RESTAURANT PARTICIPATION AGREEMENT
Last Updated Date: October 25, 2021
This Restaurant Participation Agreement (this “RPA”) is a binding contract between Business (defined below) and Owner.com, Inc. (“Owner”). This RPA sets forth the terms pursuant to which Business may be permitted to use or access certain technology made available by Owner that powers direct online ordering and provides restaurants information relating to those orders (the “Platform” and the Platform, together with any services provided to Business by or on behalf of Owner in connection with Business’s use of the Platform, the “Service”).
ACCEPTING THIS RPA, EITHER BY CLICKING A BOX INDICATING BUSINESS’ ACCEPTANCE, ENTERING INTO AN ORDER (AS DEFINED BELOW), OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, OR OTHERWISE AFFIRMATIVELY INDICATING BUSINESS’ ACCEPTANCE OF THIS AGREEMENT, YOU, THE INDIVIDUAL ACCEPTING THIS RPA: (A) AGREE TO THIS RPA ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Business”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND BUSINESS TO THIS RPA. IF YOU DOES NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THE TERMS OF THIS RPA, YOU MUST NOT ACCEPT THIS RPA AND NEITHER YOU NOR THE BUSINESS MAY USE OR ACCESS THE SERVICE.
The Service enables patrons of restaurants (such patrons of the Restaurant(s), “Customers”) to order and pay for items from those restaurants. Business may receive one or more order forms, confirmations or other ordering documents issued by Owner which may set forth additional information, including fees, applicable to Business’ use of the Services (each an “Order”) for restaurants operated by Business (each, a “Restaurant”).
Material Terms: As provided in greater detail in this RPA (and without limiting the express language below), Business acknowledges the following:
- the Platform is licensed, not sold to Business, and that Business may use the Service only as set forth in this RPA;
- the Platform, Service, and Tablets (as defined below) and Printers (as defined below) are provided “as is” without warranties of any kind and Owner’s liability to Business is limited; and
- disputes arising hereunder will be resolved by binding arbitration. By accepting this RPA, as provided in greater detail in Section 20 of this RPA, Business and Owner are each waiving the right to a trial by jury or to participate in a class action.
- Setup and Equipment Fees. Owner may charge Business a setup fee when Business starts using the Services as indicated in the applicable Order (“Setup Fee”). As a part of that setup, Owner may also provide Business with one or more Tablets (defined below) for use in connection with the Services. Owner may charge Business a monthly per-Tablet fee as indicated in the applicable Order for Tablets that Owner makes available to Business (the “Tablet Fee”). If Business chooses to purchase Tablets provided to Business by Owner, and Owner provides an option for Business to do so, Owner may charge a fee per Tablet, as agreed by Owner and Business at the time of that purchase (the “Purchase Fee”). Additional terms applicable to Tablets are set forth in Section 7. The monthly Tablet Fee (if any) will be charged in advance on a monthly basis, until Owner receives Business’ Loaned Tablets in accordance with Section 7.B. As a part of Setup, Owner may also provide Business with one or more Printers (defined below) for use in connection with the Services. Owner may charge Business a monthly per-Printer fee as indicated in the applicable Order for Printers that Owner makes available to Business (the “Printer Fee”). If Business chooses to purchase Printers provided to Business by Owner, and Owner provides an option for Business to do so, Owner may charge a fee per Printer, as agreed by Owner and Business at the time of that purchase (the “Purchase Fee”). Additional terms applicable to Printers are set forth in Section 8. Setup Fees, Tablet Fees (if any), Printer Fees (if any), and Purchase Fees (if any) are due in advance and Business authorizes Owner to automatically charge those fees to the credit card or other payment method Business provides upon registration with the Service. The monthly Printer Fee (if any) will be charged in advance on a monthly basis, until Owner receives Business’ Loaned Printer in accordance with Section 8.B. Owner uses a third party to process credit card transactions and does not store Business’ credit card information. Business agrees to keep its payment information up to date, and may review its payment plan and other account details in the dashboard on the Service.
