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We can accept your menu as a PDF, Excel spreadsheet, or JPEG
We can accept your menu as a PDF, Excel spreadsheet, or JPEG
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Terms Of Service

Restaurant Agreement
This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“Restaurant”) and Eatzy LLC (“Eatzy”). This Agreement specifies the terms under which Restaurant may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting Restaurant’s assent to this Agreement, Restaurant agrees to be bound by the terms of this Agreement. If Restaurant does not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of binding it to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth in Section 12. The definitions for other defined terms are set forth elsewhere in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and Eatzy (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. SUBSCRIPTION TO THE PLATFORM; LICENSES; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
• 1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, Eatzy hereby grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Direct Platform and the Discover Platform. Restaurant shall be responsible to Eatzy for any and all acts or omissions of the Users. Eatzy reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability. References to the “Platform” in this Agreement shall refer to the Direct Platform and the Discover Platform, both of which may be amended by Eatzy from time to time.
• 1.2 License Grants to Restaurant Content and Restaurant Marks.

a. Subject to the terms of this Agreement, Restaurant hereby grants to Eatzy during the Term:
 (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content, in whole or in part, through the Platform and in connection with any services Eatzy performs for Restaurant pursuant to the Additional Terms (as defined below), but solely to the extent necessary for Eatzy to perform such services. Eatzy’s license to modify the Restaurant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to Restaurant pursuant to the Additional Terms. In the event Restaurant does not approve of any modifications made by Eatzy to the Restaurant Content, Restaurant may notify Eatzy and Eatzy will cooperate with Restaurant to format the Restaurant Content in a manner that is appropriate for the Platform and acceptable to Restaurant; and
 (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant; (2) in connection with Eatzy’s performance of any services pursuant to the Additional Terms; and (3) with the prior consent of Restaurant, in connection with the marketing, advertising, and promotion of Eatzy and the Platform; provided, however, that pursuant to Section 10, Eatzy may list Restaurant as a client of Eatzy and a user of the Platform without having to obtain Restaurant’s consent. All goodwill generated by Eatzy’s use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant.
b. Eatzy shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) (i) to any subcontractors performing services on Eatzy’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or Eatzy badges or widgets embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to Eatzy with respect to the use of the Restaurant Content and the Restaurant Marks.
• 1.3 Additional Products and Services. Restaurant may order Additional Products and Services at any time during the Term on notice to Eatzy, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms“), as the same may be amended by Eatzy from time to time.
• 1.4 Incorporated Terms. Restaurant’s use of Google Wallet, Android Pay, Google Maps, Apple Pay, and, if Restaurant is located in qualified regions of the United States, the On-Demand Delivery option (collectively, the “Third-Party Services”), is subject to the following additional terms and conditions, which are hereby incorporated by reference and binding upon Restaurant and which may be updated by the applicable third-party service provider from time to time without notice to Restaurant (the “Incorporated Terms”). In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, such Incorporated Terms shall govern with respect to Restaurant’s use of the Third-Party Services. Google and Apple are not parties to any Order and will not be responsible for any disputes between Restaurant and any Customer.

a. For Google Wallet and Android Pay:
http://www.google.com/privacypolicy.html
http://wallet.google.com/files/privacy.html
https://payments.google.com/termsOfService?type=BUYER&gl=US
b. For Google Maps: Certain functions of the Platform permit or require Restaurant to use Google Maps implementation. Google Maps implementation is provided solely as a convenience to Restaurant and not as an endorsement by Eatzy of the content on Google Maps. Eatzy is not responsible for the content of Google Maps and does not make any representations or warranties of any kind regarding the functionality, reliability or accuracy of Google Maps. A link to Google Maps additional terms is found at https://maps.google.com/help/terms_maps.html. In addition to such additional terms, by using Google Maps Restaurant is also bound by the Google privacy policy found at https://www.google.com/intl/ALL/policies/privacy/index.html.
c. For Apple Pay:
The current version of the iOS Developer Program License Agreement, available at Apple’s Member Center at https://developer.apple.com/app-store/review/, which Eatzy can provide Restaurant upon request.
