Last update: April 18, 2018
TERMS AND CONDITIONS FOR USE BY ANY RESTAURANT
and the CurbnGo mobile application
,” and together with the Site, hereinafter referred to as the “Platform
”), as provided by CurbnGo USA LLC (“CurbnGo
”) to sell Restaurant products (the “Products
- Term. This Agreement may be cancelled by either party without cause on 3 days prior written notice to the other party.
- Right and Obligations of CurbnGo:
- Curbngo agrees to enable customers to purchase Products from Restaurnat via CurbnGo’s proprietary ordering system as made available from time to time via the Platform (the “Services”). Curbngo may create, maintain and operate a microsite (a “Microsite”) and obtain the URL for such Microsite on Restaurant’s behalf, which Restaurant grants CurbnGo the right to do.
- CurbnGo agrees to include certain content (including without limitation, menus, photographs, trademarks and logos) provided by the Restaurant (the “Restaurant Content”) on the Platform. CurbnGo owns all right, title, interest and copyright in and to the Platform and any content supplied by CurbnGo (including on the Microsite), and will have sole editorial control over the Platform and the Services, including the presentation of the Restaurant Content.
- CurbnGo will transmit orders to Restaurants for processing as part of the Services. CURBNGO EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PLATFORM, THE SERVICES, AND THE MICROSITE, 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 CurbnGo shall not be liable for damages resulting from the failure of the Microsite, the Platform, the Services or the Restaurant Content.
- CurbnGo will use best effort to ensure the Platform is available during the Restaurant’s operational hours, provided, however, that CurbnGo makes no representation or warranty with regard to the level or frequency of availability of the Platform.
- Rights and Obligations of Restaurant:
- Restaurant agrees to use its best efforts to prepare and deliver or make available for pick-up, Product orders placed via the Platform (the “Orders”) in accordance with the specifications set forth on this form (the “Specifications”). The item pricing must be at least as favorable to the consumer as that which is available for Restaurant’s standard delivery/takeout menu or offered to any 3rd party service.
- Restaurant hereby grants to CurbnGo a perpetual, royalty-free, worldwide right and license to use the Restaurant Content on the Platform and Microsite and for marketing and promotional purposes via any means now known or hereinafter developed. Restaurant owns all right, title and interest and copyright in and to the Restaurant Content, subject to the license granted to CurbnGo herein.
- Restaurant agrees that it will maintain the confidentiality of all non-public information that Restaurants acquires in the course of performing its obligations arising under this Agreement, including without limitation all customer information, as well as the terms and conditions of this Agreement (the “Confidential Information”). Restaurant will not directly market to or solicit any consumer or company obtained through the Platform or via the Services for the purpose of soliciting that customer to order directly from Restaurant or through a 3rd party (this excludes paper menus).
- Restaurant represents and warrants: (i) it has the authority to enter into this Agreement, and doing so won’t violate any other agreement to which it is a party; (ii) the Restaurant Content won’t violate the rights of any 3rd party; (iii) it will comply with all laws, rules and regulations relating to the preparation, sale and delivery of Products (including alcohol), including any laws regarding timely and full payment of tips to employees, as well as any other laws applicable to its business, including wage and hour laws; (iv) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms; (v) Restaurant is solely responsible for maintaining accurate food and price listings on the Platform; CurbnGo has no responsibility to ensure accuracy of any such price or food lists; and, the Restaurant will honor all Orders made via the Platform regardless of the currency or accuracy of any price or food list on which such Order was based; and (vi) Restaurant will not sell any alcohol product to any consumer under the legal drinking age in the jurisdiction in which the Restaurant is located, and will confirm the legal age of any consumer requesting to purchase any alcohol products from the Restaurant via the Platform. Restaurant will indemnify and hold CurbnGo harmless (including its directors, employees, officers, agents and affiliates) harmless from any and all claims, actions, proceedings and damages arising out of Restaurant’s activities (including any 3rdparty transactions or financing arrangement) or any breach or alleged breach of these representations and warranties.
- Restaurant acknowledges that payment for any Order processed via the Platform is made instantly, and hereby agrees that Restaurant may not cancel any Order processed via the Platform.
- The Restaurant agrees that during the period commencing on the date this Agreement is executed by the Parties, and ending on the date that is eighteen (18) months after the date that this Agreement is terminated by the Parties, Restaurant shall not, and it shall take all commercially reasonable efforts to cause its affiliates to not, either directly or indirectly, for itself or any third party, (1) employ or otherwise engage, or offer to employ or otherwise engage, any person who is then an employee, consultant or agent of CurbnGo, or (2) interfere with or harm the contractual or business relationships with any vendor, supplier, customer, client, licensor, licensee or independent contractor of CurbnGo.
- Payment and Fees:
- For use of the Platform, CurbnGo will charge an “Application Fee” for each order processed. Application Fees for use of the Platform will be paid by the customers. Curbngo will not attempt to collect from the Restaurant any Application Fees, unless the Restaurant agrees upon registration to cover and pay the Application Fees in place of the customer. CurbnGo reserves the right to change, from time to time as it sees fit, in its sole discretion, how much the application fee will be.
- Stripe Account. Payment processing services for the Restaurant on the Platform are provided by Stripe and are subject to the Stripe Connect Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By entering into this Agreement, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Platform enabling payment processing services through Stripe, you agree to provide the Platform accurate and complete information about you and your business (as appropriate), and you authorize the Platform to share it and transaction information related to your use of the payment processing services provided by Stripe. In agreeing to use Stripe to process payments for any Order from your Restaurant made via the Platform, you agree that a non refundable percentage of sales set in your contract, will be withdrawn from your Stripe account after each such Order.
- Refunds. Restaurant can issue refunds on any order for any amount they choose via the Curbngo Platform. Restaurant agrees that if they choose to issue a refund for an order, any amount of the Curbngo Application Fee that was refunded will be covered by the Restaurant and will be withdrawn from the Restaurants connected bank account.
- Restaurant and CurbnGo agree that all claims or disputes arising out of this Agreement, shall 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 (the “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 of arbitration will be shared equally by the parties unless otherwise prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding shall take place in the county where the Restaurant is located unless otherwise agreed. A court of competent jurisdiction shall have the authority to enter judgment on the arbitrator’s decision/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 Wavier may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (1) claims in small claims court; (2) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (3) claims for temporary relief in connection with an arbitrable controversy; and (4) claims that are non-arbitrable per the applicable federal statute.
- Miscellaneous. With the exception of the Arbitration Agreement in Section 5, which is governed by the FAA, this Agreement shall be governed by New York law. This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. CurbnGo is an independent contractor of Restaurant. This Agreement can only be modified in writing signed by both parties. In the event that any portion of this Agreement is held to be unenforceable, the remainder of the provisions shall remain in full force and effect. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party shall be entitled to obtain specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. Restaurant may not assign this Agreement without the prior written consent of CurbnGo, and if permission is secured, the assignor will provide CurbnGO with advance written notice so that payment can be directed appropriately. This Agreement shall be binding on the parties’ permitted heirs, successors and assigns. This provision as well as the ownership, warranties, indemnity, arbitration and confidentiality provisions shall survive any expiration or termination of this Agreement.