Franchisee ezCater
Agreement
This Franchisee ezCater Agreement (this “Agreement”) governs your access to
the Covered Services (defined below) provided by ezCater,
Inc. (“ezCater”, “we”, “our” or “us”). By clicking “I agree” and sending your info
to us, you agree to be bound by the terms and conditions of this Agreement.
1. Nature of Agreement; Covered Services.
You own and
operate one or more franchised The Halal Guys Restaurants (“Franchised
Restaurants” and, together with all other The Halal Guys Restaurants, sometimes
collectively referred to herein as the “Locations”). We offer various services that help
restaurant and catering locations grow and manage their catering and associated
business. These services include the ezCater Marketplace (the “Marketplace”), ezOrdering, Direct Entry, and ezDispatch,
each of which is described more fully on the exhibits to this Agreement. You want to use, and we want to provide you
in accordance with the terms of this Agreement, the services indicated on Exhibit
A (the “Covered Services”) at the US based restaurant and catering
locations you and we agree upon. You
agree we may contract with third parties to assist with, or to perform, certain
Covered Services, provided we are responsible for their compliance with the
relevant obligations of this Agreement.
Specifically, you
seek to engage ezCater to perform the Covered
Services described herein for your Franchised Restaurants. Pursuant to a Master Services Agreement
between us and The Halal Guys Franchise, Inc., which is the franchisor of The
Halal Guys system (the “Franchisor”), while you are operating your Franchised
Restaurants you may participate in the Covered Services pursuant to the terms
and conditions of this Agreement as long as you are an “Eligible Franchisee,”
meaning that you: (1) are in compliance with your franchise agreement with the
Franchisor (as determined by the Franchisor in its sole discretion); and (2)
this Agreement remains in effect. For
the avoidance of doubt, you are an independently owned and operated business,
and responsible for your own payment obligations. As such, you acknowledge that neither
Franchisor nor any of Franchisor’s affiliates, owners, officers, directors,
managers, etc. shall have any liability whatsoever for any claims, liabilities,
damages, etc. arising from your use of the Covered Services made available
under this Agreement. You acknowledge and agree that we may provide Franchisor
real-time access through our internet portal, ezManage,
to view which The Halal Guys franchisees and which Franchised Restaurants are
live on the ezCater portal at any time.
2. Compensation.
In consideration
for the services we provide to you, you agree to pay us the fees set forth on Exhibit
A (the “Fees”).
3. Proprietary Rights.
(a) ezManage Software and Other Technology. During the Term, we grant to you a
limited, non-exclusive, non-transferable (subject to Section 9(g) below),
non-sublicensable, license to access and use the ezManage
software and other technology included with the Covered Services (collectively,
the “Technology”) solely for your internal use to grow and manage your catering
business. You will not: (i) copy, modify, or
create derivative works of the Technology; (ii) reverse engineer, disassemble
or attempt to reconstruct, identify or discover any source code,
underlying ideas, user interface techniques, or algorithms of the Technology;
or (iii) attempt to circumvent any use restrictions built into the
Technology. Except for the limited license granted here, we retain all
right, title and interest, including all intellectual property rights, in and
to the Technology and all related modifications, improvements and derivative
works thereof.
(b) Your Content. During the Term, you grant to us a
limited, non-exclusive, non-transferable (subject to Section 9(g) below),
non-sublicensable, license to use the restaurant, business, and catering
information you provide us under Exhibit C, including your name, logos,
descriptions, menus, pricing and images (collectively, “Your Content”) solely
as reasonably necessary to provide the Covered Services. This includes that we
may use Your Content to promote you on the Marketplace and your ezOrdering pages, if applicable, and to otherwise market
you to drive customers to your Marketplace and/or ezOrdering
pages. Except for the limited license
granted here, you retain (or Franchisor retains, where applicable) all right,
title and interest, including all intellectual property rights, in and to Your
Content.