d. For the Eatzy Integrated Delivery Option:
A list of each Eatzy Integrated Delivery service provider (each, an “Integrated Provider”), along with each of such Integrated Provider’s Incorporated Terms, are found here. If Restaurant has opted into Eatzy Integrated Delivery then the Incorporated Terms of each of the Integrated Providers that serve Restaurant’s region are applicable to Restaurant, and incorporated into this Agreement. Eatzy periodically adds new Integrated Providers to its network, and Eatzy reserves the right to update the list of Integrated Providers from time to time, with or without notice to Restaurant. Restaurant is responsible for checking the link to the Integrated Providers’ Incorporated Terms periodically for updates. Restaurant acknowledges and agrees that by opting in to the Eatzy Integrated Delivery option, all transactions through such Eatzy Integrated Delivery option shall be facilitated by Eatzy but shall ultimately be made directly between Restaurant and the Integrated Provider, and Eatzy shall not be a party to such transactions. Accordingly, Eatzy shall have no liability to any party in connection with any transactions between Restaurant and Integrated Provider.
e. For Ordering via Facebook, Instagram, and Yelp:
Eatzy permits diners to place orders through Facebook, Instagram, and Yelp (“Social Media Ordering”). Restaurant’s participation in Social Media Ordering shall at all times be subject to the applicable terms of service of each social media platform (the “Social Media Terms”). A link to the Facebook Social Media Terms is found here: https://www.facebook.com/legal/terms; a link to the Instagram Social Media Terms is found here: https://help.instagram.com/; a link to the Yelp Social Media Terms is found here: https://www.yelp.com/static?p=tos. The Social Media Terms are deemed Incorporated Terms hereunder.
2. ACCOUNT SET UP, MAINTENANCE OF ACCOUNT, AND EATZY WIDGET.
• 2.1 Account Set Up. Upon executing this Agreement, Restaurant shall provide certain location and payment data. Thereafter, upon setting up Restaurant’s account on the Platform, Restaurant will be required to create a unique sign-in name (“Sign-In Name”) and password (“Password”), and provide certain additional information that will assist in authenticating Restaurant when Restaurant’s Users log into the Platform in the future (“Unique Identifiers”). When creating the account, Restaurant must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Restaurant’s Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. Restaurant will promptly inform Eatzy of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Eatzy will not be liable for any loss or damage caused by any unauthorized use of Restaurant’s account.
• 2.2 Maintenance of Account. As Eatzy’s business evolves, it may require additional information, authorizations, and permissions from Restaurant from time to time in order to provide Restaurant access to and usage of the Platform and perform its other obligations under this Agreement. When requested by Eatzy, Restaurant shall promptly provide all such information, authorizations, and permissions in accordance with Eatzy’s request. When doing so, Restaurant shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to Restaurant or immediate termination of Restaurant’s account. To the extent Restaurant is required to provide any personal information in connection with such requests, Eatzy shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Restaurant’s account. To clarify, the personal information that Restaurant may be required to provide so that Eatzy can comply with its Know Your Customer obligations as permitted under the USA Patriot Act (https://www.justice.gov/archive/ll/highlights.htm, is as follows: Restaurant’s full legal name and tax identification number, plus either (i) Restaurant’s principal’s first and last name, last four digits of his/her social security number, and date of birth, or (ii) a color copy of Restaurant’s principal’s driver’s license.
• 2.3 Eatzy Widget. In order to integrate Restaurant’s website with the Direct Platform, Restaurant hereby grant Eatzy the right, during the Term, to embed the Eatzy widget in Restaurant’s website. To the extent that Restaurant has a web developer that is capable of integrating the Eatzy Widget, Restaurant may authorize that person to do so. To the extent permission to do so is required from a third party acting on Restaurant’s behalf (e.g., Restaurant’s hosting provider, webmaster, etc.), Restaurant will assist us in promptly obtaining such permission and any necessary access credentials. Restaurant shall promptly, and within no more than three (3) business days, inspect the installation of the Eatzy widget on Restaurant’s website and notify Eatzy in writing if Restaurant is not satisfied with the installation.

4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
• 4.1 Fees. As consideration for the rights to use the Direct Platform granted in Section 1, Restaurant shall pay Eatzy its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Restaurant and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if Restaurant orders any Additional Products and Services through the functionality of the Direct Platform, it shall pay Eatzy’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Direct Fees”). As consideration for the rights to use the Discover Platform granted in Section 1, Restaurant shall pay Eatzy a fee (the “Discover Fee”) in accordance with Section 4.4. Eatzy may modify the Direct Fees and the Discover Fees at any time on written notice to Restaurant (including via Restaurant’s individual account in its admin.Eatzy.com dashboard), and any such modification shall go into effect thirty (30) days after such notice. 4.2 Refunds. Click here to view Eatzy’s refund policy (the “Refund Policy”), which is hereby incorporated into and made part of this Agreement. Notwithstanding anything to the contrary contained in the Refund Policy, Eatzy may, at its sole, reasonable discretion, agree to refund Restaurant certain fees paid in the event Restaurant cancels its subscription; provided, however, that Eatzy reserves the right to withhold from any refund, and retain, an amount up to its then-current Set-Up Fees, whether or not such Set-Up Fees were charged to Restaurant at registration.
