Menufy: Clover Terms of Service
effective September 5, 2019
Welcome to Menufy! To use our services, you must agree to these Terms of Service (“Terms”). These terms are important and contain legal disclosures that affect the relationship between Menufy.com LLC (“Menufy”) and the restaurant (“Restaurant”) signing up for Menufy’s Platform and Services (as defined in these Terms). The Terms are a contract (the “Agreement”) between Menufy and Restaurant under which Restaurant may access and use Menufy’s Platform and Services and related website, application, or software. The Agreement is entered as of the date Restaurant signs up for Menufy’s Platform and Services (“Effective Date”). By establishing, activating, using, or paying for access to Menufy’s Platform and Services, Restaurant acknowledges that it has read and understood these terms, it agrees to the terms and conditions in this Agreement, and it represents it has the legal capacity to enter this Agreement and become bound by its terms, and to the prices, charges, and conditions provided to it.
PLEASE BE AWARE THE SECTION BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN PROVISIONS GOVERNING HOW CLAIMS THAT YOU MAY HAVE AGAINST MENUFY ARE RESOLVED. IT CONTAINS AN ARBITRATION PROVISION AND A WAIVER PERMITTING YOU TO ONLY PURSUE CLAIMS AND SEEK RELIEF AGAINST MENUFY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THEM.
1. Description of Menufy’s Services and Platform
Menufy allows customers to order meals and beverages from Restaurant through Menufy’s unique meal-ordering and billing website at menufy.com, and its web-based mobile application (“Menufy’s Platform”). Menufy offers Restaurant Ordering Services and Delivery Services (each defined below), collectively referred to as “Services.” Restaurant may select either or both Services at its discretion.
1.1. Ordering. Menufy places Restaurant on Menufy’s Platform, allowing customers access to Restaurant and place orders through Menufy, and communicates the orders to Restaurant for customer pickup or delivery by Restaurant’s in-house delivery services (the “Ordering Services”).
1.2. Delivery. Menufy connects Restaurant with delivery service providers through Menufy’s Platform (the “Delivery Services”) to deliver orders to customers. The delivery service providers are independent contractors who are not employed by Menufy. Each delivery service provider controls the means and method in which its workers deliver orders. Menufy is not liable or responsible for the actions of the delivery service providers.
1.3. Menufy’s Platform. Menufy’s Platform and all content contained therein is owned or licensed by Menufy. Menufy retains sole control over Menufy’s Platform, including the use of any materials (menus, photographs, logos, etc.) or information provided by Restaurant (“Restaurant Data”). Restaurant grants Menufy an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use the Restaurant Data on Menufy’s Platform, and in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant for the duration of the Agreement. Menufy may list Restaurant as a client of Menufy and a user of Menufy’s Platform without having to obtain Restaurant’s consent. Restaurant owns all rights and interests in and to the Restaurant Data, subject to the license granted to Menufy under the Agreement. Menufy may remove Restaurant Data from Menufy’s Platform at any time if it believes, in its sole discretion, that such Restaurant Data: (i) may harm Menufy or Menufy’s Platform; (ii) it violates any applicable laws; (iii) or infringes upon any third-party rights.
2. Restaurant’s Duties and Obligations
2.1. Obligations. Restaurant represents, warrants, and covenants that it will timely and properly prepare all orders placed via Menufy’s Platform consistent with menu descriptions. Restaurant further represents, warrants, and covenants it will comply with all applicable health and safety codes, and will prepare all orders received during its hours of operation. Restaurant represents, warrants, and covenants that it will provide up-to-date, accurate, and current menu(s), hours of operation, address(es), pricing, and promotions, required for Menufy to perform the Services.
2.2. Consent to Communications. Restaurant consents to receiving communications from Menufy, including phone calls, faxes, emails, SMS and MMS text messages, messages through electronic apps or platforms, and any other communications made by and on behalf of Menufy that may relate to Menufy’s Platform, Menufy’s Services, the Agreement, or Terms.