4. Termination and Survival.
This Agreement begins on the date
you click “I agree” and sending your info to us and continues until terminated
by either you or us (the “Term”). Either
you or we may terminate this Agreement:
(a) upon 30 days written notice, for any or no reason;
(b) upon 10 days written notice, if
the other party breaches this Agreement and fails to cure the breach within the
notice period;
(c) immediately,
if the other party: (i) becomes insolvent, files a
petition in bankruptcy, makes an assignment for the benefit of its creditors, or has a UCC lien filed against all or a
portion of its assets, or (ii) commits or otherwise becomes associated with,
for any reason, any act that would reasonably be expected to have an adverse
impact on the reputation or public image of the terminating party. Alternatively, either of us may immediately
suspend services rather than terminate this Agreement in the event of clause (i) or (ii).
In addition, if you cease to
possess rights as an Eligible Franchisee with respect to one or more of your
Franchised Restaurants, this Agreement will automatically terminate with
respect to those Franchised Restaurants when we notify you in writing that we
have learned that such rights have been lost.
Sections 4 – 9 will survive any
termination of this Agreement. In addition, your obligation to pay outstanding
Fees or other amounts due to us as of the termination of this Agreement, and
our obligation to remit payments to you for orders fulfilled prior to
termination, survive the termination of this Agreement.
5. Confidentiality.
In connection with this
Agreement, each party may receive from the other party confidential or other
proprietary information of the other party (“Confidential Information”). Except as expressly allowed in this
Agreement, each party will hold the Confidential Information of the other party
in confidence and will not use it for any purpose other than to perform its
obligations under this Agreement or disclose it to any third party (other than
its employees, affiliates, third party contractors, advisors and agents who
have a need to know and a duty to the receiving party to protect the
confidentiality of such information).
Each party agrees that any Confidential Information received or obtained
from the other party will be the exclusive property of the disclosing
party. If disclosure of the other
party’s Confidential Information is required by law, the party required to
disclose Confidential Information will cooperate with the other party (at the
other party’s request and expense) so that the other party may seek to preserve
the confidentiality of the Confidential Information. Notwithstanding the foregoing, Confidential
Information does not include any information the receiving party receives from
the other party if the information: (a)
is or becomes generally available or publicly known other than by breach of
this Agreement; (b) was previously known by the receiving party without obligation
to keep it confidential; (c) is received by the receiving party in good faith
from a third party lawfully in possession of it without obligation to the other
party to keep the information confidential; or (d) was independently developed
by the receiving party without use of any Confidential Information of the other
party.
In addition, the prohibition on
either party’s disclosure of Confidential Information shall not apply to the
extent it relates to either of the parties sharing certain sales and other
related metrics and data with Franchisor.
You agree that we may share with Franchisor all information we obtain
regarding your use of he Covered Services.
6. Representations
and Warranties; Disclaimer.
Each party represents and warrants to
the other that this is a valid and binding Agreement of the party and that
nothing in it will place the party in breach of any other agreement. Each party
also represents and warrants to the other that it will at all times comply with
all applicable federal, state and local laws, rules, ordinances, regulations
and codes, including, in your case, all laws and regulations relating to the
preparation, sale, and delivery of food and drink, and including (but not
limited to), in our case, all applicable laws, rules, standards and regulations
relating to data protection, data privacy and payment card industry (PCI)
standards.
By accepting this Agreement, you
represent to us that (a) you are authorized to accept this Agreement on behalf
of the applicable Franchised Restaurant and (b) you are in compliance with your
franchise agreement with Franchisor.