- Transactions and Deliveries. For each order placed by a Customer through the Platform (each a “Customer Order”), Owner will charge Business the transaction fees indicated in the Order (“Transaction Fee”). If the Customer Order is for delivery by one of Owner’s delivery partners (each, a “Delivery Partner”), Owner will additionally charge Business the delivery fee calculated as indicated in the Order (“Delivery Fee”), which may be calculated as a percentage of the total price of the Customer Order. Business acknowledges that Owner may charge the Customer directly for the Customer Order, and Business hereby authorizes Owner and its third party payment processors to collect from such Customers, on Business’ behalf, payment for such Customer Orders. Owner will remit to Business any such amounts less the Transactions Fees and Delivery Fees owed, if any (“Balance Payments”). Business will be responsible for the payment of any refunds, chargebacks or other fees incurred in connection with a Customer Order and Business agrees to reimburse Owner for amounts actually paid by Owner for those refunds, chargebacks or other fees. Owner reserves the right to offset any amounts Business owes to Owner against the Balance Payments. Business acknowledges that the prices charged to the Customer will be based on the pricing information that Business provides through the Service, and that it is Business’ responsibility to keep such pricing information up to date.
- Taxes. All fees and amounts payable by Business to Owner are exclusive of all applicable sales, use, withholding, excise, value added or other taxes, duties, or other charges levied by any governmental authority in connection with Business’ use of the Service, loan or purchase of a Tablet, or a Customer Order (collectively, “Taxes”). Business will be responsible for the payment of all Taxes (other than those based on Owner’s net income) incurred in connection with its use of the Services or any Customer Order.
- Accounts on the Service. To create an account on the Service, Business may be required to provide the name of a contact person for the Business, Business’ name, Business address(es) (including the address(es) of each Restaurant), email address and payment information for Business’ payment method, which may include Business’ credit card or bank account information and billing address. Business represents and warrants that all such information that Business provides to Owner is accurate, and Business agrees to keep such information up to date.
- Generally. Business will not act in a manner that disfavors or deprioritizes the fulfilment or delivery of Customer Orders placed on or through the Service. In all cases, Business will prepare food and beverages in accordance with the Customer Orders and with the same quality of food and beverage served to Customers who dine in-person or otherwise order independently from the Services. Business will use commercially reasonable efforts to prepare the order as soon as reasonably practicable. In the event that demand at a given location exceeds Business’s capacity (as determined by Business in its sole discretion), Business will have the right to request that Owner customer service suspend Customer Orders for a given location for a mutually agreed upon timeframe and Owner will make reasonable efforts to accommodate those requests. The foregoing will not apply to Customer Orders placed by Customers prior to Business making the suspension request.
- Deliveries. Business will indicate to Owner, either on the Order or otherwise via the Service for each Restaurant, whether delivery will be provided by the Restaurant or by Delivery Partners, along with any geographic limitations on delivery. Upon receiving a Customer Order for delivery, Business will promptly provide to Owner via the Service the expected prep time for the Customer Order, and, if the Customer Order is designated for delivery to be handled by Restaurant, the expected delivery time. Business will endeavor to have the Order available for pickup no more than 30 minutes from Business’s receipt of the applicable Customer Order. Business will promptly inform Owner via the Service of any delays in food preparation through the Service or as otherwise instructed by Owner (which may be directly to the delivery person, via the Service, or otherwise). Business acknowledges that the delivery services are not provided by Owner, and Owner makes no warranties with respect to the timely delivery of any food or drink. Business will bear all risk of loss of any food or drink in transit for all deliveries.
- Food and Safety. Business and its employees and contractors will prepare and handle food in accordance with industry practices and in compliance all applicable food safety laws and regulations, including the Food Safety and Inspection Service Guidelines as set forth by the United States Department of Agriculture Food Safety and Inspection Service and any other applicable food handling rules.
- Tobacco and Alcohol. Business may not offer or sell any tobacco products or tobacco related products on or through the Service. Except as otherwise agreed between Business and Owner, Business may not offer or sell alcoholic beverages, whether for pickup or delivery on or through the Service.