2.3. Confidentiality of Data. Restaurant agrees to maintain the confidentiality of all non-public Customer Data it acquires through Menufy’s Platform and Menufy’s Services. “Customer Data” means customer information collected by Menufy or Restaurant through Menufy’s Platform or Services, including customer’s personal information (names, addresses, email addresses, phone numbers, payment information, credit cards, and customer orders). Restaurant will use Customer Data only to meet its obligations under the Agreement, and not for any other purpose. Restaurant will use best practices to protect and secure Customer Data. Restaurant will notify Menufy immediately upon security breach of Customer Data or any reasonable suspicion thereof. Restaurant will assist Menufy concerning any remedial measures and notification to affected parties. Upon termination of the Agreement, Restaurant agrees to maintain the confidentiality of Customer Data and the terms of the Agreement.
2.5. Confidentiality of Agreement. Restaurant agrees not to disclose the terms of the Agreement to any third-party, including upon termination of the Agreement by either party.
3. Restaurant’s Representations and Warranties
3.1. Warranties. Restaurant represents, warrants and covenants: (i) it has the full right, power, and authority to enter into this Agreement, to meet its obligations hereunder, and to grant the licenses granted hereunder; (ii) it will comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, privacy, promotions, intellectual property, food preparation, health and safety codes, labor laws, and unfair business practices; (iii) the Restaurant Data, including all images, photographs, logos, designs, and materials provided to Menufy, does not and will not infringe or otherwise violate the rights of any third party; (iv) it will provide accurate tax rates and calculations to Menufy; and (v) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms.
3.2. Alcohol. If Restaurant includes alcohol in its menu on Menufy’s Platform, Restaurant represents and warrants that it understands the applicable alcohol control laws in its jurisdiction, and when a customer places an order that includes alcohol, Restaurant shall abide by such laws, including, without limitation, checking customer’s ID at the time of delivery to confirm that customer is permitted to purchase and receive the alcohol, and that it maintains a valid and active applicable licenses and permits for the sale and distribution of alcohol.
Restaurant agrees to defend, indemnify, and hold Menufy and its officers, directors, employees, successors, licensees, and agents harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from Restaurant’s breach of this Agreement or Restaurant’s misuse of Menufy’s Platform or Services. Menufy shall provide notice to Restaurant of any such claim, suit, or proceeding and shall assist Restaurant, at Restaurant’s expense, in defending any such claim, suit, or proceeding. Restaurant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Menufy, provided that Menufy may use counsel of its choice at its own expense. Restaurant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of Menufy, which will not be unreasonably withheld.
5. Restaurant’s Menufy Account
Restaurant is solely responsible for confidentiality and use of its email account with Menufy, including confidentiality of its password and account information, all identification and security codes that control access to Menufy’s Platform and Services, and all content and communications from said account. Restaurant will promptly notify Menufy of any misuse of Restaurant’s account by an unauthorized user. Restaurant agrees to provide notice in a commercially reasonable time, and to work with Menufy in good faith to resolve the issue.
6. Compliance with Applicable Laws
Restaurant agrees it will comply with all applicable laws while using Menufy’s Platform or Services, will not violate the rights of any third-party, and will not damage, interfere with, or disrupt Menufy’s Platform or Services. Should Menufy determine, in its sole discretion, Restaurant has violated this provision, it may suspend or terminate Restaurant’s account without notice to Restaurant. Restaurant agrees and consents to allowing Menufy to audit its use of the Services and Menufy Platform to enforce the provisions of the Agreement.
7. Fees; Clover Market App; Taxes.
7.1. Fees. As consideration for Restaurant’s rights to use Menufy’s Platform and Menufy’s Services, Restaurant shall pay Menufy an agreed upon fee for each customer order placed using Menufy’s Ordering Services (“Ordering Fee”). For Delivery Services, if applicable, Restaurant shall pay the Ordering Fee plus a commission service fee based upon the total of the customer order, not including any customer discounts or coupons, sales tax, or delivery fee charged by Restaurant. (“Delivery Commission”). Menufy will charge the Ordering Fee on all orders placed through Menufy’s Platform. Menufy may, upon its sole discretion, amend the Ordering Fee or the Delivery Commission by providing Restaurant with written notice (3) days prior to the amendment taking effect.
