Restaurant Agreement
BY CLICKING “I AGREE”, COMPLETING THE DYLISH ONLINE RESTAURANT REGISTRATION PROCESS, OR USING THE SERVICES (DEFINED BELOW) MADE AVAILABLE BY DYLISH LLC (“DYLISH”), THE ENTITY IDENTIFIED AS THE RESTAURANT IN THE ORDER FORM (DEFINED BELOW)(“RESTAURANT”) AGREES TO BE BOUND BY AND BECOME A PARTY TO THIS RESTAURANT AGREEMENT (THIS “AGREEMENT”). This Agreement is incorporated by reference into and governed by that certain Dylish order form signed by both parties or the form(s) completed by Restaurant during the Dylish online Restaurant registration process that identifies the Services ordered by Restaurant (each an “Order Form”). To the extent of any conflict between this Agreement and an Order Form, this Agreement will control, except to the extent the Order Form expressly identifies a provision of this Agreement to be superseded by the Order Form. This Agreement will become effective on the earlier of the date Restaurants accepts this Agreement or first uses the Services (the “Effective Date”). IF RESTAURANT DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, RESTAURANT MUST NOT USE OR ACCESS THE SERVICES. If you are entering into THIS Agreement on behalf of a legal entity, you represent and warrant that you have full authority to bind the Restaurant to this Agreement. IF THE PARTIES HAVE ENTERED INTO A WRITTEN AND PEN-SIGNED AGREEMENT REGARDING THE SUBJECT MATTER HEREOF, THAT AGREEMENT WILL SUPERSEDE THIS AGREEMENT TO THE EXTENT OF ANY CONFLICT.
1. DEFINITIONS.
(a) “Adverse Event” means any negative effects (e.g., symptoms, illness, sickness, injury, harm, or death) experienced by Customers that are associated with the handling and/or consumption of any items in an Order.
(b) “Branded App” means a Restaurant-branded progressive web application set up and hosted by Dylish.
(c) “Branded Customizations” means any source code, object code, operating instructions, and interfaces developed by Dylish, specifically and exclusively to customize Restaurant’s Branded App and/or Branded Website, that does not constitute Pre-Existing IP.
(d) “Branded Website” means a Restaurant-branded website developed by Dylish, which website may be hosted by Dylish if Restaurant chooses to purchase such hosting services, but which such website may instead be hosted by Restaurant or another third party.
(e) “Curbside Pickup” means an Order placed via the Branded App for pickup by the Customer in which Restaurant personnel deliver the order directly to the Customer’s vehicle upon the Customer’s arrival at the Restaurant (e.g., in the parking lot or curbside).
(f) “Customer” means an individual user of the Platform.
(g) “Data” means data collected by or through the Platform, including, without limitation the Personal Data of Customers.
(h) “Menu” means the menu submitted to Dylish by Restaurant, as updated by Restaurant from time to time.
(i) “On-Demand Delivery” means delivery of Orders using Dylish’s Integrated Providers (as defined below), which Restaurants may opt into in connection with their use of the Services.
(j) “Order” means an order for Restaurant’s food and/or beverage items submitted by a Customer via the Branded App.
(k) “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
(l) “Pre-Existing IP” means all source code, object code, operating instructions, interfaces, and other intellectual property developed by Dylish prior to or independent of the provision of Services to Restaurant for or relating to the Platform and/or the Branded App or Branded Website.
(m) “Restaurant Content” means any content submitted by Restaurant to Dylish, including, without limitation, the Menu.
(n) “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
(o) “User” means an employee, contractor, or agent of Restaurant who accesses and uses the Platform via Restaurant’s account.
2. SERVICES.
(a) Access to the Platform. Subject to the terms and conditions of this Agreement, Dylish hereby grants to Restaurant, during the Term (as defined below), a limited, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted hereunder) right to authorize Users to access and use the Platform solely for Restaurant’s internal business purposes. Restaurant will be responsible for all acts or omissions of the Users. Dylish reserves the right to change the availability of any feature or function of or content relating to the Platform, at any time, without notice or liability.