- Owner Claims No Ownership. The Service may provide Business with the ability to create or post content (“Business Content”) (e.g., menus and other information about the Restaurant(s)). Owner claims no ownership over Business Content. Business and its third party licensors, as appropriate, retain all copyright, patent, and trademark rights to the Business Content. Business is solely responsible for protecting those rights, and acknowledges that Business Content is non-confidential and non-proprietary.
- Owner’s Use of Business Content. By creating, posting, or sharing Business Content on or through the Service, Business hereby grants Owner a worldwide, non-exclusive, royalty-free license to use, modify, remove, publish, transmit, or display Business Content solely in conjunction with the operation of the Service and any marketing or advertising of the Service. Owner will discontinue this licensed use within a commercially reasonable period after the expiration or termination of this RPA. If Business objects in any way to Owner’s alteration or manipulation of the Business Content, Business will promptly notify Owner, and Owner will consider any reasonable requests regarding its use of the Business Content. Owner reserves the right to refuse to accept, post, display, or transmit any Business Content in its sole discretion.
- Third-Party Services. Owner may provide tools through the Service that enable Business to export information to third-party services. By using one of these tools, Business agrees that Owner may transfer that information to the applicable third-party service. Third-party services are not under Owner’s control, and is not responsible for any third-party service’s use of Business’ exported information. The Service may also contain links to third-party websites. Linked websites are not under Owner’s control, and Owner is not responsible for their content.
- Owner Content. Owner hereby authorizes Business, subject to the terms of this RPA, to access and use the designs, text, graphics, images, video, information, logos, button icons, software (including mobile applications and hosted software services), audio files, computer code, Third Party Content (as defined below), and other Owner content included within the Service (collectively, “Owner Content”) solely for the use of the Service. Any other use is expressly prohibited. All Owner Content and the compilation (meaning the collection, arrangement, and assembly) of all Owner Content are the property of Owner or its licensors and are protected under copyright, trademark, and other laws. Unauthorized use of the Owner Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. Business must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Owner Content.
- All Owner Rights Reserved. Business acknowledges that the license granted in Section 5.A confers no title or ownership and is not a sale of any rights in the Owner Content, and understands that this RPA is not intended to confer, and does not confer, any rights or remedies on any person other than a non-exclusive, non-transferable, non-sublicensable, limited license. Owner retains all intellectual property rights in the Service and Owner Content, including, without limitation, all patent, copyright, and trademark rights. All rights not expressly granted to Business are reserved solely to Owner. There are no implied licenses granted hereunder.
- Third Party Content. The Service may contain content from Owner’s licensors, including from Customers (“Third Party Content”). Business acknowledges that Business will not obtain, as a result of Business’ use of the Service, any right, title, or interest in or to Third Party Content delivered via the Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the Third Party Content. Except as expressly permitted by this RPA, Business may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Third Party Content.
Marketing and Publicity
- Marketing Materials. Owner may, from time to time, provide Business with marketing materials, which may include fliers, door decals, signs, or other materials (“Marketing Materials”). Subject to Section 6.B below, Business may use the Marketing Materials that Business finds acceptable in its reasonable discretion. Business may not modify any Marketing Materials without Owner’s prior written consent. Owner will retain all right, title, and interest in and to all Marketing Materials provided to Business under this Agreement.
- Marketing Efforts. Business shall use commercially reasonable efforts to conduct the following marketing activities during the Term: (i) hand out fliers or other Marketing Materials, as applicable, to Customers or other patrons of the Restaurant promoting the Services, (ii) refer Customers who call Restaurants to place an order to place an order online via the Service instead, or (iii) promote the Service by emailing or SMS messaging Customers, in each case, conducted in compliance with all applicable law.
- Website. Within 30 days from the date Business first uses the Service, and thereafter at all times during the term of the RPA, Business will feature on its website Owner’s company name and logo, a narrative description of the Services as they apply to the relationship contemplated hereunder, and a hyperlink to Owner’s website (“Owner Reference”). Business and Owner will agree upon placement, appearance and content of the Owner Reference prior to making the Owner Reference public. Business will remove any Owner Reference promptly upon Owner’s request.
- Publicity. Owner may use Business’s name and logo in its marketing materials, press releases, and on its website solely to identify Business as a user of the Services.
