MERCHANT TERMS AND CONDITIONS FOR CURBNGO USA, LLC

Last update: September 10, 2021

HEREIN CONTAINS CRUCIAL INFORMATION REGARDING YOUR OBLIGATIONS, RIGHTS, CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU WHEN YOU CHOOSE TO USE ANY AND ALL SERVICES, SOFTWARE, OR HARDWARE (COLLECTIVELY “PLATFORM”) MADE AVAILABLE BY CURBNGO USA, LLC (“COMPANY” “CURBNGO” “WE OR US” AS CONTEXT REQUIRES). PLEASE READ IT CAREFULLY.

MERCHANT (“OR “YOU” OR “YOUR” AS CONTEXT REQUIRES) AGREES TO BE BOUND BY ALL OF OUR LEGAL DOCUMENTS OF WHICH ARE INCORPORATED INTO THESE MERCHANT TERMS BY REFERENCE AS APPLICABLE TO THE PARTICULARIZED SERVICES         MERCHANT USES.

CERTAIN REFERENCES TO US MAY ALSO BE DEEMED TO APPLY TO OUR FINANCIAL PARTNERS, WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER SAID CLAUSE, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF ON AN INDIVIDUAL BASIS.

1. BACKGROUND

SCOPE: All parties that wish to utilize the platform, or entities related to such merchants, any location owned, operated or affiliated with such merchants, its employees or personnel (“Merchants”) that wish to utilize the Platform are bound by these terms and conditions (“Terms”) at any moment of using our Platform. Using our Platform or paying for such, does not constitute a sale or ownership of any part of the Platform; however, it does grant the Merchant a license to USE such Platform when made available by Curbngo. These Terms and our Privacy Policy apply to any use of the Platform. If you do not agree to any portion of these Terms or our Privacy Policy, please stop using our Platform immediately.

IN THE EVENT YOU BREACH ANY FACET OF THESE TERMS, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION TO IMMEDIATELY TAKE ACTIONS IN REGARD TO MODIFICATION OF YOUR RELATIONSHIP WITH CURBNGO, UP TO AND INCLUDING IMMEDIATE TERMINATION.

CAPACITY: You hereby acknowledge that you are of legal capacity to enter these Terms and you agree to bind all of your personnel to these Terms. When you take any action on behalf of an entity or an individual, you affirm you have the necessary legal authority to bind such party, if not, you may not use our Platform in any way to the extent such restriction is permissible by law.

  • Accordingly, other identical businesses owned and/or operated by the contracting entity may utilize these Terms if they follow the same rules as the contracting entity and agree to be bound by these Terms.
  • All Merchants agree to abide by all laws applicable to them in relation to the Platform. Those who act in contravention of such requirements, will have breached these Terms.

OUR PLATFORM: We offer a digital Platform whereas we provide Merchants and their personnel the opportunity to process orders and payments from customers. Our relationship shall never be interpreted to be an agency, partnership, fiduciary or joint venture between us and you, or any other Merchant or customer. You are responsible for your expenses, profits, and losses.

MODIFICATIONS

Review Most Updated Terms: Review these Terms and our Privacy Policy before using the Platform. These Terms are subject to revision without prior notice at any time, in our sole discretion. Any changes will be in effect as of the “Last Updated Date” as shown on our website. Continued use of the Platform after such update(s) will confirm your acceptance of such changes.

Our Right to Modify/Disable Platform or Offerings: We reserve the right, in our sole discretion, to change, suspend, or discontinue the Platform or any part of such (including availability of any portion) at any time without notice. We may, in our sole discretion, remove some of your products or your whole store from the Platform if we determine that such product or store could subject us to liability or risk such as regulatory, health or safety. By continuing to access or use the Services after revisions have become effective, you agree to be bound by the revised Terms.

CURBNGO FEES: Curbngo has the right at its sole discretion to markup your pricing to the customer and/or charge any service fees to the customer for each order processed. Curbngo, in its  sole discretion, reserves the right at any time to modify its markup or service fee(s). Continued use of the Platform after such increases, demonstrates your implied acceptance to these Terms and fee modifications.

ORDER ACCEPTANCE: Merchant may accept orders via the Platform and fill the orders for customers. We assume no responsibility in regard to customer’s satisfaction with his or her order. Customer may request to modify an order, reject an order, request a refund, or an exchange; it is your responsibility and your responsibility alone, to determine whether to honor such request. Illegal items may not be sold through the Platform. We may decline orders at our sole discretion, for any reason and at any time, even after we send you and/or a customer a confirmation with the order number and order details. Further, we reserve the right to prohibit the sale of items based upon external characteristics, such as height or length or any other reason that suits our commercial purpose. Merchant is responsible to handle all issues and complaints with customers. Curbngo will forward any issues customers may have directly to the Merchant at its earliest convenience.

