Menufy Clover TOS
Effective Date: June 6, 2019
These Menufy.com LLC Restaurant Terms (“Terms”) apply to the service relationship between Menufy.com LLC (“Menufy”) and the restaurant (“Restaurant”) signing up for the Services (as defined herein). These Terms, and any other terms set forth in the sign-up process will be together referred to as the “Agreement.” The Agreement is entered into as of the date Restaurant signs up for the Services (“Effective Date”). By establishing, activating, using, or paying for the Services, Restaurant acknowledge 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. This Agreement governs the Services and any website, application or software used in conjunction with the Services.
THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS RESTAURANT’S LEGAL RIGHTS. PLEASE READ IT.
1. Rights and Obligations of Menufy
a) Menufy will enable customers to purchase food and beverages from Restaurant via (i) Menufy’s proprietary ordering, advertising, delivery logistics and billing system at menufy.com and at Menufy’s sole option, its associated web-based and mobile properties and apps (the “Menufy Platform”); and (ii) at Menufy’s sole option, at any properties partnered with Menufy (together with Menufy Platform, the “Systems.”) The foregoing will not apply to any Restaurant that has not signed up for Marketing Services until such Restaurant elects to receive such Marketing Services.
b) MARKETING SERVICES (IF SELECTED): Menufy will include Restaurant on the Systems as provided herein, and will enable the transmission of orders to Restaurant for pickup or delivery (the “Marketing Services”). The Marketing Services, together with the Delivery Services and the POS Services (each as defined below), will be referred to herein as the “Services.”
c) DELIVERY SERVICES (IF SELECTED): Menufy will connect Restaurant with delivery service providers through Menufy’s proprietary logistics platform(s) (the “Delivery Services”). Menufy will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability. For clarity, Menufy does not itself provide delivery or logistics services; instead, Menufy provides a platform for restaurants to connect with delivery service providers to transport orders to customers and to receive information relating thereto. Menufy delivery service providers are independent contractors who access Menufy’s proprietary technologies to provide on-demand delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, Menufy will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
d) Menufy owns all right, title, and interest in and to the Menufy Platform and any content supplied by Menufy, and will have sole editorial control over the Menufy Platform, including the presentation of any content provided by Restaurant (“Restaurant Content”). Restaurant Content may include, without limitation, menus, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Restaurant hereby grants to Menufy a royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Restaurant Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Restaurant owns all right, title, and interest in and to the Restaurant Content, subject to the license granted to Menufy herein. Menufy may remove Restaurant Content on the Systems at any time if it believes, in its sole discretion, that such Restaurant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.
e) 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 SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MENUFY WILL NOT BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR RESTAURANT CONTENT. MENUFY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RESTAURANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES 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, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. MENUFY’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF 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.
2. Rights and Obligations of Restaurant
a) Restaurant will prepare food and beverage orders placed via the Systems (i) consistent with menu descriptions; (ii) in compliance with all applicable health and safety requirements; (iii) in accordance with industry standards; and (iv) during the hours of operation provided by Restaurant to Menufy. Restaurant will ensure that its menu(s), hours of operation, and other particulars required for Menufy to perform the Services are up to date. Restaurant will ensure that its menu descriptions are sufficiently detailed as to ingredients and allergens, and contain any other health or safety notices that are recommended or required by applicable law, rule or regulation.
b) Restaurant consents to receiving phone calls, faxes, emails, text messages and any other communications made available by and on behalf of Menufy as they may relate to the Systems, Services and terms governing Restaurant’s use of the Systems and Services, including without limitation, marketing or transactional matters
c) Restaurant will not, and will not permit any third party to, market to or solicit any customer or company obtained through the Systems or via the Services for any purpose. For example, but without limitation, Restaurant may not solicit a customer or order directly from Restaurant or through a third-party. For the avoidance of doubt, the foregoing does not apply to any customer or company whose existence and information Restaurant obtained independently of the Systems and Services.
d) Restaurant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Restaurant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, Menufy’s Confidential Information. Restaurant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by Menufy, Restaurant will deliver to Menufy (or destroy at Menufy’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
e) “Customer Data” means (i) any and all information about customers generated or collected by Menufy or Restaurant through the Systems or Services, which may include but is not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Restaurant acknowledges that all Customer Data is the sole and exclusive property of Menufy. Accordingly, Restaurant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Restaurant’s obligations hereunder. Restaurant (and any other persons to whom Restaurant provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current industry best practices in order to protect, handle, and secure Customer Data. Restaurant will also be responsible for any breach of this provision by any third-party service provider engaged by Restaurant. Restaurant will notify Menufy in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with Menufy concerning any remedial measures and any disclosures to affected parties, in each case as requested by Menufy or required under applicable law.
g) If Restaurant is a franchisee of a franchisor (“Franchisor”) that has negotiated a master agreement with Menufy (“Master Agreement”), Restaurant consents to the sharing of certain sales reporting data with Franchisor pursuant to the Master Agreement.