In addition, we represent and warrant to
you that the Technology, and your authorized use of the same in connection with
the Covered Services, does not violate or infringe any right (including but not
limited to intellectual property rights) of any third party, and you warrant to
us that Your Content, and our authorized use of same in connection with the
Covered Services, does not violate or infringe any right (including but not
limited to intellectual property rights) of any third party. To the extent you grant us the right to use
the trademarks, trade names, service marks, copyrights, logos, slogans and
other identifying symbols and indicia (“Marks”) associated with your Franchised
Restaurant(s) in connection with this Agreement, we shall use same for the sole
purpose of fulfilling our obligations and otherwise performing the Covered
Services as provided under this Agreement. Use of your Marks shall only be in a
manner that complies in all material respects with your trademark usage
policies and the Franchisor’s trademark usage policies provided to us from time
to time. Our use of your Marks, and all goodwill generated thereby, will inure
to the owner of such Marks. We represent and warrant to you that ezCater owns all right, title, and interest in, or
otherwise has full right and authority to permit you to use the Marketplace and
all other Covered Services.
We represent and warrant to you that we
will provide the Covered Services in a professional and workmanlike manner and
in accordance with all reasonable professional standards for such services.
EXCEPT
AS EXPRESSLY SET FORTH HEREIN, WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE
DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL
WORK WITHOUT INTERRUPTIONS.
7. Indemnification and Insurance.
(a)
Indemnification. Each party shall
defend, indemnify and hold harmless, at its expense, the other party (and its
respective affiliates, officers, directors, employees, stockholders,
representatives and agents) from and against any third-party claim arising from
or relating to: (i) any breach by the indemnifying
party of this Agreement, including the representations and warranties herein,
(ii) any willful misconduct or negligent act or omission by the indemnifying
party, its employees or its contractors, or (iii) any alleged bodily injury
(including death) or damage to tangible or real property to the extent caused
by such party’s employees or contractors, including (but not limited to) in
your case any claim relating to your preparation or handling of food, beverages
or order delivery, and including (but not limited to) in our case any claim
relating to the delivery services of an ezDispatch
driver (including without limitation such ezDispatch
driver’s handling of food, beverages or order delivery once it has left your or
your restaurant’s custody, and/or such ezDispatch
driver’s driving and/or vehicle). The indemnified party shall promptly notify
the indemnifying party of any third-party claim; however, notice will not be a
condition to the indemnifying party’s indemnification obligations unless the
indemnifying party has been materially and adversely affected by the failure or
delay. The indemnifying party will have the right to control the defense and
settlement of any third-party claim so long as it is actively defending the
claim, but it may not settle any claim
subject to indemnification without the prior written consent of the other
party, which will not be unreasonably withheld. Further, the party to be
indemnified may, at its expense, participate in the defense and settlement of
the claim. The indemnified party may also
control the defense and settlement of any third-party claim that the
indemnifying party is not actively defending.
(b) Insurance. Each party agrees that during
the term of this Agreement and for a period of three years thereafter, it will
maintain: commercial general liability coverage with a limit of not less than
$1,000,000 for each claim and $2,000,000 annual aggregate. In addition, ezCater
agrees to maintain Commercial Automobile Liability Insurance policy, inclusive
of owned, hired, and non-owned coverage as applicable, covering itself
(regardless of whether the vehicles driven are owned by ezCater,
or a third party, including ezDispatch drivers), with
limits of coverage not less than One Million Dollars ($1,000,000) per
occurrence and annual aggregate. Certificates of insurance evidencing such
coverages shall be provided upon written request. Each party shall add the
other as an additional insured on a primary & non-contributory basis to its
insurance policies set forth above.
8. Limitation of Liability.
EXCEPT for amounts payable UNDER SECTION 7 (INDEMNIFICATION)
AND CLAIMS ARISING FROM A BREACH OF
SECTION 5 (CONFIDENTIALITY), NEITHer party WILL be liable for (i) indirect,
incidental, special, consequential or punitive damages or any loss of revenue,
profits, or data, arising in connection with this Agreement, even if THE party
has been advised of the possibility of THOSE damages, AND (II) EACH PARTY’S
MAXIMUM AGGREGATE LIABILITIES IN CONNECTION WITH OR RELATED TO THIS aGREEMENT
SHALL NOT EXCEED THE GREATER OF (1) $50,000 OR THE TOTAL fees paid or payable
to us under this agreement during the THREE (3) month period IMMEDIATELY
PRECEDING THE DATE the claim is brought.