REFUNDS: Merchants can issue refunds on any order for any amount they choose, via the Platform. When Merchant issues a refund or asks us to issue a refund, credit, or re-order on its behalf, Merchant agrees to cover any Curbngo fee(s) or markup on that order. Curbngo does not return its markup or service fees.

DISPUTES: If a customer disputes a charge for whatever reason, Curbngo or the payment processor we provide you with, will notify you of such dispute at its earliest convenience and you alone shall be solely responsible to manage such disputes. If you have direct access to your payment processors merchant account, it is your sole responsibility to review your account and to manage such disputes. Any and all fees associated with any dispute(s) are the responsibility of the Merchant.

MERCHANT PRODUCT PRICING: Merchant is solely responsible for maintaining accurate product listings, including the pricing, on the Platform. Curbngo has no responsibility to ensure accuracy of any such listing and Merchant will honor any and all Orders made via the Platform regardless of the currency or accuracy of the pricing or description in the listing used to place the order.

TITLE AND DELIVERY: Should Merchant opt-in to using one of our delivery services, the title and risk of loss are held by Merchant until delivery. In the event of pickup, dine-in, or curbside delivery, the Merchant holds title and liability for the order until the order is in the hands of the customer. All Delivery and preparation times are estimates only, and cannot be guaranteed; thus, we are not liable for any such errors or delays in timing. You agree that you hold title to anything you offer on the Platform. Merchants agree that neither the driver nor Curbngo acquires any ownership interest or any corresponding liability in any goods or offering of any kind that you provide via the Platform to a customer.

MERCHANT DUTIES: Merchant using the Platform, prior to going live, will:

  • Provide us with your current complete product offering list, including the price of each item and corresponding barcodes for all items (if relevant);
  • Inform us of your hours of operation.
  • If you have scheduled an install from us and have failed to provide any of the above, for each day that we have to delay your installation, you will be required to pay a fee of $250 per day.
  • If an onsite visit is required to gather any additional information, you will be required to pay a fee of $500 per visit. 

On an ongoing basis, Merchant agrees to:

  • Monitor your product list, pricing, schedules, and keep the above current.
  • Ban any illegal discrimination or harassment in the workplace or toward customers or us;
  • NEVER DISPARAGE THE COMPANY EXPRESSLY OR IMPLIEDLY, IN ANY WAY AND ANYWHERE INCLUDING VIA E-MAIL, TEXT, SOCIAL MEDIA, IN PERSON, VIA PHONE, OR IN ANY OTHER WAY IN WHICH INTERPERSONAL COMMUNICATION IS CONDUCTED.
  • Comply with all applicable laws, regulations, standards and rules, including training employees on such, relating to labor, health, safety and appropriate licensing
  • Will not list any products with age requirements necessary for purchase, unless they confirm that such individuals can legally affect such transaction(s);
  • Provide services in compliance with all environmental laws and regulations.
  • Comply with all anti-trust, anti-bribery and corruption law;
  • Not discriminate against anyone in a protected class in relation to this agreement.

You have a duty to list the below within your listings, we shall never have any liability for any such requirements: 

  • Consumer-facing warnings, requirements or relating to instructions associated with your product list;
  • List allergens in any of your items listed on our Platform.

2. PAYMENT, FEES, AND TAXES.

A. Consent to Payment Processor(s)

Third Party Merchant Processing Account: Currently, we use Stripe (https://stripe.com) to process Merchant payments. By using our platform, you agree to be bound by all of Stripe's posted legal agreements and terms. Please refer to ALL of Stripe's legal documentation to understand your rights and obligations. We may change this provider at any time and will notify you of such via e-mail upon thirty days’ notice. Merchant grants Curbngo consent to create, manage, and control Merchant's Stripe account, and Merchant agrees to provide all necessary information to stay up to date with compliance. Failure to provide such information will be a breach of these Terms and may result in a pause of, or termination of services. 

If Merchant is using a different Payment Processor for some or all of its transactions, then Merchant agrees to bound by such Payment Processor’s terms and conditions. 