(b) License Grants to Restaurant Content and Restaurant Marks. Subject to the terms of this Agreement, Restaurant hereby grants to Dylish, during the Term, a non-exclusive, worldwide, fully paid-up, royalty-free, sublicensable right and license (i) to use, reproduce, distribute, modify, publicly-display, and publicly-perform the Restaurant Content, in whole or in part, through the Platform and as necessary for Dylish to provide the Services; and(ii) to use, reproduce, and distribute the Restaurant Marks: (1) in connection with the marketing and promotion of the Restaurant; (2) as necessary for Dylish to provide the Services; and (3) in connection with the marketing and promotion of Dylish and the Platform (including, but not limited to, the listing by Dylish of Restaurant as a client of Dylish). All goodwill generated by Dylish’s use of the Restaurant Marks as set forth herein will inure to the benefit of Restaurant.
(c) Restrictions on Use. Restaurant will not (and will not permit any User or other third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform; (iii) resell, distribute, or sublicense the Platform; make the Platform available on a “service bureau” basis, or otherwise allow any third party (other than its Users) to use or access the Platform; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform; (v) use the Platform or the Data in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vi) introduce into the Platform any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vii) provide Restaurant’s login credentials to any third party for their access to Restaurant’s account. Restaurant is expressly prohibited from selling or offering for sale any tobacco or nicotine products including, but not limited to, cigarettes and e-cigarettes.
(d) Equipment. Restaurant may lease through Dylish a tablet computer, stand, wireless printer and/or other equipment (“Equipment”). To the extent included in the Services ordered by Restaurant (as indicated on the Order Form), Dylish will deliver to Restaurant the Equipment. Restaurant will promptly, and in no event more than five (5) business days after delivery, inspect the equipment. In the event Restaurant discovers a defect with the Equipment, Restaurant will notify Dylish of such defect and Dylish will replace the Equipment. If Restaurant fails to provide Dylish with such notice within such five (5) business day period, Restaurant will be deemed to have accepted the Equipment. Restaurant acknowledges and agrees that the Equipment is being leased to Restaurant, at such fees set forth in the Order Form, for use solely in connection with the Platform pursuant to this Agreement. For the avoidance of doubt, Restaurant will not (and will not permit any User or other third party to) use the Equipment for any purpose other than to connect to the Platform. Restaurant will use the Equipment in a careful and proper manner in conformity with their instructions and manuals and all applicable laws. Title to the Equipment will at all times remain in Dylish or its suppliers. Restaurant will have no right, title, or interest in or to the Equipment except the right to possession and use thereof during the Term and pursuant to the conditions in this Agreement. The Equipment will remain personal property, regardless of whether or not they are affixed to any real property at Restaurant’s location. Restaurant will at all times keep the Equipment free and clear from all claims, liens, processes, and any other encumbrance. Restaurant will not sublease, transfer, or dispose of the Equipment. Dylish will have the right to mark the Equipment in a distinct and conspicuous manner with “Property of Dylish” or other appropriate words designated by Dylish. Restaurant will not alter, modify, or remove any such markings or designations and, upon Dylish’s request, Restaurant will affix or re-affix such markings or designations. The Equipment will be located in the Restaurant, and Restaurant will not (and will ensure that no User or other third party does not remove) removed the Equipment from the Restaurant without the prior written consent of Dylish. Restaurant will immediately notify Dylish of any problems with the Equipment and will provide all reasonably requested assistance to Dylish in Dylish’s pursuit of any warranty claims that Dylish may have in relation to them. As between the parties, Dylish will be responsible for all repair and maintenance of the Equipment; provided, however, that Restaurant will be solely responsible for the costs of any repairs and maintenance necessitated by Restaurant our its Users negligence or misuse of them, including theft. Upon the termination or expiration of this Agreement or the applicable Order Form, Restaurant will return the Equipment to Dylishin good working order within thirty (30) days of such expiration or termination in accordance with Dylish’s instructions. If one or more of the items are not returned, or if any of the Equipment is returned damaged, Dylish reserves the right to charge Restaurant’s Payment Method (defined below)such sums equal to the cost of such Equipment. DYLISH MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE EQUIPMENT. The Equipment may be subject to additional terms and conditions, such as from the manufacturer or supplier of the Equipment, and Restaurant will comply with all such additional terms and conditions. DYLISH HAS MADE REASONABLE EFFORTS TO DISPLAY AND DESCRIBE THE EQUIPMENT ACCURATELY VIA THE SERVICES, HOWEVER, THE EQUIPMENT DELIVERED MAY VARY FROM THE IMAGES OR DESCRIPTIONS DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN DYLISH’S CONTROL, INCLUDING, BUT NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF RESTAURANT’S COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF EQUIPMENT. ALTHOUGH DYLISH WILL USE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE EQUIPMENT CONFORMS TO RESTAURANT’S EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL EQUIPMENT IS SUBJECT TO CHANGE WITHOUT NOTICE.