9.
General.
(a)
Publicity. Except
as otherwise permitted in Section 3(b), we agree that we shall not, without
your written consent in each instance: (a) use in advertising, publicity or
marketing your or the Franchisor’s name/brand, domain names, or Marks,
including without limitation any abbreviation or contraction thereof, owned by
or referring to you or the Franchisor or its affiliates; or (b) represent,
directly or indirectly, that any product or service offered by us has been
approved by or endorsed by you or the Franchisor or its affiliates.
(b) Notices. Any notice under this Agreement must be given
in writing (including by email), and may be delivered:
via email (if done with return confirmation of receipt), via nationally
recognized overnight express courier (signature required), or registered or
certified mail with postage prepaid and return receipt requested. ezCater’s notice
address is 40 Water Street, Fifth Floor, Boston, MA 02109, and you notice
address is the address you provided on the sign-up page (or such other address a
party provides by written notice). Our
General Counsel shall be copied on any legal notices sent to us. All notices will be effective upon receipt.
(c)
Relationship of the Parties. You and we are independent contractors, and no agency, partnership,
joint venture, employee-employer or franchisor-franchisee relationship is
intended or created by this Agreement.
Each party and its personnel will not be treated as or considered an
employee of the other party for any purpose, including but not limited to the
other party's employee benefits, unemployment taxes, Federal tax purposes, the
Federal Insurance Contribution Act, or income tax withholding at the source.
Each party specifically acknowledges and agrees that the other party has no
actual, implied or apparent authority to act as an agent or employee of such
party; to enter into any contractual commitments on behalf of such party; or to
incur any obligations, debt or liability for such party.
(d) Governing Law. This Agreement will be
governed by the laws of the State of Delaware, without regard to its conflict
of law principles. Any claims or legal
actions by you or us will take place in any state or federal court in
Wilmington, Delaware, and each party hereby consents to the exclusive personal
jurisdiction of such courts.
(e) Amendments and Waivers. This Agreement may be amended
only by our mutual written consent. Either party can waive any default or
breach of the other party, but any such waiver will not constitute a waiver of
any subsequent default or breach.
(f) Force Majeure. Neither party will be liable for any failure
or delay in its performance under this Agreement due to any cause beyond its
reasonable control, including acts of war, acts of God or public enemy,
earthquake, flood, fire, embargo, riot, sabotage, governmental act, or labor
dispute or failure of third party power or telecommunications networks,
provided: (a) such failure or delay is not resulting from the actions or
omissions of the party; (b) such failure or delay could not have been prevented
by reasonable precautions and cannot reasonably be circumvented by the delayed
party’s use of reasonable alternate sources, work-around plans or other means;
and (c) that the delayed party gives the other party prompt notice of such
cause and uses its reasonable commercial efforts to promptly correct such
failure or delay in performance.
(g) Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the parties and their permitted successors and
assigns. Neither party may assign this Agreement
to any third party without the other party’s prior written consent, which will
not be unreasonably withheld, except that, upon written notice to the other
party, either party may assign without consent to an affiliate or any successor
entity in a merger, acquisition, consolidation, business combination or sale of
all or substantially all of its assets or business to which this Agreement
relates. Any purported assignment,
transfer, or delegation in violation of this provision will be null and void.
(h) Entire Agreement. This Agreement, including its
exhibits, constitutes the entire agreement between you and us, and supersedes
any prior verbal or written agreements, regarding the subject matter hereof.
The invalidity, illegality or unenforceability of any term of this Agreement
will not affect the validity, legality or enforceability of any other
term. If a term is determined to be
invalid or unenforceable, the parties agree to replace the term with a term that
is valid and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term, and this Agreement shall be enforceable as
so modified.
