earlier than Restaurant Merchant’s standard hours of operation;
Notify all Restaurant Merchant store staff members of the relationship with Clubfeast immediately upon execution of this Agreement; and
Provide the same utensils, napkins, bags and other materials that Restaurant Merchant would normally provide in a standard take-out or delivery order, subject to sections below.
On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Restaurant Merchant Portal or via email as appropriate, and promptly communicate to Clubfeast any inaccuracies.
Refunds and Re-Orders. In the event that Clubfeast, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer’s Order, Restaurant Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of the Clubfeast Delivery Partner or Clubfeast.
Order Equipment. With respect to the Clubfeast Marketplace, Restaurant Merchant will install any equipment reasonably required by Clubfeast for Restaurant Merchant to receive and process Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by Clubfeast, Restaurant Merchant will pay Clubfeast 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 Clubfeast Platform in order to receive, process, and accept Marketplace Orders. Any Order Equipment provided by Clubfeast will remain Clubfeast’s sole property and may be used solely for purposes related to fulfilling Restaurant Merchant’s responsibilities under this Agreement. Restaurant Merchant will inspect all hardware and shall notify Clubfeast in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Clubfeast may restrict or rescind Restaurant Merchant’s right to use the Clubfeast Platform at any time. Restaurant Merchant will be responsible for any damage to or loss of any Order Equipment provided by Clubfeast (excluding ordinary wear and tear), which will be promptly reimbursed by Restaurant Merchant (at the replacement cost thereof). Clubfeast may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.
Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:
Clubfeast Marketplace. Clubfeast will pay for Marketplace fulfilled by Restaurant Merchant each month on a consistent day of the month, subject to change with at least 10 days’ notice to Restaurant Merchants by email or service notification.
If Restaurant Merchant has opted for Clubfeast to provide Order Equipment, Clubfeast will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Restaurant Merchant’s right to use the Order Equipment to access the Clubfeast Platform in order to receive, process, and accept Orders. Restaurant Merchant agrees Clubfeast may charge the customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in Clubfeast's sole discretion. Restaurant Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Restaurant Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Restaurant Merchant raises the price for a menu item, Clubfeast shall not be required to remit the higher price to the Restaurant Merchant until 3 business days after the Restaurant Merchant first provides notice to Clubfeast of such pricing change.
To the extent that a third-party provider provides services to Restaurant Merchant via the Platform (for example, a middleware provider) and charges fees to Clubfeast, Clubfeast may pass through such third party’s fees to Restaurant Merchant.
In some jurisdictions in the United States, Clubfeast may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Clubfeast will inform Restaurant Merchant that Clubfeast will remit Collected Taxes to the tax authority and Clubfeast will be relieved of any responsibility to remit such Collected Taxes to Restaurant Merchant.
Restaurant Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Restaurant Merchant Portal, and to promptly communicate to Clubfeast in writing any claimed inaccuracies, so that Clubfeast has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Clubfeast and Restaurant Merchant agree is in the best interests of both parties and their commercial relationship. Restaurant Merchant agrees to communicate to Clubfeast any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Restaurant Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Restaurant Merchant does not communicate a written claim or objection to Clubfeast regarding such transaction, fee, charge or order within such 60-day period.
Restaurant Merchant agrees that Restaurant Merchant holds title to the goods or products that Restaurant Merchant provides through the Platform until the goods are picked up from Restaurant Merchant, and that title passes from the Restaurant Merchant to the customer upon pickup at the Restaurant Merchant’s location. Restaurant Merchant agrees that neither the Clubfeast Delivery Partner nor Clubfeast holds title to or acquires any ownership interest in any goods or products that Restaurant Merchant prepares or provides through the Platform.
Payment Processing. Payment processing services for Restaurant Merchants on the Clubfeast Marketplace are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Restaurant Merchant 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 Clubfeast enabling payment processing services through Stripe, Restaurant Merchant agrees to provide Clubfeast accurate and complete information about Restaurant Merchant’s representative and its business, and Restaurant Merchant authorizes Clubfeast to share it and transaction information related to Restaurant Merchant’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.
Restaurant Merchant Content and Trademark; Photographs of Menu Items.
During the Marketplace Term, as applicable, Restaurant Merchant grants to Clubfeast a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Restaurant Merchant Content in the provision of providing services to Restaurant Merchant and in order to support general marketing. As used herein, “Restaurant Merchant Content” includes, without limitation, menus, photographs (either provided by Restaurant Merchant or on Restaurant Merchant’s website), trademarks, logos and other materials provided by Restaurant Merchant to Clubfeast.
If photographs of Restaurant Merchant’s menu items are not available or if they do not meet Clubfeast’s requirements, as reasonably determined by Clubfeast, then Restaurant Merchant consents to Clubfeast engaging a professional photographer to take photographs of Restaurant Merchant’s menu items and display such photographs on the Clubfeast Marketplace as representations of Restaurant Merchant’s menu items; provided that Restaurant Merchant may contact Clubfeast support to have such photographs removed from the Restaurant Merchant’s store listing and, in such event, Clubfeast will comply in a timely manner
The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Clubfeast Data is the Confidential Information of Clubfeast.
Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
Data Privacy and Security.
General. Restaurant Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Clubfeast Data, including without limitation Personal Information, except as required to perform under this Agreement. Restaurant Merchant shall keep Clubfeast Data secure from unauthorized access and maintain the accuracy and integrity of Clubfeast Data in Restaurant Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Restaurant Merchant becomes aware of any unauthorized access to Clubfeast Data, Restaurant Merchant will immediately notify Clubfeast, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Clubfeast. Restaurant Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Clubfeast and will be responsible for damages resulting from Restaurant Merchant’s failure to comply. Restaurant Merchant will not allow any third party to use the Clubfeast Platform and will be responsible for damages resulting from sharing Restaurant Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Restaurant Merchant’s account. Restaurant Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Clubfeast Platform; damage, destroy or impede the services provided through the Clubfeast Platform; transmit injurious code; or bypass or breach any security protection on the Clubfeast Platform.
