Restaurant Services Agreement and TOS
1. Definitions
1.2 “Company Website” means the website of Menu Mob located at URL: www.menumob.com
1.3 “Customer” means any party that purchases Food and Beverage, places a reservation, downloads a coupon, responds to an employment posting, participates in a reward program, receives email campaigns, and receives text message advertising from Restaurant through the Company Website.
1.4 “Menu” means the Restaurant’s menu(s) on the Company Website listing the Restaurant’s Food and Beverage offerings, excluding alcoholic beverages.
1.5 “Food and Beverage” means any and all items listed on the Restaurant’s Menu.
1.6 “Company HTML Link” means the HTML link to the Company Website to be provided by Menu Mob as described in Section 4.1.
1.7 “Gross Sales” means the amounts actually received by Menu Mob for Food and Beverage, including taxes, tip, delivery fees, if applicable, and charitable contributions that are pledged through the Company Website from Customers.
1.8 “Net Sales” means the amounts actually received by Menu Mob on behalf of Restaurant for Food and Beverage, including delivery fees, if any, but excluding taxes, tip and charitable contributions that are pledged through the Company Website from Customers.
1.9 “Restaurant Trademarks” means the names and logos provided to Menu Mob by Restaurant.
1.10 “Restaurant URL” means a URL designated by Menu Mob (for instance, at URL www.menumob.com/Restaurant) at which the Restaurant Webpage will be located.
1.11 “Restaurant Webpage” means the web page(s) hosted by Menu Mob which contain the Restaurant Menu.
1.12 “Restaurant Website” means the website of Restaurant, if any, at the URL specified in the Signature Page that will contain the Company HTML Link.
2. ELECTRONIC SIGNATURES EFFECTIVE
2.1. By clicking on the “I Accept” or similar button, Restaurant creates an electronic signature to the Agreement, establishing a contract. In doing so, Restaurant agrees to accept these terms and conditions and any other agreement contained or referenced herein; Restaurant also agrees that Menu Mob may supply a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records.
3. Fees and Payment
3.1 Fees and Payment. Restaurant shall pay Menu Mob the non-refundable set-up fee upon execution of this Agreement. Menu Mob will collect all Customer payments including Food and Beverage costs, taxes, tip and charitable contributions. Once per week, Menu Mob will remit to Restaurant the Net Sales, tips and taxes collected by Menu Mob for Food and Beverage on Customer orders during the previous week, less the service fee and processing fee indicated on the Signature Page and less any bad debts or other write-offs. Menu Mob will pay Restaurant in accordance with the method of payment selected by Restaurant on the Signature Page. Menu Mob will provide Restaurant with daily reports that itemize the Customer orders processed through the Company Website and the payments related thereto.
3.2 Taxes. Restaurant shall inform Menu Mob of those tax jurisdictions for which sales tax or other transaction taxes are to be charged to Customers and the amounts to be charged to Customers in accordance with all applicable federal, state and local laws. Restaurant must pay all federal, state and local taxes on the Food and Beverage, tips and delivery (if any) and Restaurant shall timely remit to the appropriate federal, state and local tax jurisdictions all taxes due and payable, including sales and use taxes collected from Customers in accordance with applicable federal, state and locals laws.
4. Restaurant’s Obligations
4.1 Website. Subject to any approval by Menu Mob required under Section 5, Restaurant is solely responsible for the development, operation and maintenance of the Restaurant Website. Restaurant shall display the Company HTML Link on the Restaurant Website in a mutually agreeable location. Restaurant agrees to indemnify and hold Menu Mob harmless from all damages, claims, fees (including attorneys’ fees) and expenses relating to the development, operation or maintenance of the Restaurant Website.
4.2 Internet Orders for Food and Beverage. The parties acknowledge and agree that Menu Mob will not be the exclusive representative of Restaurant for online Food and Beverage orders.
4.3 Menu. Restaurant shall provide Menu Mob with all restaurant menus to be posted on the Restaurant Webpage. Restaurant shall ensure that the Restaurant Menu is up to date at all times, including without limitation Food and Beverage descriptions and prices. Restaurant agrees that the prices for Food and Beverage on the Restaurant Webpage will not be marked-up and will be identical to the prices on the Restaurant's menu at its location. Restaurant is responsible for making such updates using Menu Mob’s online tools. Menu Mob may in its sole discretion provide services to perform such updates on Restaurant’s behalf; provided, however, any such services will be subject to Menu Mob’s then-current fees for such services.
4.4 Order Fulfillment. Restaurant shall fulfill all orders received on its behalf through the Company Website accurately and timely and shall promptly notify Menu Mob of any known errors in orders received or fulfilled by Restaurant.