(e) Incorporated Terms. Restaurant’s use of certain Services, including, but not limited to, Google Maps and the On-Demand Delivery option (collectively, the “Third-Party Services”), may be subject to certain 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 will govern with respect to Restaurant’s use of the Third-Party Services.
(i) 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 Dylish of the content on Google Maps. Dylish 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. Google Maps’ Incorporated Terms are found here.
(ii) Integrated Providers. The Dylish On-Demand Delivery service providers (the “Integrated Providers”) are currently Postmates and DoorDash. Postmates’ Incorporated Terms are found here. DoorDash’s Incorporated Terms are found here. If Restaurant has opted into the Dylish On-Demand Delivery option, then the Incorporated Terms of each of the Integrated Providers that serve Restaurant’s region are applicable to Restaurant. Dylish may periodically add new Integrated Providers to its network, and Dylish reserves the right to update the list of Integrated Providers from time to time, with or without notice to Restaurant. Restaurant acknowledges and agrees that by opting in to the Dylish On-Demand Delivery option, all transactions through such Dylish On-Demand Delivery option will be facilitated by Dylish but will ultimately be made directly between Restaurant and the Integrated Providers, and Dylish will not be a party to such transactions. Accordingly, Dylish will have no liability to any party in connection with any transactions between Restaurant and Integrated Providers.
(iii) Swipe Tec / Paybotx. In addition, in order to use the Services, Restaurant will have to have a merchant agreement in place with Swipe Tec LLC (“Swipe Tec”) or Paybotx LLC (“Paybotx”), which such merchant agreement will be deemed Incorporated Terms applicable to Restaurant. In the event of any expiration or termination of Restaurant’s relationship with Swipe Tec or Paybotx, Restaurant may not be able to use any or all of the Services. Restaurant acknowledges and agrees that all transactions through Swipe Tec or Paybotx will be facilitated by Dylish but will ultimately be made directly between Restaurant and Swipe Tec or Paybotx, and Dylish will not be a party to such transactions. Accordingly, Dylish will have no liability to any party in connection with any transactions between Restaurant and Swipe Tec or Paybotx.
(f) Hosting. Dylish will, at its own expense, provide for the hosting of the Branded App, and if Restaurant purchases hosting services for the Branded Website, Dylish will provide for the hosting of the Branded Website for the Fees specified in the applicable Order Form; provided that with respect to the hosting of either or both the Branded App and/or the Branded Website, nothing herein will be construed to require Dylish to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Restaurant or any User to access the Platform.
(g) Channel Partners. Restaurant acknowledges and agrees that if Restaurant has entered into an arrangement with an authorized Dylish channel partner with respect to the Services (such as a reseller) (“Channel Partner”), Dylish may delegate or novate any of its obligations under this Agreement to such Channel Partner (e.g., support services and payment collection), and Dylish will not have any obligation to provide novated services to Restaurant (because the Channel Partner will have such obligation directly to Restaurant). Any nonpayment of applicable Fees (defined below) by Restaurant or by such Channel Partner to Dylish will be a breach of this Agreement.
3. ACCOUNTS.
In order to create Restaurant’s account on the Platform, Restaurant will be required to create a unique sign-in name and password, and provide certain additional information that will assist in authenticating Restaurant when its Users log into the Platform (collectively “Access Credentials”). 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 Access Credentials, as well as for any use, misuse, or communications entered through the Platform via Restaurant’s account. Restaurant will promptly inform Dylish of any unauthorized use of or access to such Access Credentials. Dylish will not be liable for any loss or damage caused by any unauthorized use of or access to Restaurant’s account.
4. PRIVACY.
Dylish’s Privacy Policy (the “Privacy Policy”) is located at https://togo.dylish.com/pages/privacy. The Privacy Policy describes Dylish’s practices regarding the collection, use, and disclosure of Personal Data. During the Term, Dylish will publish to Customers a link to the Privacy Policy in the Branded App a link to the Privacy Policy. During the Term, Restaurant will clearly and conspicuously post on its website a privacy policy that describes Restaurant’s practices regarding the collection, use, and disclosure of Personal Data, which complies with all applicable laws, rules, and regulations.
