Updated: 02/04/2019 V.1.3
1. ACCEPTANCE OF TERMS
This Restaurant Agreement (“Agreement”) constitutes a legally binding agreement made between you, whether on behalf of an entity (“Restaurant”) or personally (“you” or “your”), and Eappetit, Inc. and its affiliates (collectively “Eappetit”, “us”, “our” or “we”), regarding your use of Eappetit’s website or Eappetit’s mobile applications, and other media outlets, devices, software, or technologies available to Eappetit.
By registering for and/or using the website or Eappetit Services in any manner, including but not limited to visiting or browsing the websites and mobile applications, you agree to all of the terms and conditions contained herein ("Terms”) and conclude a legally binding contract with Eappetit, Inc., a California corporation headquartered in San Jose, California (“Eappetit”). By you accessing the Eappetit website (“Site”) and using or receiving any services offered to you by Eappetit (collectively, the “Service”), and installing, downloading or using supplied software, you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement. Do not access or use the Site if you are unwilling or unable to be bound by the Terms.
"You", "Your" or “Restaurant” refers to you, as any restaurant member of the Site and Service. “User” refers to diners and the general public accessing the site and its services. "We,""Us," and "Our" refer to Eappetit.
"Content" includes, but is not limited to, images, photos, texts, audio, video, location data and all other forms of data and information. "Your Content" or "Restaurant Content" means content that you submit or transmit to upload, share or transmit to, through or in connection with the Site and Service, such as reviews, ratings, images, photos, messages, account information, and any other materials that you publicly display or have displayed in your account profile. "Eappetit Content" means content that Eappetit creates and makes available in connection with the Site. "Third Party Content" means content that arrives from parties other than Eappetit or its users and is available on the Services.
3. CHANGES TO THE TERMS
Eappetit may modify, change or update the Terms from time to time at its own discretion. You should revisit the Terms regularly to ensure compliance. You understand and agree that your continued use of the Site after any such changes in the Terms shall be deemed as your acceptance of the modifications without liability.
Eappetit may offer the Terms in languages besides English. If there are any disparities between the many versions, the English version of the Terms will overrule others.
5. EAPPETIT TERMS FOR SERVICES
A. You acknowledge and agree that the Sites and Services which Eappetit provides may require changes and that Eappetit reserves the right to suspend, cancel, or discontinue any or all products or services at any time without notice, make modifications and alterations in any or all of its contents, products and services contained on the site without any prior notice and without liability. Your continued use of the Site and Services following any such changes shall indicate your acknowledgement of such changes in the Site and Services. You may be required to install certain upgrades or updates to the software to continue using the Sites and Services.
B. You acknowledge and agree that you may be prohibited and/or terminated, in part or in whole, from accessing the Services, your account information, data and other content, which are contained in your account if Eappetit denies access to your account as deemed appropriate and at our sole discretion. You agree that Eappetit shall not be held liable for the termination or for any effect of the termination.
C. By accessing Eappetit’s Site or Services, you agree that the Content on these Sites and Services are the sole responsibility of the person(s) from which such Content originated. Eappetit disclaims any liability for any outdated information. Eappetit does not guarantee the accuracy of the users’ or restaurants' data, menu, services or its price. Unless stated otherwise, all data and images posted by the users and/or restaurants on our Site and Services are the property of Eappetit.
D. Eappetit may use GPS locator capabilities to identify current location data from the mobile phone number that the users provide. You hereby expressly authorize Eappetit to deliver text messages, discounts, updates and other promotions allowed by the GPS locator capabilities to coincide with special promotions or specials offered by you. You may opt out of the Eappetit GPS related features and services by providing written notice of such to Eappetit.
E. Eappetit reserves the right to charge fees, by giving reasonable prior notice, in respect to any product, service or any other aspect of this site.