• 4.3 Taxes. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions, Restaurant shall also pay Eatzy any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes, but excluding any taxes imposed or based on Eatzy’s income (collectively, “Taxes”).
• 4.4 Payments to Eatzy. Eatzy shall authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and Restaurant hereby consents to the same. If Restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in Restaurant’s local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date Restaurant can begin taking Orders or Yelp Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, Eatzy reserves the right to charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
• 4.5 Payments to Restaurant; Yelp Orders. Eatzy may use Stripe, Inc. (“Stripe”) or Braintree, a division of PayPal, Inc. (“Braintree”), to collect credit card payments in connection with Orders. Eatzy reserves the right to use other third-party payment processors at any time during the Term on notice to Restaurant.

a. Restaurant must enter into the Connected Account Agreement (“CAA”) with Stripe and its sponsoring bank. The CAA is available at https://stripe.com/connect/account-terms. By accepting this Agreement, Restaurant agree: (i) that Restaurant has downloaded or printed the CAA; and (ii) that Restaurant has reviewed and agree to the CAA. Please note that Eatzy is not a party to the CAA and that Restaurant, Stripe, and Stripe’s sponsoring bank are the three parties to the CAA and that Eatzy has no obligations or liability to Restaurant under the CAA. If Restaurant has questions regarding the CAA, please contact Stripe as described in the CAA. If payment for an Order is processed through Stripe, the next business day after an Order settles, which will ordinarily be one (1) to two (2) business days from the actual Order date (depending upon Restaurant’s bank’s settlement process), the following sum shall be deposited into the bank account Restaurant direct payment: the amounts for all executed Orders for which Restaurant has not yet been paid, less (i) any allowances actually made or taken for Order refunds; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: (x) MasterCard, Visa, and Discover: 2.8% + $.30 per Order; and (y) American Express: 2.9% + $.30 per Order. To the extent Order refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes Eatzy and/or Stripe to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such Order refunds on a daily basis. For the avoidance of doubt, Eatzy assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to Restaurant under this Section 4.5(a). To the extent the terms set forth in Section 4.5(a)(iii) above conflict with the terms contained in Restaurant’s CAA, the terms of Section 4.5(a)(iii)shall prevail.
b. Restaurant must enter into the Merchant Services Agreement (“MSA”) with Braintree and its sponsoring bank. The MSA is available at www.braintreepayments.com/agreements/merchant. By accepting this Agreement, Restaurant agrees: (i) that Restaurant has downloaded or printed the MSA; and (ii) that Restaurant has reviewed and agree to the MSA. Please note that Eatzy is not a party to the MSA and that Restaurant, Braintree, and Braintree’s sponsoring bank are the three parties to the MSA and that Eatzy has no obligations or liability to Restaurant under the MSA. If Restaurant has questions regarding the MSA, please contact Braintree at 877.434.2894. If payment for an Order is processed through Braintree, the next business day after an Order settles, which can be one (1) to three (3) business days from the actual Order date (depending upon Restaurant’s bank’s settlement process), the following sum shall be deposited into the bank account Restaurant direct payment: the amounts for all executed Orders for which Restaurant has not yet been paid, less (i) any allowances actually made or taken for Order refunds; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: For U.S. Restaurants(x) MasterCard, Visa, and Discover: 2.8% + $.10 per Order; and (y) American Express: 3.5% + $.15 per Order. To the extent Order refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes Eatzy and/or Braintree to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such Order refunds on a weekly basis. For the avoidance of doubt, Eatzy assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to Restaurant under this Section 4.5(b). To the extent the terms set forth in Section 4.5(b)(iii) above conflict with the terms contained in Restaurant’s MSA, the terms of Section 4.5(b)(iii) shall prevail.
c. RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT EATZY IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPE AND/OR BRAINTREE FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE OR BRAINTREE, AS APPLICABLE, PURSUANT TO THE CAA OR MSA, AS APPLICABLE. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES EATZY FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’S AND/OR BRAINTREE’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
d. If Restaurant’s account has been set up to accept Yelp Orders, Restaurant hereby authorizes Eatzy to process such Yelp Orders. In connection with any Yelp Orders, Eatzy is scheduled to receive payments from the applicable third-party platforms on a weekly basis. Within ten (10) business days of receiving payment from a third-party platform for Yelp Orders, the following sum shall be deposited into the bank account Restaurant directs: the amounts for all such Yelp Orders for which Restaurant has not yet been paid, less (i) any allowances actually made or taken for refunds; (ii) any third-party delivery charges; and (iii) ten percent (10%) of such Yelp Orders, (which includes credit card processing fees). To the extent refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes Eatzy to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such refunds on a weekly basis. For the avoidance of doubt, Eatzy assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to Restaurant under this Section 4.5(d).
• 4.6 Taxes On Orders and Yelp Orders. In connection with all Orders and Yelp Orders, Restaurant represent, warrant, and covenant to Eatzy that Restaurant shall: (i) ensure that the tax rates set forth in Restaurant’s Eatzy dashboard are accurate, complete, and up-to-date; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and Yelp Orders and the processing of such Orders and Yelp Orders for Customers (excluding any taxes imposed or based on Eatzy’s income).
• 4.7 Subscription Plans. At any time during the Term, Restaurant, if it originally selected a month-to-month subscription, may convert to an annual or two year subscription plan on thirty (30) days’ notice to Eatzy. After the first or second year of the Term, if the Restaurant originally selected an annual or two year subscription, such subscription shall be automatically converted to a month-to-month plan for the remainder of the Term. Restaurant may add new locations at any time during the Term on notice to Eatzy, including through the Platform, via e-mail, or by phone.
• 4.8 PCI Compliance. Eatzy is responsible for the security of cardholder data received from Restaurant and/or Customers, including, without limitation, when Eatzy uses third-party payment processors to process Orders. To the extent that Eatzy stores, processes, or transmits cardholder data, Eatzy complies with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other applicable laws, rules, and regulations.

5. TERM, TERMINATION, AND SUSPENSION.
• 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
• 5.2 Termination and Suspension. Either Party may terminate this Agreement for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach. Eatzy may terminate this Agreement at any time, for any or no reason, upon thirty (30) days’ prior written notice to Restaurant (without penalty or liability). Further, Eatzy may terminate this Agreement immediately, upon notice to Restaurant, if Eatzy determines in its sole, reasonable discretion, that Restaurant has acted in a manner that disparages Eatzy or otherwise exhibits behavior toward Eatzy or its staff that is contrary to Eatzy’s code of ethics and business conduct, or if Eatzy discovers that Restaurant has sold, offered for sale, or attempted to sell cigarettes or other tobacco or nicotine products, which are expressly prohibited on the Platform. If Restaurant desires to terminate this Agreement for convenience and without cause, it shall: (i) submit a cancellation request form (available upon request from Eatzy’s Support Team or Restaurant Success Team); or (ii) complete a cancellation consultation call with its Restaurant Success Manager. The purpose of this process is for Eatzy to review account details and provide the return process for any leased hardware. Upon completion of this cancellation process, this Agreement shall automatically terminate in thirty (30) days. Eatzy may suspend access to the Platform or remove some or all Restaurant Content in Eatzy’s sole discretion, if Eatzy reasonably believes that Restaurant, Restaurant’s patrons, or any third party is engaged in: (x) any activity that may harm Eatzy, its systems, or any third-party systems; or (y) fraudulent or illegal activity or any other activity that could result in legal liability to Eatzy or any third party. Further, Eatzy may suspend access to the Platform if Restaurant fails to make a payment on time until all overdue amounts are paid. Any such suspension may continue until the activity causing the suspension has been cured, and Eatzy has received satisfactory assurances that it will not recur.

• 5.3 Hibernation Period. At any time during the Term, Restaurant may, upon written notice to Eatzy, temporarily pause its subscription to the Platform for a period of up to six (6) months (the “Hibernation Period”). Restaurant shall be responsible for certain de-activation and re-activation fees associated with the Hibernation Period, including, without limitation, the cost of shipping leased equipment (including Tablets and Wireless Printers) to Eatzy during the Hibernation Period and back to Restaurant upon expiration of the Hibernation Period.