5. PAYMENT TERMS.
(a) Fees. As consideration for the rights to use the Platform granted in Section 2, Restaurant will pay Dylish its then-current monthly fee (the “Monthly Fee”). Additionally, if Restaurant orders any additional Services, Restaurant will pay Dylish’s then-current add-on fees for such Services (the “Add-On Fees” and collectively with the Monthly Fees, the “Fees”). Dylish may modify the Fees at any time on written notice to Restaurant, and any such modification will go into effect thirty (30) days after such notice. Except as otherwise expressly provided herein all Fees are non-refundable.
(b) Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges (“Taxes”), and Restaurant will be responsible for payment of all such Taxes (other than Taxes based on Dylish’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Platform to Restaurant. Restaurant will make all payments of Fees to Dylish free and clear of, and without reduction for, any withholding Taxes; any such taxes imposed on payments of Fees to Dylish will be Restaurant’s sole responsibility, and Restaurant will provide Dylish with official receipts issued by the appropriate taxing authority, or such other evidence as the Dylish may reasonably request, to establish that such Taxes have been paid.
(c) Payments to Dylish. Restaurant hereby authorized Dylish to charge Restaurant’s credit card, bank account, or other approved facility provided during the registration process (“Payment Method”) for the full payment of the Fees and Taxes. All payments will be charged and made in U.S. dollars. Monthly Fees will be billed upfront on a monthly basis starting on the date of installation. Add-On Fees will be charged upon execution of the applicable Order Form. Within thirty (30) days after termination or expiration of this Agreement, Dylish reserves the right to charge Restaurant’s Payment Method for any outstanding Fees and Taxes.
(d) Payments to Restaurant. Swipe Tec, Paybotx, or Dylish (as applicable) will be responsible for remitting to Restaurant amounts for all executed Orders placed by Customers. Swipe Tec, Paybotx, or Dylish (as applicable) currently use and reserve the right to continue using third party payment processors (each a “Payment Processor”). Currently, Swipe Tec, Paybotx, or Dylish (as applicable) use Total System Services, LLC, Fiserv Inc., Global Payments, and Global Electronic Technology as its Payment Processors to collect credit card payments in connection with Orders.
(e) Processor Agreements. Restaurant must agree to be bound by and comply with the applicable Payment Processor terms of service (the “Processor Agreement”). Please note that Dylish is not a party to the Processor Agreements and that Dylish has no obligations or liability to Restaurant under the Processor Agreements. The amounts remitted to Customer for all executed Orders placed by Customers will be less (i) any allowances actually made or taken for Order refunds; (ii) a processing fee per Order as charged by Swipe Tec or Paybotx; and (iii) any additional transaction charges charged by the applicable Payment Processor. In addition, the Integrated Providers will bill Restaurant directly for any third-party delivery charges for such Orders. To the extent Order refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes Dylish and/or the applicable Payment Processor to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such Order refunds on a daily basis. To the extent the terms set forth in this Section 5(e)conflict with the terms contained in Processor Agreements, the terms of this Section 5(e)will prevail. Except as otherwise provided herein, Dylish will assume any consumer chargebacks, and such sums will not be deducted from the amounts owed to Restaurant under this 5(f). Notwithstanding the foregoing, Dylish reserves the right to investigate chargebacks, and Restaurant agrees to provide information requested by Dylish in connection therewith. In the event Dylish determines, in its sole (but reasonable) discretion, that any chargeback (or series of chargebacks) is the result of, or arose in connection with, any fraudulent or illegal activity on the part of Restaurant and/or a Customer, Dylish will notify Restaurant, and Restaurant will, and hereby does, authorize Dylish and/or Payment Processor to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such fraudulent or illegal chargeback. Further, Dylish will not, under any circumstances, assume any chargeback issued to a consumer who is an employee, owner, or affiliate of the applicable Restaurant in dispute. If Restaurant’s Processor Agreement or its use of applicable Payment Processor’s services is terminated by the Payment Processor, Restaurant may not be able to use certain portions of the Services. RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT DYLISH IS NOT AND WILL NOT BE LIABLE FOR ANY SUMS THAT ANY PAYMENT PROCESSOR FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE WILL BE DIRECTLY AGAINST THE APPLICABLE PAYMENT PROCESSOR. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES DYLISH FROM ANY AND ALL CLAIMS ARISING OUT OF A PAYMENT PROCESSOR’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
(f) Maximum Order Amount. Dylish enforces a maximum dollar amount of $1,500.00 per Order (the “Maximum Order Amount”) and will not accept Orders in excess of the Maximum Order Amount. Dylish reserves the right to modify such Maximum Order Amount at any time without notice.