EXHIBIT A
Covered
Services
Services you will use (check all that apply):
S Marketplace - Allows you to grow and manage your catering business
through our suite of marketing, promotional and catering management solutions.
S ezOrdering - Allows you to offer visitors to your own website(s)
(including your Facebook page(s) and any other legitimate online presence) the
ability to place orders for your catering and to receive associated marketing
that we provide to help grow your catering business.
S Direct Entry - Allows you to manually enter into the ezManage system your catering orders received from channels
outside the Marketplace and ezOrdering (such as phone
or walk-in).
S ezDispatch
- Allows you to utilize a network of
delivery service providers we have set up to deliver orders you have received
through the Marketplace, ezOrdering, and Direct Entry.
See Exhibits
B-D for more
detailed descriptions and your and our additional rights and responsibilities
for each Covered Service.
Fees for
each order placed with you through the applicable Covered Service:
|
Service |
Fee on Commission Basis |
Fee on Credit Card Basis |
Other Fees |
|
Marketplace (non-ringfenced
customer) |
12% introductory rate first
90 days of adoption. 15% thereafter. |
2.75% |
Depends on your opt-in
participation in marketing programs |
|
Marketplace (ringfenced
customer) |
Introductory rate of 0% for
first 90 days of adoption. 7% thereafter. |
2.75% |
Depends on your opt-in
participation in marketing programs |
|
ezOrdering |
Introductory rate of 0% for
first 90 days of adoption. 7% thereafter. |
2.75% |
N/A |
|
Direct Entry |
0% |
2.75% |
N/A |
|
ezDispatch |
N/A |
N/A |
$30 when Commission Basis
is under $300; 10% of Commission Basis when Commission Basis is equal to or
greater than $300. |
“Commission
Basis” means the total amount a customer pays for an order they place with you
through the service, but excluding any voluntary tip and taxes, or any fee
added by ezCater to the order amount the customer
pays, provided such fee is not requested or approved by you or otherwise
required by law (it being understood and agreed that any delivery fee we charge
to a customer is approved by you). We represent that we currently calculate the
Commission Basis for all ezCater customers to include
the delivery fee; however, in the event that we ever agree to exclude the
delivery fee from the Commission Basis for the majority of our ezCater customers in the future, we agree to advise you of
same and to similarly exclude this fee from our calculation of the Commission
Basis for you.
“Credit
Card Basis” means the total amount a customer pays for an order they place with
you through the service, excluding any voluntary tip.
A
customer is "ringfenced" to you, Franchisor, and/or other Eligible
Franchisees if they first created an ezCater account
from an ezOrdering link attributed to you, Franchisor
and/or other Eligible Franchisees (even if they did not place an order at that
time). If you own locations of more than
one brand, the customer is ringfenced only to your locations that are of the
brand they linked from when they created the ezCater
account. Therefore, the reduced
ringfence commission will apply only on Marketplace orders the customer places
with that brand.
EXHIBIT B
Service
Descriptions and Our Rights and Responsibilities
|
Service* |
Marketplace |
ezOrdering |
Direct Entry |
|
Orders and Promotion |
· We will display certain of Your Information on ezCater’s Marketplace website(s) and mobile app(s) for
view by visitors who search within the then current territory of your Locations, and enable such Marketplace customers to place
orders through those website(s) and app(s). At a minimum, with regard to each
such Location, we will display its name, logo, and/or photographs, and a menu
of all products offered for take-out or delivery orders at each such Location
unless we make a platform change to no longer display any such information. · We may promote your Marketplace presence in other
ways, including online channels such as Google, Bing and email, and offline
channels and campaigns. · We may offer you the opportunity to participate in
opt-in marketing programs from time-to-time.
These programs may make you more attractive to customers and/or modify
your placement in the Marketplace.
There may be costs and other requirements for participation in these
programs, which will be spelled out when such offers are made. |
· We will provide you an ezOrdering
link to place on your webpage(s), app(s), other online location(s), and in
your promotional material(s).