Delivery API. During the Term, Clubfeast grants to Restaurant Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the services as mutually agreed upon. Restaurant Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature. 3. Order Information and Customer data: Clubfeast sends the Customer order’s information to the restaurant via email, fax, and/or third party service (example: Otter). Clubfeast sends a standardized set of information that is needed for the restaurant and the delivery driver to fulfill the order. In compliance with NY city laws, restaurants can opt in to getting customer’s data including their name, telephone number, e-mail address, the delivery address of the order and the contents of the order as long as the customer does not opt out. To op in getting data outside of that in the standardized Clubfeast Inc order communication, any NYC restaurant can email email@example.com subject: Restaurant Data Request: Opt In.
Termination. Restaurant Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice. Clubfeast may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Restaurant Merchant nor Clubfeast will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Restaurant Merchant or Clubfeast.
Modifications. Clubfeast 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. Clubfeast may, at its sole discretion, remove Restaurant Merchant Products or Stores from the Clubfeast Marketplace if Clubfeast determines that such Restaurant Merchant Product or Restaurant Merchant Store could subject Clubfeast to undue regulatory risk, health and safety risk, or other liability. Clubfeast 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.Clubfeast.com/Restaurant Merchant/Restaurant Merchant-terms/. We will notify Restaurant Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, (ii) all applicable laws related to third party intellectual property and other proprietary rights.
Restaurant Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed Clubfeast of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Restaurant Merchant Product(s) and it will inform Clubfeast of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Restaurant Merchant’s menu items listed on the Clubfeast Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Restaurant Merchant’s menus on the Clubfeast Marketplace or request delivery of any age-restricted products through the Clubfeast Platform without first entering into a separate agreement with Clubfeast memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) it will not disclose any information related to a Clubfeast Delivery Partner or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Clubfeast HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE Clubfeast PLATFORM, THE DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF RESTAURANT MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Restaurant Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Clubfeast shall not be responsible to Restaurant Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Clubfeast services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Clubfeast, Clubfeast Delivery Partners (or, in the case of Restaurant Merchant as the Indemnifying Party, caused by the Restaurant Merchant 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, Restaurant Merchant will defend, indemnify and hold harmless Clubfeast 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 Restaurant Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Clubfeast. 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. Clubfeast assumes no liability, and shall have no liability, for any infringement claim pursuant to section 14(iii) above based on Restaurant Merchant’s access to and/or use of the Clubfeast Platform following notice of such an infringement claim; any unauthorized modification of the Clubfeast Platform by Restaurant Merchant; or Restaurant Merchant’s combination of the Clubfeast Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
Limitation of Liability. EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO Clubfeast BY RESTAURANT MERCHANT 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.
Insurance. During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled 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.
Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH Clubfeast AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Clubfeast may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Clubfeast and Restaurant Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST Clubfeast—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH Clubfeast, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Clubfeast IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Clubfeast’s registered agent. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available athttp://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available athttp://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. In addition, Clubfeast will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Clubfeast. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Clubfeast.
Waiver of Jury Trial. YOU AND Clubfeast WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Clubfeast are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 17(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Waiver of Class or Consolidated Actions; Severability. YOU AND Clubfeast AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE RESTAURANT MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Clubfeast is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20, and all other provisions of this Section 19 (Dispute Resolution) shall remain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19.
Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Clubfeast can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Clubfeast in writing of your intention to opt out by sending a letter, by First Class Mail, to Clubfeast, Inc., 303 2nd Street, Suite 800, South San Francisco, CA, 94107. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first order on the Platform. Your notice must include your name and address, your Clubfeast username (if any), the email address you used to set up your Clubfeast account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one Restaurant Merchant, and letters that purport to opt out multiple Restaurant Merchant will not be effective as to any. No Restaurant Merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons.. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
Survival. This Arbitration Agreement will survive any termination of your relationship with Clubfeast.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Clubfeast makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
Litigation Class Action Waiver. To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Restaurant Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Restaurant Merchant opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Restaurant Merchant 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 Restaurant Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Restaurant Merchant 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.
Franchisees. Franchisees operating a restaurant concept licensed by Restaurant Merchant 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 Clubfeast to the Franchisee.
Partner Code of Conduct. Restaurant Merchant agrees to comply with the https://www.Clubfeast.com/partner/code-of-conduct which may be updated by Clubfeast from time to time.
Communications from Clubfeast. Restaurant Merchant agrees to accept and receive communications from Clubfeast or Clubfeast Delivery Partners, including via email, text message, calls, and push notifications to the cellular telephone number Restaurant Merchant provides to Clubfeast. Restaurant Merchant acknowledges that Restaurant Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Clubfeast, its affiliated companies and/or Clubfeast Delivery Partners. Restaurant Merchant may opt out of such communications in Restaurant Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.
Attorneys’ Fees. In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.
General Provisions. As set forth on the Sign-Up Sheet between Restaurant Merchant and Clubfeast, 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. In consideration of Clubfeast's agreement to utilize the law of the Restaurant Merchant's place of business, Restaurant Merchant 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. Restaurant Merchant may not assign this Agreement in whole or in part without Clubfeast’s prior written consent. Clubfeast 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). Clubfeast’s address is 303 2nd Street, Suite 800, South 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.