  • Curbngo is entitled to deduct from order funds our markup, service fees, unpaid monthly payment plans and any other reasonable fees.
  • You are responsible for all taxes and other governmental fees on your sales and for remitting such taxes and fees.
  • Your monthly software fees to Curbngo shall be covered by credit card or ACH when setting up your account.
  • If with written consent from company a third party provides services to you via the Platform and charges us, we will pass such charges along to you.
  • Issues pertaining to billing must be raised within 30 days of the bill otherwise you are deemed to have waived such concern.
  • All upfront hardware purchases or onboarding, setup, & installation fees must be paid in full prior to going live.
  • If you are on a monthly service plan, once you have made a payment for an upcoming month, that payment is not refundable even if you terminate service prior. Software or Service plans are not on a pro-rata basis.
  • If you fail to make a payment(s) for a monthly service plan, you will receive written notification through email stating that you're subject to having your account paused or terminated, within two (2) business days, at Curbngo’s sole discretion, until such time that payment(s) for all delinquent amounts have been received. 

3. INTELLECTUAL PROPERTY AND DATA PRIVACY

A. Merchant intellectual property

MIP License: Merchant grants to Curbngo a royalty-free, non-exclusive, limited, revocable, non- transferable, non-sublicensable right and license to use and display the Merchant intellectual property (“MIP”) as reasonably necessary to transact business. MIP includes, menus, images (either provided by you or on Merchant’s website), trademarks, logos and other materials provided by Merchant to Curbngo.

Image Standards: If images do not meet our standards, Merchant, at Merchant’s sole expense, consents to Curbngo:

  • Engaging with a professional photographer
  • Enhancing Merchant’s existing photographs or
  • Using stock photos of the item, and displaying such on the Platform as representations of Merchant’s menu items; Curbngo is not liable for any misconceptions of any stock photo images not correctly representing such product offering(s) in any way. 

Any images on the platform must conform with objectively acceptable standards for such platform.

Failure to follow such standards shall be deemed a breach of the Terms.

B. Confidential Information.

Definition: “Confidential Information” shall mean any confidential or proprietary business, technical or financial information of a party (“Disclosing Party”) provided to the other (“Receiving Party”) in connection with these Terms, via any oral or physical medium, and shall include the terms of this Agreement. Without limiting the foregoing, Curbngo Data is the Confidential Information of Curbngo.

Receiving Party Affirmations: The Receiving Party shall:

  • Not access or use Confidential Information unless necessary to exercise its rights or perform its obligations in accordance with these Terms;
  • Not attempt reverse engineering of any facet of the Platform or the Platform in its entirety.
  • Not disclose or permit access to Confidential Information other than necessary to employees, officers, directors, agents, consultants, independent contractors, agents, service providers, subcontractors and legal advisors (“Representatives”) to exercise its rights or performance of its obligations under and in accordance with these Terms;
  • Not allow any third party to copy, modify, sell, rent, distribute, lease reverse engineer, or otherwise try to access our source code; damage or impede the Platform; or breach any security protection on the Platform.
  • Safeguard the Confidential Information from unauthorized access, use or disclosure, exercising at a minimum the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
  • Generally comply with competition laws.

Required Disclosures: If required by law to disclose any Confidential Information then, you must promptly notify us, as permitted by law, in writing of such.

C. Data

Data Covenants: By using the Platform you agree that all data that goes through the Platform belongs to Curbngo. You agree not to utilize, handle, or transfer our data, unless necessary to perform your obligations herein. You may not aggregate or combine our data with data from other sources to attempt re-identification, behavioral advertising, or any other similar objectives.

Security Covenants: You must keep our data secure from unauthorized access and maintain the accuracy and integrity of our data you have access to by using appropriate organizational, physical and technical safeguards, always. This includes implementation of a security program in accordance with our standards. You may never permit third-parties to have unnecessary access to our data. If you become aware of any unauthorized access to our data, you must immediately notify us, consult and cooperate with investigations and potential notices, and provide any information requested by us.

4. RATINGS & FEEDBACK

FEEDBACK: Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to Curbngo, and acknowledges that Curbngo is free to use, disclose, reproduce, and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in Curbngo’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Curbngo.

RATINGS AND REVIEWS. You acknowledge and agree that customers may provide rating or reviews as to their impression of your product offerings or service, and such ratings or reviews may be shown on the platform to the public at our sole discretion. You acknowledge that we do not screen any ratings or reviews and that we reserve the right to remove or revise such ratings or reviews at any time from the platform.

5. TERMINATION

You may terminate these Terms for any reason at any time upon 30 days prior written notice. We may terminate your rights to use the Platform or any of these Terms or any promotion hereunder for any reason at any time upon written notice. Email shall suffice for written notice. We will never be responsible for any fee or losses you incur arising out of or relating to termination.

6. INDEMNITY

You will, at your own expense, indemnify, defend and hold us harmless from and against all claims brought against us by a third party arising from or in connection with your, or your employees, contractors or agent, gross negligence, willful misconduct any breach of these Terms; any violation or claimed violation of a third party’s rights or in connection with any violation or alleged violation of any rule, regulation, law, or health and safety code, applicable to your products or services under this agreement as well as any claims for illness or bodily injury resulting from your products or services or our hardware installed at your location. You must provide us with immediate notice of such claim, with all necessary information as it pertains to such claim.