4.5 Delivery. Restaurant is solely responsible for all Food and Beverage delivery, if any.
4.6 Marketing Material. Menu Mob may, at its own expense, provide Restaurant with marketing materials (“Marketing Materials”), including take out bags, POP Displays and take-away brochures for use by Restaurant to promote the services set forth in this Agreement. Restaurant shall preserve the quality of the Marketing Materials and will use and display the Marketing Materials in prominent locations in a mutually agreeable manner at all times and only for the purposes set forth in this Agreement. In the event of any unauthorized use, damage, destruction or loss of the Marketing Materials, Restaurant shall promptly reimburse Menu Mob for the cost and delivery of such materials and Menu Mob shall be entitled to offset amounts owed to Restaurant for such amounts, in Menu Mob’s sole discretion.
5. Trademark Licenses
5.1 License to Menu Mob. Restaurant grants Menu Mob a nonexclusive license to display the Menu and Restaurant Trademarks in connection with Menu Mob’s sale of the Food and Beverage on behalf of Restaurant on the Company Website and any and all Menu Mob marketing materials in Menu Mob’s sole and absolute discretion (“Menu Mob Licensed Use”). Menu Mob shall not use the Restaurant Trademarks in connection with any activities other than Menu Mob Licensed Use without the prior written consent of Restaurant.
5.2 License to Restaurant. Menu Mob grants Restaurant a nonexclusive license to (i) display the Company HTML Link, including the hypertext link, associated graphic icon or logo, and associated URL provided by Menu Mob under this Agreement on the Restaurant Website and (ii) use the Marketing Materials pursuant to Section 4.6, solely in connection with the advertising, marketing, sale and distribution of the Food and Beverage (“Restaurant Licensed Use”). Restaurant shall not use the Company HTML Link or the Marketing Materials in connection with any activities other than the Restaurant Licensed Use without the prior written consent of Menu Mob.
6. BILLING AND PAYMENT METHOD
When Restaurant supplies Menu Mob with a method of payment such as a credit card, charge card, or bank account (“Payment Method”) in connection with a Program, you participate in the “Payment Method Program” and you authorize Menu Mob to bill your Payment Method pursuant to these Payment Method Program Terms for any and all charges and fees Restaurant incurs in connection with that Program, including recurring payments. The types of Payment Methods that Menu Mob accepts and the timing of the billing of the charges and fees may vary according to the Program; however, Menu Mob does not knowingly accept debit cards and Restaurant should not provide a debit card as a form of payment. The terms of your Payment Method are determined by an agreement(s) between Restaurant and Restaurants financial institution.
7. AUTHORIZATION
Restaurant agrees to keep Payment Method information on file with Menu Mob current (such as address, card or account number, and expiration date, if any), and also authorize Menu Mob to update Restaurant Payment Method information with data Menu Mob obtains from Restaurants financial institution, the issuer of Restaurants credit card or charge card, or from MasterCard or Visa. Restaurant authorizes Menu Mob to retain Restaurants Payment Method information until such time as Restaurant revokes this authorization in accordance with procedures prescribed by Menu Mob. Any revocation by Restaurant of this authorization will become effective: (a) if Restaurant Payment Method is a credit or charge card, when all charges and fees associated with Restaurants use of the Programs have been fully satisfied, as determined by Menu Mob; or (b) if Restaurant Payment Method is a bank account, after three (3) business days. Restaurants revocation of this authorization will have no effect on Restaurants liability for charges and fees that Restaurant has incurred in connection with Restaurants use of a Program prior to such revocation.
8.
TYPES OF PAYMENT PLANS
“Continuous Traffic Payment Plan”: Under the Continuous Traffic
Payment Plan, Restaurant preauthorizes Menu Mob to periodically
bill Restaurants Payment Method on a recurring basis for the amount
Restaurant specifies. Restaurants Payment Method will automatically
be billed with the preauthorized amount whenever Restaurants account
has fewer than approximately the prior three (3) days’ worth of
charges remaining, as determined by Menu Mob. The preauthorized
amount then will be credited to Restaurants account and, after any
debit balance that Restaurant may have incurred for charges in excess
of the amount Restaurant has preauthorized is first deducted, the
balance will be available to pay for future charges and fees; thus,
while the amount charged to Restaurants Payment Method will remain
the same throughout the term of Restaurants participation in the
Continuous Traffic Payment Plan, the amount actually available in
Restaurants account to pay for future charges and fees will vary
depending upon the charges and fees Restaurants have incurred. “Fixed
Budget Payment Plan”: Under the Fixed Budget Payment Plan, Restaurant
determines a monthly amount for charges to Restaurants Program account(s)
and Restaurant preauthorizes Menu Mob to bill Restaurants Payment
Method each month in the amount specified. Notwithstanding the monthly
amount Restaurant specifies, if Restaurant exceeds Restaurants available
balance in any month, Restaurant will incur a debit balance; this
debit balance will be deducted from the amount next billed to Restaurants
Payment Method and the remaining balance will be credited to Restaurants
account to pay for future charges.