Customers who click on a live ezOrdering
link will be directed to an ezOrdering page we will
host and create for you and may place orders through that page. · We will promptly transmit notice of each Order to
each particular Location for which the Order is placed after it is placed. · We may promote your ezOrdering
capability in various ways, including online channels such as Google, Bing,
and email, and offline channels and campaigns. |
· We may promote your ezOrdering
capability (if you use it) in various ways, including online channels such as
Google, Bing, and email, and offline channels and campaigns, using the name
and contact information of any customer you enter using Direct Entry |
|
Customer Service |
· We will address all Marketplace order questions,
changes and issues. |
· Same as Marketplace. |
· N/A |
|
ezManage Software |
· We will grant you a license to the ezManage catering management software, which (among other
things) allows you to view and track Marketplace orders. |
· We will grant you a license to the ezOrdering online order capture software, which (among
other things) allows you to capture orders on your own website(s), and view
and track those orders. |
· We will grant you a license to the ezManage direct entry software, which (among other
things) allows you to input, track and manage orders you enter from channels
outside the Marketplace and ezOrdering. |
|
Collection and Payments |
· We will collect payments from the customer, and pay
you by electronic funds transfer at least twice/month the total amount paid
for Marketplace orders you have fulfilled, less the Marketplace Fees outlined
on Exhibit A. · The first payment each month will cover orders
delivered in the first 15 days of the month.
The second will cover orders delivered from the 16th day
through the end of the month. We send payment within seven days of the end of
each half-month period. If any orders are in dispute, we may withhold payment
on those orders, and we will resolve the dispute as quickly as possible. · This payment schedule may change, at our discretion,
but you will never be paid less frequently than twice monthly. · We will bear any loss associated with fraudulent
transaction claims relating to your Marketplace orders. |
· Same as Marketplace except that we will deduct the ezOrdering Fees outlined on Exhibit A rather than
the Marketplace Fees. |
· Same as Marketplace when customer pays by credit
card, except that we will deduct the Direct Entry Fees outlined on Exhibit
A rather than the Marketplace Fees. |
|
Data Sharing |
· We will provide you the information needed to
fulfill and deliver the order for all Marketplace orders. · For Marketplace orders placed by your ringfenced
customers, we also will provide you the customer name and contact information
we receive to the extent permitted by applicable Federal and state law. You may use this information to market to
and otherwise contact these customers in accordance with applicable law and
your privacy policy. |
· Same as Marketplace except that we will also provide
you the customer name and contact information we receive for all of your ezOrdering orders, whether the customer is ringfenced to
you or not, to the extent permitted by applicable Federal and state law. |
· N/A |
*See Exhibit D for ezDispatch service description and your and our additional rights and responsibilities if you use this
service.
EXHIBIT C
Your
Rights and Responsibilities
|
Service* |
Marketplace |
ezOrdering |
Direct Entry |
|
Your Content |
· You will provide us your location name(s),
address(es), logo(s), description(s), catering menus, prices, images,
delivery and service fees, store and driver personnel contact information,
and any other agreed upon information so we can promote you and facilitate
your orders. · You agree to promptly contact us when your menus,
prices or delivery or service fees change so we can keep them up to date in
the Marketplace. · You agree that the prices and fees you provide us
for a given location to display in the Marketplace will match the lowest
prices and fees you offer customers for that location, whether that be
in-store, over the phone or through any other website or online channel. |
· Same as Marketplace |
· N/A |
|
Order Acceptance/
Rejection |
· You agree to endeavor to accept or reject orders
received during your normal business hours within 15 minutes of receipt. · If an order is received outside your normal business
hours, you will endeavor to accept or reject the order within 15 minutes
after the start of your normal business hours the following day. |
· Same as Marketplace |
· N/A |
|
Customer Service |
· If a Marketplace customer contacts you with an order
question, change or issue, you will direct them to us to address their issue.