(g) Curbside Pickup. If Restaurant opts-in to Curbside Pickup at one or more of its locations, the Restaurant agrees that its personnel will promptly deliver orders to the Customer’s vehicle when the Customer arrives at the Restaurant (e.g., in the parking lot or curbside). Restaurant will use the features within the Platform that permits Restaurant to communicate with Customers to determine when they have arrived and where their vehicle is located.
(h) Taxes on Orders. In connection with all Orders, Restaurant represents, warrants, and covenants to Dylish that Restaurant will: (i) ensure that the tax rates set forth in Restaurant’s Platform 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 Taxes related to all Orders and the processing of such Orders for Customers (excluding any Taxes imposed or based on Dylish’s income).
(i) Month to Month. Restaurant’s subscription period will automatically renew on a month to month basis unless Restaurant provides Dylish with written notice of its desire to cancel.
(j) PCI Compliance. Dylish is responsible for the security of cardholder data received from Restaurant and/or Customers, including, without limitation, when Dylish uses third-party payment processors to process Orders. To the extent that Dylish stores, processes, or transmits cardholder data, Dylish will comply with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other applicable laws, rules, and regulations.
6. TERM, TERMINATION, AND SUSPENSION.
(a) Term. This Agreement will commence on the Effective Date and continue until terminated by either party in accordance with this Agreement (the “Term”).
(b) Termination. 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. Dylish 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, Dylish may terminate this Agreement immediately, upon notice to Restaurant, if Dylish determines in its sole, reasonable discretion, that Restaurant has acted in a manner that disparages Dylish, or if Dylish 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.
(c) Suspension. Dylish may suspend access to the Platform or remove some or all Restaurant Content in Dylish’s sole discretion, if Dylish reasonably believes that Restaurant, its Customers, or any third party is engaged in: (i) any activity that may harm Dylish, its systems, or any third-party systems; or (ii) fraudulent or illegal activity or any other activity that could result in legal liability to Dylish or any third party. Further, Dylish may suspend access to the Platform if Restaurant fails to make a payment on time until all overdue amounts are paid.
(d) Effect of Termination. Upon any expiration or termination of this Agreement: (i) Restaurant will be paid any amounts payable under Sections 5(d) and (e); (ii) Dylish will charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 5(c) and any other amounts due under this Agreement; and (iii) 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 Equipment as set forth in Section 2(d).
(e) Survival. The following provisions will survive any expiration termination of this Agreement: Sections 1, 2(c), 2(d), 2(e), 4, 5, 6(d), 6(e), 7, 8, 9, 10 and 12.
7. OWNERSHIP.
(a) Intellectual Property. As between the parties, Dylish owns all right, title, and interest in and to the Platform, the Branded App and Branded Website (each including all Pre-Existing IP, but each excluding Branded Customizations), the graphic design and ad campaign templates (excluding any Restaurant Intellectual Property (defined below)), together with all modifications, enhancements, improvements, and derivative works thereto, including all intellectual property rights therein (the “Dylish Intellectual Property”). Restaurant will have no rights with respect to the Dylish Intellectual Property other than those expressly granted hereunder. As between the parties, Restaurant owns and will own all right, title, and interest in and to the Restaurant Content, the Branded Customizations, and the Restaurant Marks, including all intellectual property rights therein (the “Restaurant Intellectual Property”). Dylish will have no rights with respect to the Restaurant Intellectual Property other than those expressly granted hereunder. All rights not expressly granted hereunder by a party are reserved by that party.
(b) Feedback. Restaurant hereby grants to Dylish a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Restaurant, including Users, relating to the Services. Dylish will not identify Restaurant as the source of any such feedback.
(c) Data. All Data will be jointly owned by Dylish and Restaurant and may be used and disclosed 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 regulation and such party’s privacy policy. Notwithstanding the foregoing, each party hereby represents, warrants, and covenants that it will not sell, license, or commercialize the Data, in any respects, in whole or in part.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
(a) 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 perform its obligations hereunder, and to grant the licenses granted hereunder; (ii) it will 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, 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.