6. USE OF SITE AND SERVICE
A. In order to use some of the features offered through the Sites and Services, you must create an account and provide restaurant information, including menu items, to take full advantage of all features and services offered by Eappetit. You are solely responsible for keeping your login credentials confidential in order to maintain the integrity of your account. You are also responsible for all activities in connection to your account. You agree to notify us immediately if you find unauthorized activity and use of your account. Eappetit reserves the right to suspend or close your account at any time for any or no reason.
B. In creating an account, you represent that your information is true, accurate and correct. You will also maintain the account with your most up-to-date information as necessary. You may not pose as someone else, create or use an account for anyone other than yourself and the restaurant you represent, provide an email address other than your own, or create multiple accounts.
C. You shall not delete or change any material or information posted by any other user or restaurant. You shall not engage in unsolicited spamming, emailing, posting or messaging.
7. SUBSCRIPTION, FEES, AND CARD SERVICES
Eappetit may charge a nominal Fee for the Services it provides to the restaurants. Our fees for certain features (i.e., Order Transactions, Menu, Banner Ads, Target Ads, Digital Signage, POS, etc.) are applied at the time that the Service is initiated. Eappetit reserves the right to determine the final amount of the fees charged to you and may change any fees for our Service as necessary.
Certain features of the Services and/or products made available through the Service may require the use of and/or link to your credit card and/or your merchant account (together with “Card Services”). Eappetit uses a third-party payment processor (the “Payment Processor”) to link your credit card and/or merchant account for use of the Services. A percentage may be deducted for the use of the Card Services. As applicable, the processing of payments or credits in connection with the Card Services will be subject to terms, conditions, and privacy policies of the Payment Processors and your credit card or merchant account issuer in addition to this Agreement. Eappetit is not responsible for any error by the Payment Processor.
8. REFUND POLICY TO USERS
For refunds (or chargebacks) requested by Users, restaurants will issue credit (at their discretion) through their own credit card processor, PayPal, debit, credit, cash, or other account outside of Eappetit’s system. You also agree to cover any processing fees by the Payment Processor and Eappetit. Once an order has been settled by the restaurant, the transaction is considered final by Eappetit and our standard fees apply. Should a User dispute a payment or request a refund following order settlement, the original transaction fee charged for the Service is final and non-refundable.
9. REFUND POLICY FOR THE SERVICE
For refunds of fees associated with the Service, Eappetit will reimburse any amounts found to be erroneous on the part of Eappetit. We will also reimburse fees paid for our Premium services (i.e., Menu, Banner Ads, Target Ads, Digital Signage, POS, etc.) should Eappetit decide to terminate the agreement with the restaurant before those Premium services have taken effect. In the case where Premium services have been provided, Eappetit will not issue a refund. If the restaurant opts to terminate the Service, any ongoing charges will be prorated to the end of the Service period.
A. You are solely responsible for the content ("Your Content") provided in the Site, including, but not limited to, Restaurant address, phone number, contact information, business hours, services offered, menu, photos for menu, prices, accepted payment form, or any other content viewable by the Users of the Site and Services. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, truthfulness or reliability, or any disclosure by you of information in Your Content that allows others to identify your Restaurant. You acknowledge and agree that Your Content is your sole responsibility and in no way sponsored or endorsed by Eappetit.
B. Submission of Your Content hereby irrevocably grants us worldwide, perpetual, non-exclusive, royalty-free, sub-licensable and transferable license and rights to use Your Content for any purpose. You irrevocably waive, and cause to be waived, any claims and assertions of moral rights and attribution with respect to Your Content. By “use”, we mean use, copy, display, distribute, modify, translate, reformat, remove, analyze, commercialize, and create simulated works of Your Content.