h) Restaurant represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Restaurant Content, 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 comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to Menufy; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Restaurant includes alcohol in its menu on the Systems, Restaurant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Restaurant will provide Menufy with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify Menufy if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time during the Term.
i) Restaurant will indemnify and hold Menufy (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Restaurant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Restaurant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. Menufy will provide prompt notice to Restaurant of any potential claim subject to indemnification hereunder. 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. Menufy will reasonably cooperate with Restaurant in the defense of the claim, at Restaurant’s expense.
j) Restaurant is responsible for maintaining its email account with Menufy, including confidentiality of its password and account information, all identification and security codes that control access to the Systems and Services, and all content and communications from said account.
k) Restaurant agrees it will comply with all applicable laws while using the Systems and/or Services, will not violate the rights of any third-party, and will not damage, interfere, or disrupt Menufy’s Systems 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.
l) Restaurant agrees to notify Menufy immediately if it becomes aware at any time that its account is stolen, fraudulently used, or has been compromised. Restaurant agrees to provide notice in a commercially reasonable time, and to work with Menufy in good faith to resolve the issue.
m) Restaurant agrees to, and herby consents to, allowing Menufy to audit its use of the Services and Systems to enforce the provisions of the Agreement.
3. Payment Terms
a) In consideration for Restaurant’s access to the applicable Systems and Services, Restaurant will pay to Menufy the Marketing Commission and Delivery Commission (as applicable) provided in the sign up process (collectively, the “Commissions”). Except as otherwise specified, the Commissions apply to the product total on all orders placed through the Systems. The Delivery Commission does not apply to pickup orders or self-delivery orders. In the event Restaurant does not use or ceases to use Delivery Services, the Marketing Commission will apply to the product total and any delivery fee charged by Restaurant. For Restaurants that do not use Delivery Services, the Marketing Commission will be charged on orders originating from the Systems. The Commissions may be amended by Menufy upon three (3) days’ prior written notice to Restaurant (email sufficient), provided that Restaurant does not cancel the Agreement during such notice period.
b) Restaurant will provide to Menufy accurate and complete sales tax rates and computations (including, without limitation, any applicable state and local taxes) applicable to menu items and will provide reasonable advance notice to Menufy of any required changes to such rates and/or computations. Restaurant will report and remit all sales tax collected through the Systems to the applicable taxing authorities.
c) Prices and charges relating to the Systems and Services are posted on the Clover App Market website. Menufy may change the prices and charges from time to time. Price changes will take effect for new Restaurants immediately. Restaurants using existing accounts will continue with the price they originally agreed upon. If an existing user opts to change its pricing tier, the price in-effect at the time will be charged.
a) The Agreement may be cancelled by either party for any reason (or no reason) upon notice to the other party; provided, however, that Menufy may suspend the Services or access to the Systems during any time it believes Restaurant is in violation of the Agreement.
b) If either party wishes to cancel placement on any particular platform(s) and/or the Delivery Services, in each case, while remaining on the other platform(s) and/or retaining the other Services, it may do so at any time upon notice to the other party. Notwithstanding anything to the contrary herein, in the event that only placement on the such platform and/or the Delivery Services are cancelled, the Agreement will continue in full force and effect, except that: (A) “Services” will be redefined to refer only to the remaining Service(s), (B) “Commission” will be redefined to refer only to the Commission(s) applicable to the remaining Services, and (C) any obligations of Menufy with respect to the cancelled Service(s) will be of no further force and effect.
5. Dispute Resolution.
Restaurant and Menufy agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. 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 agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
6. Miscellaneous Terms.
Menufy and Restaurant are independent contractors, and nothing herein may be construed to create any agency, partnership or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement are not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. With the exception of the Arbitration Agreement, which will be governed by the FAA, the Agreement will be governed by Kansas law, without regard to conflict of law principles. The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and any other contract or agreement, the terms of the Agreement will control.
Menufy hereby reserves the right to update and modify these Terms at any time at its sole discretion, provided that such modifications will be applied only prospectively. Restaurant agrees that Menufy has the right to notify it of updates to these Terms by posting them on the Systems. Therefore, Restaurant should review these Terms before using the Services. The Agreement may not be amended by Restaurant unless such amendment is signed by an authorized representative of Menufy.
If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
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, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Restaurant may not assign the Agreement without the prior written consent of Menufy, and if permission is secured, the assignor will provide Menufy with advance written notice so that payment can be directed appropriately. Any assignment by Restaurant in violation of this provision will be deemed a nullity. Menufy may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement.
This Section 6, the customer data, ownership, confidentiality, indemnity, limitation of liability and arbitration 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.
All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Restaurant will be sent to Restaurant at the email address provided by the authorized representative during the signup process or such other address provided by Restaurant and accepted by Menufy in writing. All notices to Menufy will be sent to the below, unless otherwise provided by Menufy:
6800 College Blvd., Suite 501
Overland Park, Kansas 66211