- Generally. For the purposes of this RPA, “Tablet” means configured tablets (i) for which the Service is optimized and (ii) provided to Business by Owner. Any firmware or other software that is preinstalled in the Tablets is “Owner Content” under this RPA and is licensed to Business in accordance with Section 5. Owner may, in its sole discretion, provide support for Tablets and any software preinstalled on Tablets.
- Loaned Tablets. Business will use Tablets in a careful and lawful manner and will not make any alterations, additions, or improvements to such Tablets without Owner’s prior written consent. Business will take reasonable and prudent care to maintain such Tablets in a safe and secure manner. Business will be responsible for the entire replacement cost of any such Tablet that is lost, stolen, or damaged. Business will immediately notify Owner if any such Tablet is lost, stolen, or damaged. Upon termination of this RPA, Business will return all loaned Tablets to Owner within five business days (the “Return Period”). If Business fails to return Tablets within the Return Period, Owner reserves the right to charge Business the replacement cost of such unreturned Tablets. Loaned Tablets are loaned, not sold, to Business, solely for Business’ use during the term of this RPA. Nothing in this RPA transfers ownership of any loaned Tablet to Business, and Business has no title or property interest in the loaned Tablets. Business will keep the loaned Tablets free of all security interests, liens, and other encumbrances.
- Purchased Tablets. The terms in this Section 7.C only apply to Tablets that Business purchases from Owner.
- Risk of Loss; Title. All purchased Tablets are subject to a shipment contract. This means that the risk of loss and title for such purchased Tablets will pass to Business upon Owner’s delivery to the carrier. Owner will not ship a purchased Tablet until it has received the Purchase Fee for such Tablet.
- Returns and Refunds. If Business is dissatisfied with a purchased Tablet, Business may return it at its own cost for a full refund within 30 days of the date Business receives that Tablet.
- Shipping. Currently, the Service and Tablets are only available to Businesses in the United States. Owner will bear the cost of shipping the Tablets to Business.
- Pass-Through Warranty. Whether Business is loaned or purchases a Tablet, Business acknowledges that each Tablet is provided to Owner by third party equipment manufacturers. Owner will, to the extent transferable, pass through to Business the warranty, if any, as provided to Owner by such third party equipment manufacturers.
- Generally. For the purposes of this RPA, “Printer” means configured printers (i) for which the Service is optimized and (ii) provided to Business by Owner. Any firmware or other software that is preinstalled in the Printer is “Owner Content” under this RPA and is licensed to Business in accordance with Section 5. Owner may, in its sole discretion, provide support for Printers and any software preinstalled on Printers.
- Loaned Printers. Business will use Printers in a careful and lawful manner and will not make any alterations, additions, or improvements to such Printers without Owner’s prior written consent. Business will take reasonable and prudent care to maintain such Printers in a safe and secure manner. Business will be responsible for the entire replacement cost of any such Printer that is lost, stolen, or damaged. Business will immediately notify Owner if any such Printer is lost, stolen, or damaged. Upon termination of this RPA, Business will return all loaned Printers to Owner within five business days (the “Return Period”). If Business fails to return Printers within the Return Period, Owner reserves the right to charge Business the replacement cost of such unreturned Printers. Loaned Printers are loaned, not sold, to Business, solely for Business’ use during the term of this RPA. Nothing in this RPA transfers ownership of any loaned Printer to Business, and Business has no title or property interest in the loaned Printers. Business will keep the loaned Printers free of all security interests, liens, and other encumbrances.
- Purchased Printers. The terms in this Section 8.C only apply to Printers that Business purchases from Owner.
- Risk of Loss; Title. All purchased Printers are subject to a shipment contract. This means that the risk of loss and title for such purchased Printers will pass to Business upon Owner’s delivery to the carrier. Owner will not ship a purchased Printer until it has received the Purchase Fee for such Printer.
- Returns and Refunds. If Business is dissatisfied with a purchased Printer, Business may return it at its own cost for a full refund within 30 days of the date Business receives that Printer.
- Shipping. Currently, the Service and Printers are only available to Businesses in the United States. Owner will bear the cost of shipping the Printers to Business.