C. You are the owner of Your Content and we are the owner of User Content and Eappetit Content. You agree and may not modify, reproduce, distribute, reformat, create imitative works, market in whole or in part of User or Eappetit Content without expressed authorization by Eappetit. User and Eappetit Content includes, but not limited to interactive features, visual interfaces, graphics, design, User Content computer code, and software. Unless granted in written form, Eappetit does not grant you expressed or implied right or license to the Services, User Content, Eappetit Content or IP Rights. Eappetit owns the copyrights, trademarks, service marks, trade names and other intellectual and proprietary rights worldwide. Eappetit is protected by copyright, trademark laws and all other applicable intellectual and proprietary rights and laws. Any violation by you may result in the immediate termination of your right to use the Site and Services, in addition to the potential liability for copyright and other IP Rights violation.
D. User Content or Restaurant Content does not necessarily reflect the opinion of Eappetit. We reserve the right to screen, edit, remove or reestablish User Content and Restaurant Content at our sole discretion for any reason or no reason, and without notice to you. We are not obligated to preserve or furnish you with copies of Your Content, nor do we guarantee any confidentiality in consideration of Your Content.
You agree not to, and will not accommodate, support, or enable others to:
A. Violate our Guidelines and Policies;
B. Violate the Terms;
C. Violate any third party’s rights, including, but not limited to, breach of confidence, copyright, trademark, patent, privacy right, trade secret, right of publicity, moral right, or any other intellectual property or proprietary rights;
D. Exploit the Site or Site Content by, but not limited to, the following: adapt, appropriate, modify, reproduce, publish distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or otherwise commercialize any rights to the Services or Our Content;
E. Remove, bypass, impair, damage or intervene with security-related features of the Site, or features that enforce limitations on use of the Site and Services;
F. Harass, harm, stalk, threaten, promote discrimination, or invade another’s privacy;
G. Engage in spams, bulk emails, surveys or other mass messaging which are commercial in nature or not;
H. Access the Site and computer systems, or networks without authorization by means of hacking, mining, or any other means;
I. Distribute computer viruses, worms, codes, files or programs that are of a destructive nature which interrupt, destroy, or limit the functionality of any computer software or computer hardware;
J. Use of any device or software that interferes with the proper feature functionality of the Site and its equipment connected to the Services;
K. Use of automated device, process or means to access or index any portion of the Site or Site Content;
L. Reverse engineer or disassemble any portion of the Site;
M. Extract or alter any trademark, copyright or other proprietary rights that present on the Site or any portion of the Site;
N. Solicit personal information from minors, or harm minors in any way;
O. Record, process or store personal information about other users;
P. Violate any federal, state, or local law or regulation.
You hereby agree that the Site and Services shall be used for lawful purposes only and that you will not violate any applicable laws, regulations and Terms. By using the Site or Services you are also expressly consenting to administrative monitoring at all times. Our System administrators may provide evidence of any violation of laws, regulations, or our Terms during such monitoring to appropriate law enforcement officials. If you do not consent to monitoring, you should exit this system and not use the Site or Services.
12. THIRD PARTIES
The Site may contain links to other websites, services or resources. You are accessing third party websites at your own risk. The third party websites are not under Eappetit’s control, and you acknowledge that Eappetit is not responsible or liable for the content, functions, accuracy, legality, opinions, appropriateness, privacy practices or any other aspect of such websites or resources. The links are provided solely as a convenience to you and the users, not as an endorsement by Eappetit of the content on such third-party sites. You acknowledge and agree that Eappetit shall have no responsibility or liability with third party sites. You should review the applicable terms and policies of third party sites.
You agree to defend, indemnify, and hold Eappetit, its subsidiaries, affiliates, any related companies, and their respective directors, officers, employees, service providers, agents and representatives (collectively, “Eappetit”) harmless from and against any loss, damage, liability, claim, or demand, including costs, liabilities, legal fees and expenses, made by any party arising out of your use of the website, use of Eappetit Services, your violation of the Terms, any products or services purchased or obtained by you in connection with the Site, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Eappetit and you agree to cooperate with our defense of these claims. Eappetit will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
14. RECOMMENDATIONS AND SUGGESTIONS
By sharing with us or sending us ideas, suggestions, or changes, you agree that your contributions do not contain any confidential or proprietary information of third parties but your own; that Eappetit is under no obligation of confidentiality with respect to the suggestion; that Eappetit may already have similar suggestions in development or already in consideration; and that you grant us a non-exclusive, royalty-free, irrevocable, global license to use, modify, publish, distribute and sublicense the suggestion. In addition, you irrevocably waive, and cause to be waived, against Eappetit and its users any claims and assertions, of any nature, contained in such suggestion.