9. ACCESS
Restaurant will not: (i) use any automated means, including agents,
robots, scripts, or spiders to access, monitor, scrape, or manage
your account(s) with Menu Mob, or to access, monitor, scrape or
copy Company Website, Menu Mob systems or any data therein, except
those automated means expressly made available by Menu Mob or authorized
by Menu Mob in advance in writing (e.g., third-party tools approved
by Menu Mob), (ii) bypass any robot exclusion headers on the Company
Websites (including using any device, software, or routine to accomplish
that goal), (iii) interfere or attempt to interfere with the proper
working of the Company Websites, Programs, or Menu Mob systems,
(iv) use or combine our Programs with software offered under an
open source license which create any obligations with respect to
our Programs contrary to the Agreement, or grant to any third party
any rights to, or immunities under, our intellectual property or
proprietary rights in our Programs, or (v) make available to Menu
Mob or our Affiliates any PII of visitors, users, or customers of
Restaurant website(s) in connection with Restaurant access or use
of our Program(s). Menu Mob Programs, including Restaurant password(s)
related to Restaurant account(s), may not be used by, or made available
to, any third party, except Authorized Users. Restaurant will promptly
notify Menu Mob in writing if Restaurant becomes aware of a potential
breach of security relating to Restaurant account(s) with Menu Mob
(e.g., the unauthorized disclosure or use of Restaurant username
or password). Authorized Users must comply with the Agreement and
Restaurant is liable for their acts and omissions in connection
with the Agreement, and any charges, costs, fees, or expenses they
may accrue. Restaurant may use data made availablebin connection
with a Program, including data that is obtained, collected, or derived
as a result of any targeting parameters provided by Menu Mob, solely
for internal use to manage Restaurants advertising account(s) with
Menu Mob and Restaurant will not publish such data, create profiles
of Menu Mob users, or use such data for retargeting. Menu Mob reserves
the right to modify or discontinue offering any Program or part
thereof. Restaurant Information, Promotions (if applicable), and
ads must comply with Menu Mob policies and specifications, which
Menu Mob may change from time to time. Menu Mob may provide free
clicks, free impressions, ads, credits, and/or discounts, including
in connection with contests, incentives, promotions, or donations.
10. Legal Compliance
Restaurant represents and warrants that Restaurant complies with
all federal, state and local laws, statutes and regulations relating
to the operation of its business.
11. Non-Solicitation
Restaurant acknowledges that the Company Website users are valuable
business assets of Menu Mob and Restaurant agrees that it shall
not (for itself or for any third party), directly or indirectly,
divert or attempt to divert any Company Website users from Menu
Mob, through solicitation or otherwise.
12. Confidential Information
“Confidential Information” shall include any information, whether
oral, written or observed, regarding the terms of this Agreement
or the services described herein. Restaurant shall hold Confidential
Information in trust and confidence for Menu Mob and shall not disclose
or use Confidential Information for any purpose other than to perform
the obligations pursuant to this Agreement. In clarification of
the foregoing, all Company Website user information will be Menu
Mob Confidential Information and Menu Mob is under no obligation
to provide such user information to Restaurant.
13. Term and Termination
13.1 Term. The term of this Agreement will commence on the date
that the Restaurant Webpage is accessible by the public and will
continue for a period of one (1) year from the Effective Date (the
“Initial Term”), unless earlier terminated in accordance with Section
5.2. Upon expiration of the Initial Term, the term of this Agreement
will automatically be renewed for successive one (1) year terms
(the Initial Term as it may be so extended, the “Term”), unless
either party provides written notice to the other party of its intention
not to extend the Term at least ninety (60) days prior to expiration
of the Term.
13.2 Termination. Either party may terminate this Agreement at any
time upon written notice to the other party if the other party materially
breaches any of its obligations under this Agreement and such breach
is not cured after ten (10) days prior written notice. For purposes
of this Agreement, any repeated breach by Restaurant of Sections
4.4 or 4.6 of this Agreement shall constitute a material breach.