- Pass-Through Warranty. Whether Business is loaned or purchases a Printer, Business acknowledges that each Printer is provided to Owner by third party equipment manufacturers. Owner will, to the extent transferable, pass through to Business the warranty, if any, as provided to Owner by such third party equipment manufacturers.
Loyalty Programs and Promotions
- Loyalty Programs. The Service may enable Business to offer Customers loyalty points or other program through which Customers may receive rewards or benefits for placing Customer Orders with Business (“Loyalty Program”). Business is solely responsible for the lawful operation of such Loyalty Programs, and agrees to honor any rewards or benefits offered to Customers in connection with such Loyalty Program.
- Promotions. If Business or its designee uses the Service to advertise or run a promotion (including a contest or sweepstakes) (the “Promotion”), Business is fully responsible for the lawful operation of the Promotion, including the official rules, offer terms and eligibility requirements, and compliance with applicable rules and regulations governing the Promotion and prizes offered (including registration and bonding, and obtaining any necessary approvals). Promotions must include a complete release of Owner, its affiliates, employees, contractors and agents by the participants and an acknowledgement that the Promotion is not sponsored by or associated with Owner. Owner will not provide any support for Business’s Promotions, and Business agrees that use of the Service in connection with any Promotion is at Business’s own risk.
Prohibited Service Uses
Third Party Software
The Platform may include or be accompanied by software owned or licensed by a third party (“Third Party Software”). Third Party Software may be subject to separate license terms, which may be provided or made available to Business by Owner.
The Service and the Owner Content, including all intellectual property rights therein, are the sole and exclusive property of Owner and its licensors, including other users of the Service, provided that Business retains ownership of any intellectual property rights it may have in any Business Content that Business uploads to the Service. Except for the limited license expressly granted by and to Business under this RPA, no other rights, licenses, or immunities are granted or will be deemed to be granted under this RPA, either expressly, or by implication, estoppel, or otherwise. All rights not expressly granted by a party hereunder are expressly reserved.
Owner appreciates hearing from Owner’s users and welcomes Business’ comments regarding the Service. Please be advised, however, that if Business sends Owner creative ideas, suggestions, inventions, or materials (“Creative Ideas”), Business agrees that Owner (A) will not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Idea and (B) may use such Creative Ideas without restriction for any purpose whatsoever, whether commercial or otherwise, without compensation to Business or any other person.
The RPA is effective until terminated by Business or Owner. Business’ rights under this RPA will terminate automatically without notice from Owner if Business fails to comply with any term(s) of this RPA (including by violating any license restriction provided herein). Business may terminate this RPA at any time by: (A) notifying Owner of Business’ intent to do so, (B) returning all loaned Tablets to Owner in accordance with Section 7.B, and (C) returning all loaned Printers to Owner in accordance with Section 8.B. Upon termination, Business must immediately cease all use of the Platform, and destroy all copies, full or partial, of the Platform and any Marketing Materials in Business’ possession or control, take down all Owner references, and return all loaned Tablets to Owner within 14 days of termination. Business’ payment obligations and Sections 4, 5, 7.B, 11, 13, 14, 15, 16, 17, 18, 19, and 20 will survive termination of this RPA for any reason. Owner may terminate this RPA upon notice to Business. Additionally, Owner may terminate this RPA on 10 days’ notice in the event of Business’ breach of this RPA if the breach is not remedied within such 10-day period or immediately in the event the breach is incapable of cure.
Except as otherwise specified herein, Owner may revise this RPA or the pricing offered to Business in any Order on a going forward basis at any time on notice to Business, to be effective 30 days following such notice. Business agrees that such notice may be delivered via email. Business may terminate this RPA if Business objects to any such revision by providing Owner notice within 30 days following such notice (such notice, an “Objection”), in which case, Business may continue to use the Service for up to 90 days following Owner’s notice of the revised RPA or pricing. Business’ continued use of the Service between Owner’s receipt of an Objection and the effective date of Business’ termination will be governed by the RPA in effect immediately prior to the date of the Objection.