Note: All hardware purchased from Curbngo will be the sole property of the Merchant, and any damages or claims arising from such property shall be the sole responsibility of the purchasing Merchant. Any other limitations of liability, indemnities, or other protections, granted to Curbngo herein or as provided by law, shall be applicable to hold Curbngo completely harmless and without any obligation of any kind resulting from said purchases or in any other instance, where Merchant shall use Curbngo hardware on site.

7. LIMITATION OF LIABILITY:

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND APPLICABLE TO ALL THEORIES OF LAW AND EQUITY, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS MAY NOT EXCEED $5,000. WE WILL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND INCLUDING LOST PROFITS, GOODWILL, OR THE COST OF PURCHASING REPLACEMENTS, IRRESPECTIVE OF WHETHER SUCH DAMAGE OR POTENTIAL FOR THE AFOREMENTIONED WAS DISCLOSED, FORESEEABLE OR KNOWN TO YOU FURTHER, WE WILL NOT BE LIABLE FOR YOUR LOSS OF PERMITS OR LICENSES YOU REQUIRE TO OPERATE YOUR ORGANIZATION.

Disclaimer: UNLESS EXPRESSED TO CONTRARY HEREIN, WE MAKE NO REPRESENTATIONS, AND WE DISCLAIM ALL WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM AND EQUIPMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY SERVICES PROVIDED THROUGH THE PLATFORM THAT ARE PROVIDED BY THIRD PARTIES WHO ARE NOT EMPLOYEES OR AGENTS OF CURBNGO, YOU USE SUCH SOLELY AT YOUR OWN RISK, AND CURBNGO DOES NOT PROMOTE, APPROVE, OR CERTIFY SUCH THIRD PARTIES. IN THE EVENT YOU ENCOUNTER ANY CONCERN OR CLAIM WITH SUCH PARTY, THE ONLY PARTY WITH WHOM TO RESOLVE SUCH WOULD BE THE THIRD-PARTY PROVIDER OFFERING THE PRODUCT OR SERVICE THAT CAUSED YOUR CONCERN OR CLAIM.

Force Majeure:

Neither party shall be in default of its duties herein to the extent its performance is (a) delayed or prevented by any act of God, national disaster, strike, embargo, riots, sabotage, utility disruption or outage, equipment failure, or widespread communications network or internet failure for more than 48 hours, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable acts, or reasonably through the use of substitute services, alternate sources, or other ways by which the duties of a buyer very similar to the Services hereunder would be satisfied. Events meeting both of these criteria are referred to as “Force Majeure Events.” Upon such Event, the non-performing party shall

be excused from any further performance of the impacting duty for as long as such circumstances exist, and provided that such party continues to attempt to relaunch performance to the greatest extent possible as soon as possible and without delay.

8. GENERAL.

Jurisdiction: All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice, conflict of law provision or rule (whether of New Jersey or any other jurisdiction) that would cause application of laws of any jurisdiction other than those of the State of New Jersey.

Waiver of Jury Trials and Binding Arbitration. YOU AGREE TO WAIVE ANY RIGHTS TO LITIGATE IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT WOULD HAVE BEEN AVAILABLE IN COURT MAY ALSO BE IMPACTED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN US ARISING FROM OR RELATING IN ANY WAY TO THE PLATFORM WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. FURTHER, ALL MATTERS YOU BRING WHETHER IN COURT OR ARBITRATION WILL BE AS AN INDIVIDUAL AND NEVER AS PART OF A CLASS. The arbitration will be administered by the American Arbitration Association (”AAA”) under its Commercial Arbitration Rules and Mediation Procedures (” Commercial Rules”) The arbitrator will be empowered to grant whatever relief would be available in court. Any award will be final and binding on you and us. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

Reporting Concerns: You must immediately report any suspected or known violations by your employees, agents, or ours, by e-mailing legal@curbngo.com.

Communications: Merchant agrees to receive calls, SMS messages and other communications Subject to  the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns.

Assignment: You will not assign any of your rights or delegate any obligations herein without our prior written consent. Any violating purported assignment or delegation of this Section is null and void. No assignment or delegation relieves you of your duties herein. 

No Waivers: Failure by us to enforce any right or provision herein will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Curbngo.

No Third-Party Beneficiaries: These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.

Notices: All Notices can be sent by electronic mail.

Severability: If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

Entire Agreement: These Terms, our website, company, Terms, and our Privacy Policy will be deemed the final and integrated Terms between you and us on the matters contained herein.