In the event Restaurant terminates this Agreement for any reason
other than for material breach by Menu Mob, Restaurant shall promptly
pay Menu Mob $500 as an early termination fee and Menu Mob shall
be entitled to offset amounts owed to Restaurant for such amount,
in Menu Mob’s sole discretion. The remedies provided in this Agreement
shall not preclude any party from asserting any other right, or
seeking any other remedies, against the other party.
13.3 Effect of Termination and Survival. Within twenty-four (24)
hours after termination (whether by Restaurant or Menu Mob), Menu
Mob shall remove the Restaurant Webpage from the Company Website.
Within thirty (30) days after termination (whether by Restaurant
or Menu Mob), Restaurant shall return all Marketing Material in
its possession to Menu Mob. Following the receipt of all Marketing
Material from Restaurant, Menu Mob will pay Restaurant any amounts
owed to Restaurant prior to the date of termination. The provisions
of Sections 1, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18
survive termination or expiration of the Agreement. Notwithstanding
anything in this Agreement to the contrary, upon termination of
this Agreement Menu Mob shall be permitted to continue to use the
Restaurant Trademarks in any and all Menu Mob marketing materials
that were developed, printed or published prior to the date of termination.
14. Disclaimers
MENU MOB HEREBY EXPRESSLY DISCLAIMS (A) ANY AND ALL WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, AND (B) ANY AND ALL WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
IN CLARIFICATION OF THE FOREGOING, THE WARRANTIES, IF ANY, WITH
RESPECT TO THE FOOD AND BEVERAGE WILL RUN DIRECTLY FROM RESTAURANT
TO CUSTOMERS.
15. Limitation of Liability
MENU MOB WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES
OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF RESTAURANT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MENU
MOB’S MAXIMUM LIABILITY ARISING UNDER THIS AGREEMENT WILL NOT EXCEED
THE AMOUNT OF THE TOTAL NET SALES DUE AND PAYABLE TO RESTAURANT
UNDER THIS AGREEMENT AT THE TIME MENU MOB IS NOTIFIED OF SUCH BREACH.
16. Indemnification
Restaurant, at its expense will indemnify, defend and hold harmless
Menu Mob and any of its affiliates and any of their officers, directors,
employees, agents, consultants, other representatives (collectively,
“Indemnitees”) from all liabilities, costs, losses, damages and
expenses (including reasonable attorneys’ fees) in connection with
(a) any claim or action threatened or brought against the Indemnitees
arising out of or related to the services set forth in this Agreement,
including without limitation, personal injury or property damage,
and (b) any sales tax, use tax or other transaction tax relating
to the sale of Food and Beverage to Customers.
17. Relationship of Parties
Restaurant acknowledges that it is the retail vendor of all Food
and Beverage sold to Customers and that Menu Mob bears no responsibility
in regard to such Food and Beverage for its content, preparation,
or transfer/delivery to Customers. Moreover, Menu Mob bears no responsibility
for the description of Food and Beverage items appearing on the
Restaurant Webpage. Menu Mob’s obligations and responsibilities
to Restaurant are limited solely to the undertakings set forth in
this Agreement as a provider of advertising and order processing
services. Nothing in this Agreement creates any partnership, joint
venture, franchise or employment relationship between Restaurant
and Menu Mob.
18. Miscellaneous Provisions
This Agreement will be governed and construed in accordance with
the laws of the State of California and the United States of America,
without regard to conflict of law principles. All disputes arising
out of or related to this Agreement shall be subject to the exclusive
jurisdiction and venue of the California state courts of Orange
County (or, if there is federal jurisdiction, a United States Central
District Court of California), and the parties consent to the personal
and exclusive jurisdiction of these courts. This is the entire Agreement
between Restaurant and Menu Mob with respect to the subject matter
hereof. Restaurant may not assign this Agreement, by operation or
law or otherwise, without Menu Mob’s prior written consent; provided,
however, this Agreement is freely assignable by Menu Mob. Subject
to the foregoing, this Agreement will be binding on, inure to the
benefit of and be enforceable against the parties and their respective
successors and assigns. Menu Mob’s failure to enforce Restaurant’s
strict performance of any provision of this Agreement will not constitute
a waiver of Menu Mob’s right to subsequently enforce that provision,
or any other provisions of this Agreement. No waiver of any provision
hereof will be effective unless in writing and signed by the party
against whom such waiver is sought to be enforced. In the event
of a conflict between these Standard Terms and Conditions and the
Services Agreement executed by Restaurant, these Standard Terms
and Conditions shall govern. The headings and captions used in this
Agreement are for convenience only and shall not in any way affect
the interpretation of the provisions of this Agreement. This Agreement
may be executed in counterparts, each of which will be deemed an
original and all of which together shall constitute one instrument.