• 5.4 Effect of Termination. Upon termination of this Agreement:

a. Restaurant shall be paid any amounts payable under Section 4.5(a), Section 4.5(b), and Section 4.5(d);
b. Eatzy shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.4 and any other amounts due under this Agreement; and
c. All rights and licenses granted hereunder will immediately cease, and Restaurant will immediately cease all access to and use of the Platform and return the Tablet and any leased Wireless Printers as set forth in Section 1.3, and Eatzy may draw against the Deposit, as set forth in Section 1.3.
d. Eatzy shall remove the Eatzy widget from Restaurant’s website if Eatzy has the credentials to do so, otherwise Restaurant’s web developer shall do so.
• 5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.5 (“Additional Products and Services”); Section 1.6 (“Incorporated Terms”); Section 5.4(“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8(“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.5 (“Survival”).
6. OWNERSHIP.
• 6.1 Intellectual Property. Eatzy owns and shall own all right, title, and interest in and to the Platform and the Android Branded Apps, including all source code, object code, operating instructions, and interfaces developed for or relating to the Platform and/or the Android Branded Apps, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Eatzy Intellectual Property”). Restaurant will have no rights with respect to the Eatzy Intellectual Property other than those expressly granted hereunder. Restaurant owns and shall own all right, title, and interest in and to the Restaurant Content, the IOS Branded Apps, and the Restaurant Marks, including all copyrights and other intellectual property rights relating thereto (the “Restaurant Intellectual Property”). Eatzy will have no rights with respect to the Restaurant Intellectual Property other than those expressly granted hereunder.
• 6.2 Data. All Data shall be jointly owned by Eatzy and Restaurant. During the Term and indefinitely thereafter, the Data may be used by either Party for internal business purposes, for purposes of performing under this Agreement, and for other lawful purposes in accordance with all applicable laws, rules, and regulations, including, without limitation, privacy and data protection laws and regulations. In addition, Eatzy may disclose Data to third parties with whom Eatzy contracts, provided that such third parties are required by contract to treat such Data as confidential information and at all times maintain the confidentiality of such Data. Notwithstanding the foregoing, each Party hereby represents, warrants, and covenants that it shall not sell, license, or commercialize the Data, in any respects, in whole or in part.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
• 7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall 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, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Restaurant, any franchise agreement.
• 7.2 Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform; (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders and Yelp Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders and Yelp Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders or Yelp Orders that are scheduled to be delivered to a Customer by a third-party delivery service, Restaurant shall package the Order or Yelp Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order or Yelp Order is available for pickup upon the third-party delivery service’s arrival; (v) if it has signed up for On-Demand Delivery, it shall not offer alcohol on its online menu through the Platform, and if it attempts to do so, Eatzy may, in its sole discretion, terminate Restaurant’s participation on the On-Demand Delivery program; (vi) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order or Yelp 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; (vii) the Restaurant Content and the Restaurant Marks and Eatzy’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (viii) Restaurant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with Eatzy’s use of the Restaurant Content and the Restaurant Marks and/or Eatzy’s exercise of any license granted hereunder, and Eatzy shall not be obligated to pay any fees in connection therewith. Restaurant is solely responsible for ensuring that the Restaurant Content is at all times accurate, complete, and up to date on the Platform including, without limitation, Restaurant’s menu, hours, address, pricing, and promotions. Eatzy is not responsible for any Restaurant Content that is incorrectly entered or out of date on the Platform.
• 7.3 Disclaimer.
a. EATZY CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY RESTAURANT WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY EATZY HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EATZY MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE RESTAURANT MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR 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.
b. EATZY HAS MADE EVERY EFFORT TO DISPLAY THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF RESTAURANT’S COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH EATZY WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES CONFORM TO RESTAURANT’S EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL TABLETS, ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON TABLETS AND ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TABLET OR ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH TABLET OR ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN RESTAURANT’S LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
c. ORDERS MAY BE DELIVERED BY THIRD-PARTY DELIVERY SERVICES THAT ARE PARTNERED WITH EATZY AND/OR BY NON-AFFILIATED THIRD-PARTY DELIVERY (“UNAFFILIATED DELIVERY SERVICES”). EATZY IS NOT LIABLE TO RESTAURANT, CUSTOMERS, OR ANY THIRD PARTIES FOR ANY ACTS OR OMISSIONS OF UNAFFILIATED DELIVERY SERVICES AND RESTAURANT USES SUCH UNAFFILIATED DELIVERY SERVICES AT ITS OWN RISK.