USE OF THE WEBSITE AND EAPPETIT SERVICES ARE ENTIRELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND THAT THE COMPANY AND ITS ENTITIES DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EAPPETIT ENTITIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED SERVICE, SOFTWARE OR ANY CONTENT OF ANY WEBSITES LINKED TO THE WEBSITE. EAPPETIT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGES, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO USE OF OUR WEBSITE AND EAPPETIT SERVICES OR THE SOFTWARE, (3) UNAUTHORIZED ACCESS TO OR USE OF THE COMPANY’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, COMPUTER VIRUSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR [THROUGH THE WEBSITE BY ANY THIRD PARTY, (5) LOSS OF DATA OR CONTENT FROM THE WEBSITE AND SERVICES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE WEBSITE OR THROUGH EAPPETIT SERVICES. ANY MATERIAL OR SERVICES OBTAINED THROUGH THE USE OF THE WEBSITE AND OF THE SERVICES IS DONE AT YOUR DISCRETION AND RISK. EAPPETIT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES OFFERED THROUGH THE WEBSITE OR IN ANY ADVERTISING FORMS. EAPPETIT AND ITS AFFILIATES DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
16. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EAPPETIT OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATIONAL HARM, AND DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR EAPPETIT SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL EAPPETIT’S MAXIMUM AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
YOU EXPRESSLY WAIVE AND RELEASE ALL RIGHTS AND BENEFITS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHCH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.
You or Eappetit may terminate the Agreement at any time, for any reason, by providing a written notice to the other party. Upon termination of the Agreement, your use of Eappetit Services may be limited in features and offerings.
At Eappetit’s sole and absolute discretion, Eappetit may terminate your access to the Website, Your Content, Site Content, and Services for any reason or for no reason, with or without notice to you and without liability to you or any third party.
In the event of termination, each party shall promptly pay any outstanding balance owed to each other prior to the termination of the Agreement. All provisions of the terms shall remain in full force and effect, including our right to use Your Content.
All involved parties shall first attempt to resolve any dispute related to this Term and Agreement in an amicable manner. If there is a disagreement between Eappetit and the Restaurant, Eappetit is under no obligation with respect to the disagreement. The Restaurant, to the fullest extent permitted by law, hereby releases Eappetit and its officers, directors, employees, affiliates, service providers, or agents, and agrees to indemnify each of the foregoing for any losses incurred in connection with any and all claims, demands and damages of every kind, known and unknown, arising out of or in any way related to such disputes and/or Eappetit Services.
If the case Eappetit and the Restaurant are not able to come to an agreeable resolution, a mutually agreed upon mediator will be appointed and mediation shall be conducted under the Commercial Arbitration Rules and Mediation Procedures (effective October 1, 2013 and available online at www.adr.org/commercial). Any unresolved disputes shall be settled by binding arbitration conducted in San Francisco, California utilizing a mutually agreed arbitrator or an arbitration service provider. Both parties shall be entitled in an arbitration to conduct reasonable document production and, as needed, acceptable number of depositions not to exceed 5 per party. The prevailing party shall be entitled to recoup its costs and reasonable legal fees as determined by the arbitrator, which are required to follow the law. YOU ACKNOWLEDGE AND AGREE THAT, BY THE TERMS, YOU WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND EAPPETIT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT A PLAINTIFF OR CLASS MEMBER IN ANY PUPORTED CLASS OR REPRESENTATIVE PROCEEDING.
4620 Fortran Drive, Suite 102
San Jose, CA 95134