· You agree to work with us to address any customer
service issues we cannot address on our own.
|
· Same as Marketplace |
· You are responsible for all customer service and
order processing, including any promotions or discounts you wish to offer. |
|
Food Preparation |
· You agree to prepare orders in accordance with the
order details and instructions we provide. |
· Same as Marketplace |
· N/A |
|
Food Delivery/Pickup |
· Both your and our reputations depend on timeliness.
For delivery orders that do not utilize ezDispatch,
you agree to deliver (or have delivered) food orders no more than 15 minutes
before or 5 minutes after the delivery time.
For takeout orders, pickup orders, and orders that use ezDispatch, you agree to have the food ready for pickup
no more than 15 minutes before or 5 minutes after the pickup time. |
· Same as Marketplace |
· N/A |
|
Taxes |
· We collect taxes according to your instructions and
then forward those to you in the payments we make to you. You are responsible
for remitting all taxes correctly to all appropriate agencies. As laws and
practices regarding tax remittance change, you agree that this tax remittance
procedure can be modified such that you and we come into compliance with any
new laws or practices. |
· Same as Marketplace |
· Same as Marketplace |
|
Data Sharing |
· N/A |
· During the Term of this Agreement, we will provide
you with direct, real-time, electronic access to the following information
for each Order accepted via ezOrdering, with
respect to each restaurant operated by
you and each restaurant operated by your Eligible Franchisees, on a
restaurant-by-restaurant as well as aggregate basis: order size, order
details, ezCater fees, tax, store details
(location), guest rating / feedback, products offered and pricing by
restaurant location, the number of orders picked up by couriers, the number
of refunds given to customers, transaction dates, standard sales price, and
gross sales. We will also consider in
good faith requests you may make for additional information. In addition, you may obtain detailed
statements of semi-monthly activity in the ezOrdering
portal. If for some reason we are
unable to provide you access such information via the ezOrdering
portal, we will use commercially reasonable efforts to provide you access to
such information via alternative channels. |
· You agree we may use the name and contact
information of any customer you enter using Direct Entry, solely to encourage
those customers to place orders through your ezOrdering
link if you have one, so long as we comply with all applicable consumer
privacy, CAN-SPAM and related laws in doing so. |
|
Other |
|
You will place or have placed the ezOrdering link on your website(s) and/or app(s). You
acknowledge that the location of the ezOrdering
link on your website(s) or app(s) can significantly alter its effectiveness
in generating catering orders for you. |
· You agree to bear any loss associated with
fraudulent transaction claims relating to your Direct Entry orders |
*See Exhibit D for your
additional ezDispatch rights and responsibilities if you use this service.
EXHIBIT D
ezDispatch
Service Description and Our
Responsibilities
Delivery Providers
We
will source, recruit and train delivery providers. We also will manage all aspects of the
delivery provider relationship, including coordination of order fulfillment,
management of delivery issues, and payment of delivery providers.
Order
Fulfillment
We
will use commercially reasonable efforts to find suitable delivery providers
from within our network for the Marketplace, ezOrdering
and Direct Entry orders for which you request delivery and to cause such
providers to pick up your order(s) from you and to deliver your order(s) to
customers, both in the appropriate time windows as specified elsewhere in this
Agreement. In the event we cannot find a
delivery provider for any order, we will notify you.
Delivery
Fees and Payments
We will charge each customer for whom you use ezDispatch delivery services the delivery fee you set for
the order, if any. We will deduct from
the payment we make to you for the order, the applicable ezDispatch
Fee set forth on Exhibit A regardless of the delivery fee, if any, you
charge the customer.
Any voluntary tip the customer adds to the order will be retained by the
delivery provider.
Your Responsibilities
Fees
You
agree that for each order that utilizes ezDispatch we
may deduct the applicable ezDispatch Fee set forth on
Exhibit A from the payment we make to you for such order.
Food
Delivery and Pickup
You agree to have the food ready for pickup no more than 15 minutes before or 5 minutes after the pickup time.