8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO EATZY HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS; (C) ANY DAMAGE TO OR LOSS OF THE TABLET AND/OR ANY LEASED WIRELESS PRINTERS; OR (D) RESTAURANT’S BREACH OF SECTION 1.4; (II) EATZY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO EATZY UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF EATZY AND ITS DELIVERY SERVICE VENDOR FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
9. INDEMNIFICATION.
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, Restaurant shall indemnify, defend, and hold harmless the Eatzy Indemnified Parties from and against any and all Losses incurred by such Eatzy Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Restaurant’s breach or alleged breach of the Incorporated Terms and/or Section 4.6; (ii) an Adverse Event; or (iii) the processing of Orders and/or Yelp Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
10. PUBLICITY.
During the Term, Eatzy shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that Restaurant is a client of Eatzy and a user of the Platform. In addition, upon the reasonable request of Eatzy, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties.
11. MISCELLANEOUS PROVISIONS.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. 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. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required), and provided that, in the case of Restaurant’s assignment to such a successor of Restaurant’s assets, the assignee shall (i) assume all obligations of the assigning Party hereunder (including equipment leases) and become a party to this Agreement, and (ii) provide Eatzy with all necessary onboarding information including location and payment data, the last four digits of assignee’s social security or tax identification number, and furnish Eatzy with all forms and documents reasonably requested including, without limitation, Form SS-4. Eatzy shall not be liable to Restaurant or any Restaurant assignee for any liabilities or losses incurred in connection with the assignment. This Agreement is entered into in the State of California and shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Los Angeles, CA pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, Eatzy may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and the Additional Terms is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that Eatzy may modify this Agreement and/or the Additional Terms at any time by posting such modification on Restaurant’s individual account in Restaurant’s admin.Eatzy.com dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is Restaurant’s responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
12. DEFINITIONS.
• Defined terms have the meanings set forth in this Section 12 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.
• 12.1 “Additional Products and Services” means products and services, other than access to the Platform, that Restaurant may order from Eatzy, including, without limitation, Eatzy Discover, website development services, marketing services, paper products, data connectivity, Wireless Printers, and LTE Tablets.
• 12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order or Yelp Order.
• 12.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
• 12.4 “Branded Apps” means the Restaurant-branded mobile applications set up by Eatzy and owned by Restaurant. Branded Apps for IOS are called “IOS Branded Apps,” and Branded Apps for Android are called “Android Branded Apps.”
• 12.5 “Customer” means a unique profile that submits an Order or Yelp Order.
• 12.6 “Direct Platform” means Eatzy’s direct social and mobile meal-ordering platform, which is accessed via Eatzy’s Facebook social plugin for Restaurant’s Facebook page, the Branded Apps, and/or Restaurant’s website; and shall also include the Tablet and the Branded Apps.
• 12.7 “Discover Platform” means Eatzy’s Yelp meal-ordering platform Customers to discover new restaurants, which is accessed via Eatzy’s website, www.Eatzy.com, and/or Eatzy’s dedicated Discover website, eat.Eatzy.com; Eatzy’s Google Place Actions plugin; and/or Eatzy’s mobile application.
• 12.8 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
• 12.9 “Effective Date” means the date Restaurant accepted this Agreement.
• 12.10 “First Time Order” means the first Order placed by a Customer through the Discover Platform for a particular Restaurant location, excluding: (i) instances in which the same Customer previously ordered through the Direct Platform for the same Restaurant location; and (ii) subsequent Orders placed by the same Customer at the same Restaurant location.
• 12.11 “Menu” means Restaurant’s menu submitted to Eatzy, as updated by Restaurant from time to time.
• 12.12 “On-Demand Delivery” means delivery of Orders using Eatzy’s network of local and regional third-party delivery service providers, which Restaurants may opt into in connection with their use of the Platform.
• 12.13 “Order” means a meal order for Restaurant’s food and/or beverages submitted by Customers through Eatzy via the Platform.
• 12.14 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
• 12.15 “Restaurant Content” means any content submitted by Restaurant to Eatzy, including, without limitation, the Menu.
• 12.16 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
• 12.17 “Term” has the meaning specified in Section 5.1.
• 12.18 “User” means an employee or agent of Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

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