(b) Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 8.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform will be the same prices (or lower) that it charges customers not using the Platform; (ii) it will periodically update the prices on the Platform to ensure that it is in compliance with the foregoing representation; (iii) it will timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders will be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders that are scheduled to be delivered to a Customer by a third-party delivery service or by Curbside Pickup, Restaurant will package the Order appropriately for delivery or pickup (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order is available for pickup upon the third-party delivery service’s arrival or upon the Customer’s arrival (for Curbside Pickup); (v) except to the extent permitted by applicable law and the Integrated Providers’ policies, if it has signed up for On-Demand Delivery, it will not offer alcohol on its Menu and if it attempts to do so in violation any such law or policy, Dylish 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 that includes alcohol, Restaurant will 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 Dylish’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; (viii) Restaurant has acquired all third-party consents, permissions, and licenses which are necessary in connection with Dylish’s use of the Restaurant Content and the Restaurant Marks and/or Dylish’s exercise of any license granted hereunder, and Dylish will not be obligated to pay any fees in connection therewith; and (ix) Restaurant will not accept Orders in excess of the Maximum Order Amount. 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, the Menu or the Restaurant’s hours, address, pricing, and promotions. Dylish is not responsible for any Restaurant Content.
(c) Disclaimer. DYLISH DOES NOT GUARANTEE THAT THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED, OR ERROR FREE, OR THAT EVERY ERROR IN THE SERVICES WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, THE SERVICES AND ANY OTHER MATERIALS PROVIDED BY DYLISH HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. DYLISH MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE RESTAURANT MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS8.1 AND 8.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APP, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, 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.ALL SERVICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE SERVICES MAY NOT BE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A SERVICE DOES NOT IMPLY THAT SUCH SERVICE IS OR WILL BE AVAILABLE IN RESTAURANT’S LOCATION. ORDERS MAY BE DELIVERED BY THIRD-PARTY DELIVERY SERVICES THAT ARE PARTNERED WITH DYLISH (E.G., INTEGRATED PROVIDERS)AND/OR BY NON-AFFILIATED THIRD-PARTY DELIVERY SERVICES (“UNAFFILIATED DELIVERY SERVICES”). DYLISH 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.
9. 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 OR LOST DATA) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED 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 FEES PAID TO DYLISH HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL 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 EQUIPMENT; OR (D) RESTAURANT’S BREACH OF SECTION 2(C); (II) DYLISH’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL SERVICES WILL NOT EXCEED THE ADD-ON FEES ACTUALLY PAID TO DYLISH UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF DYLISH AND ITS INTEGRATED PROVIDERS FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
10. INDEMNIFICATION.
Each party will indemnify, defend, and hold harmless the other party and its officers, directors, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, penalties, and all related costs and expenses (including, without limitation, reasonable attorneys’ fees) (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 will indemnify, defend, and hold harmless the Dylish Indemnified Parties from and against any and all Losses incurred by such Dylish 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; (ii) Restaurant’s failure to include the accurate, complete, and up-to-date tax rates on the dashboard or pay all applicable Taxes relating to all Orders and the processing of such Orders; (ii) an Adverse Event; or (iii) the processing of Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
11. PUBLICITY.
Upon the reasonable request of Dylish, the parties will 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 will be mutually determined by the parties.
12. MISCELLANEOUS.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Neither party will 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 will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its principles of conflicts of laws. Any dispute between the parties arising out of or otherwise relating to this Agreement will be brought, maintained, adjudicated exclusively in an arbitration in Los Angeles, California administered by JAMS pursuant to its then-current Comprehensive Arbitration Rules 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, Dylish may bring an action for injunctive relief in any court of competent jurisdiction. Both parties agree that this Agreement, the Incorporated Terms, and any additional terms incorporated herein by reference represents the complete and exclusive agreement 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., a click-through modification); provided, however, that Dylish may modify this Agreement at any time by posting such modification on Restaurant’s individual account in Restaurant’s account dashboard, and any such modification will go into effect at the beginning of Restaurant’s subscription period following thirty (30) days after it is so posted. If Restaurant does not agree to such modifications, it may terminate this Agreement by providing Dylish with thirty (30) days’ prior written notice, which will be effective as of the end of the then-current subscription period following such thirty (30) day period. 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.