Business agrees to indemnify and hold Owner, its officers, directors, employees, agents, service providers, and licensors (the “Released Parties”), harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (A) the Business Content or any other material or information provided by Business to Owner, including without limitation the names or other identifying information of Business’ employees, (B) Business’ access, use, or misuse of the Service or Owner Content, (C) Business’ violation of this RPA, (D) Business’ Loyalty Programs or Promotions, (E) claims for personal injury or death caused by Business’ products or services or (F) Business’ dealings with any Customer. Owner will use reasonable efforts to notify Business of any such claim, action, or proceeding upon becoming aware of it but if Owner is unable to communicate with Business in a timely manner because of an inactive e-mail address, Business’ indemnification obligation will continue notwithstanding Owner’s inability to contact Business in a timely manner.
BUSINESS EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE, TABLETS (EXCEPT AS SET FORTH IN SECTION 7(D)), AND OWNER CONTENT ARE AT BUSINESS’ SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH BUSINESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE TABLETS (EXCEPT AS SET FORTH IN SECTION 7.D) AND ALL OWNER CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OWNER HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OWNER DOES NOT WARRANT AGAINST INTERFERENCE WITH BUSINESS’ ENJOYMENT OF THE SERVICE, THE TABLETS, OR OWNER CONTENT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE, THE TABLETS, OR OWNER CONTENT WILL MEET BUSINESS’ REQUIREMENTS, THAT THE OPERATION OF THE SERVICE, THE TABLETS, OR OWNER CONTENT WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT ANY DEFECTS IN ANY OF THE FOREGOING WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OWNER OR ITS REPRESENTATIVES WILL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS RPA. SHOULD THE SERVICE, THE TABLETS, OR OWNER CONTENT PROVE DEFECTIVE, BUSINESS ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO BUSINESS, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO BUSINESS’ USE OR INABILITY TO USE THE SERVICE, THE TABLETS, OR ANY OWNER CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ANY OF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO BUSINESS. IN NO EVENT WILL THE RELEASED PARTIES’ TOTAL LIABILITY TO BUSINESS FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY), EXCEED THE AMOUNTS PAID BY RESTAURANT TO OWNER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO BUSINESS, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
Third Party Disputes
Owner is not responsible for any disputes or disagreements between Business and any third party, such as a Customer, that Business interacts with using the Service. Business assumes all risk associated with dealing with third parties. Business agrees to resolve disputes directly with the other party. Business hereby releases Owner of all claims, demands, and damages in disputes among users of the Service. Business also agrees not to involve Owner in such disputes.
- Dispute Resolution; Governing Law. This RPA and the relationship between Business and Owner will be governed by the laws of the state of California without regard to its conflict of laws provisions that would result in the application of the laws of another jurisdiction. Business and Owner agree to submit to the personal and exclusive arbitration of any disputes relating to Business’ use of the Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, will be conducted in Los Angeles County, California. Business also acknowledges that, with respect to any dispute with the Released Parties arising out of or relating to Business’ use of the Service or this RPA: (A) BUSINESS IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY; (B) BUSINESS IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND (C) BUSINESS MUST FILE ANY CLAIM WITHIN ONE YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED. Nothing in this Section will prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
- Assignment. Business may not assign this RPA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior written consent of Owner. This means that, if Business purchases a Tablet, in the event Business disposes of that Tablet, such as by sale or gift, Business is responsible for deleting the Platform from the Tablet prior to such disposition. Owner may assign this RPA, including all its rights hereunder, in whole or in part, without restriction. Any assignment made in violation of this RPA is void. This RPA will be binding upon, and inure to the benefit of, Owner, Business, and their respective successors, and permitted assignees.
- Jurisdictional Matters. The Service is controlled and operated by Owner from its offices within the state of California. Owner makes no representation that materials on the Service are appropriate or available for use in other locations. If Business chooses to access or use the Service from other locations, including from outside the United States of America, Business does so on its own initiative and is responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
- Contacting Owner. Business can contact Owner by email at [email protected] or at 530 Lytton Avenue, 2nd Floor, Palo Alto, CA 94301, as may be updated from time to time by Owner.