7.2. Clover App Market. Menufy’s Ordering Fees, Delivery Commissions, prices, and other charges relating to Menufy’s Platform will post on the Clover App Market website. Menufy may change the Ordering Fees, Delivery Commissions, prices or charges from time to time. Changes will take effect immediately for new all Restaurants. Restaurants with existing accounts will continue with the price it originally agreed upon. If a Restaurant with an existing account opts to change its pricing tier, the price in-effect at the time will be charged.
7.3. Taxes. In connection with any order placed through Menufy’s Platform, Restaurant will provide Menufy accurate, current, and complete tax rates due and owing to any governmental authority, such as sales tax, VAT, and use taxes, applicable to all orders. Restaurant will report and pay all sales tax collected through Menufy’s Platform to the applicable taxing authorities.
8. Term and Termination
8.1. Effective Date and Termination. This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with Section 8. Menufy or Restaurant may terminate the Agreement for any reason, or no reason, upon written notice to the other party. Notwithstanding the foregoing, Menufy, however, may suspend the Services or Restaurant’s access to Menufy’s Platform during any time it believes Restaurant breaches the Agreement.
8.2. Duties Upon Termination. Upon termination of this Agreement, all Ordering Fees and Delivery Fees due to Menufy shall be paid within thirty (30) days from the date of termination. All rights and licenses granted under this Agreement will cease upon notice of termination. Restaurant agrees to return any Hardware to Menufy within thirty (30) days from the date of termination.
8.3. Survival. The following provisions will survive termination of this Agreement: Indemnification; Confidentiality of Data; Confidentiality of Agreement, Restaurant’s Warranties; Binding Arbitration; Class Action Waiver; Limitations of Liability, and Miscellaneous Provisions; and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement.
9. Binding Arbitration
If a dispute arises between Restaurant and Menufy relating to this Agreement, Menufy’s Platform, or the Services provided by Menufy, either party may elect to exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Overland Park, Kansas, unless otherwise agreed. A Kansas court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
10. Class Action and Jury Waiver
Restaurant agrees that any claim or dispute in any arbitration or proceeding shall be brought on an individual basis only, and not as a class action or collective action, and there is no right or authority for any dispute or claim to be brought in a purported representative capacity on behalf of the general public or any other persons. Regardless of anything herein, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator.
MENUFY CANNOT GUARANTEE THE MENUFY PLATFORM WILL BE AVAILABLE AT ALL TIMES. RESTAURANT AGREES AND UNDERSTANDS THE MENUFY PLATFORM, AND SERVICES PROVIDED BY MENUFY, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MENUFY WILL NOT BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE MENUFY PLATFORM, SERVICES, OR RESTAURANT CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, MENUFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE MENUFY PLATFORM, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION DISCLAIMS ANY AND ALL STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
12. Limitation of Liability
MENUFY WILL NOT BE LIABLE TO RESTAURANT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, REGARDLESS OF WHETHER MENUFY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. MENUFY’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF ORDERING FEES AND DELIVERY COMMISSIONS EARNED BY MENUFY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
13. Miscellaneous Provisions
13.1. Parties Are Independent Contractors. Menufy and Restaurant are independent contractors and are not joint employers of any individual. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. The Agreement is not intended to benefit any third party.
13.2. Governing Law. Except for the Arbitration Agreement, which is governed by the FAA, the Agreement will be governed by Kansas law, without regard to conflict of law principles.
13.3. Entire Agreement. This Agreement constitutes the entire Agreement between Menufy and Restaurant with respect to Menufy’s Platform and Menufy’s Services, and supersedes all previous or contemporaneous agreements, whether written or oral. In the event of any conflict between the Agreement and any other contract or agreement, the terms of the Agreement will control.
13.4. Right to Update Terms and Agreement. Restaurant agrees that Menufy has the right to update and modify these Terms at any time in its sole discretion by posting updated Terms on Menufy’s Platform. The Agreement may not be amended by Restaurant unless such amendment is signed by an authorized representative of Menufy.
13.5. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
13.6. Force Majeure. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control.
13.7. Assignment of Agreement. Restaurant may not assign the Agreement without the prior written consent of Menufy.
All notices under the Agreement will be in writing. All notices to Restaurant will be sent to Restaurant at the email address provided to Menufy. All notices to Menufy will be sent to the below, unless otherwise provided by Menufy:
6800 College Blvd, Suite 501
Leawood, KS 66211