3B Apps Restaurant Agreement
This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“You” or “Restaurant”) and 3B Apps, Inc. (“3B Apps”). This Agreement specifies the terms under which You may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting your assent to this Agreement, You agree to be bound by the terms of this Agreement. If You do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of binding it to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth in Section 12. The definitions for other defined terms are set forth elsewhere in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and 3B Apps (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. SUBSCRIPTION TO THE PLATFORM; LICENSES; TABLET COMPUTER AND WIRELESS PRINTERS; RESTRICTIONS ON USE; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
- 1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, 3B Apps hereby grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Platform. Restaurant shall be responsible to 3B Apps for any and all acts or omissions of the Users. 3B Apps reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability.
- 1.2 License Grants to Restaurant Content and Restaurant Marks.
- Subject to the terms of this Agreement, Restaurant hereby grants to 3B Apps during the Term:
- (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content, in whole or in part, through the Platform and in connection with any services 3B Apps performs for Restaurant pursuant to the Additional Terms (as defined below), but solely to the extent necessary for 3B Apps to perform such services. 3B Apps’s license to modify the Restaurant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to Restaurant pursuant to the Additional Terms; and
- (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant; (2) in connection with 3B Apps’s performance of any services pursuant to the Additional Terms; and (3) with the prior consent of Restaurant, in connection with the marketing, advertising, and promotion of 3B Apps and the Platform; provided, however, that pursuant to Section 10, 3B Apps may list Restaurant as a client of 3B Apps and a user of the Platform without having to obtain Restaurant’s consent. All goodwill generated by 3B Apps’s use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant.
- 3B Apps shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) (i) to any subcontractors performing services on 3B Apps’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or 3B Apps badges or widgets embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to 3B Apps with respect to the use of the Restaurant Content and the Restaurant Marks.
- Subject to the terms of this Agreement, Restaurant hereby grants to 3B Apps during the Term:
- 1.3 Tablet Computer and Wireless Printers.
- 3B Apps shall deliver to You or shall have delivered on its behalf a tablet computer fully configured for the Platform, along with certain additional equipment, such as a stand, charger, and other peripherals (collectively, the “Tablet”). In addition, as an optional feature if You are located in the United States, You may purchase or lease wireless receipt printers through 3B Apps (the “Wireless Printers”). You shall promptly, and in no event more than five (5) business days after 3B Apps’s delivery of the Tablet and, if applicable, any Wireless Printers, inspect them and confirm in writing that they are in good repair and condition and that You are satisfied with and have accepted them. In the event You discover a defect with the Tablet and/or any Wireless Printer, You shall promptly, and in no event more than one (1) business day of discovery of such defect, notify 3B Apps in writing of such defect. If You fail to provide 3B Apps with the notification described in this Section with respect to the Tablet and/or any Wireless Printer, You shall be deemed to have accepted them. In the event that You timely and properly reject the Tablet and/or any Wireless Printer in accordance with this Section, 3B Apps shall be responsible for contacting the appropriate supplier(s) and/or manufacturer(s) and either obtaining a replacement or ensuring that the Tablet and/or the Wireless Printer are properly repaired.
- 3B APPS, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE TABLET OR THE WIRELESS PRINTERS NOR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE TABLET OR THE WIRELESS PRINTERS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
- You acknowledge and agree that the Tablet is being leased to You, at no cost, for use solely in connection with the Platform pursuant to this Agreement. In addition, if You are leasing any Wireless Printers, You acknowledge and agree that they are being leased to You, at the prices set forth on the Platform on the Pricing page, for use solely in connection with the Platform pursuant to this Agreement. For the avoidance of doubt, You shall not (and shall not permit any third party) to use the Tablet and/or any leased Wireless Printers for any purpose other than to connect to the Platform. Such prohibited activities include, without limitation, using the Tablet and/or any leased Wireless Printers to: (i) process in-house orders not processed through the Platform; (ii) play games; (iii) use mobile applications; (iv) access the Internet; or (v) print anything other than Orders and Marketplace Orders. You shall use the Tablet and/or any leased Wireless Printers in a careful and proper manner in conformity with their instructions and manuals and all applicable laws. In addition, You shall not use the Tablet or any leased Wireless Printers in any manner that could reasonably be expected to impair the applicability of suppliers’ and/or manufacturers’ warranties or render them unfit for their originally intended use nor permit any person other than authorized and competent personnel to operate them. The Tablet shall not be used for any use illegal under state law or federal law.
- Title to the Tablet and any leased Wireless Printers shall at all times remain in 3B Apps. You shall have no right, title, or interest in or to the Tablet or any leased Wireless Printers except the right to possession and use thereof during the Term and pursuant to the conditions in this Agreement. The Tablet and any leased Wireless Printers shall remain personal property, notwithstanding the manner in which they may be affixed to any real property. You shall at all times protect and defend, at Your own cost and expense, the title and interest of 3B Apps from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of You and keep the Tablet and any leased Wireless Printers free and clear from all such claims, liens, processes, and any other encumbrance. You shall not sublease, transfer, or dispose of the Tablet or any leased Wireless Printers or grant or permit any lien on them. You agree that You will not mortgage or otherwise encumber the Tablet or any leased Wireless Printers.
- 3B Apps shall have the right to mark the Tablet and any leased Wireless Printers in a distinct and conspicuous manner with the name of 3B Apps followed by the words “Property of 3B Apps” or other appropriate words designated by 3B Apps. You shall not alter, deface, or remove any of 3B Apps’s ownership identification plates or markings and, upon 3B Apps’s request, You shall affix or re-affix such identification.
- The Tablet and any leased Wireless Printers shall be located in the Restaurant, and You shall not remove, or permit (by act or omission) them to be removed from the Restaurant without the prior written consent of 3B Apps.
- You shall immediately notify 3B Apps of any problems with the Tablet and/or any leased Wireless Printers, and shall use Your best efforts to work with 3B Apps to pursue any warranty claims that 3B Apps may have in relation to them. As between the Parties: (i) 3B Apps shall be responsible for all repair and maintenance of the Tablet and any leased Wireless Printers; provided, however, that You shall be solely responsible for the costs of any repairs and maintenance necessitated by Your negligence or misuse of them; and (ii) You shall be responsible for all repair and maintenance of any Wireless Printers that You purchase.
- Upon 3B Apps’s receipt or issuance of a termination notice as set forth in Section 5.2, 3B Apps may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process in the amount of $500 for each Tablet and additional charges for any additional 3B Apps equipment provided to Restaurant (e.g., leased Wireless Printers) and retain such sums as a deposit (the “Deposit”) until such items are returned to 3B Apps in good working order pursuant to and in accordance with Section 1.3(i). Upon such return, 3B Apps shall promptly credit Restaurant the amount of the Deposit. If one or more of the items are not returned, 3B Apps shall retain the applicable portion of the Deposit. If any of the items are returned damaged, 3B Apps shall retain the applicable portion of the Deposit as set forth in Section 1.3(i).
- Upon termination of this Agreement, or at any other time upon demand by 3B Apps, You, at Your sole expense, shall, as directed by 3B Apps, either (i) return the Tablet and any leased Wireless Printers to 3B Apps by delivering them in a manner consistent with the manufacturers’ recommendations and practices to such place or on board such carrier (packed properly and in accordance with the manufacturers’ instructions) as 3B Apps shall specify, or (ii) fully cooperate with 3B Apps in the disposition of the Tablet and any leased Wireless Printers. You shall ensure that the Tablet and any leased Wireless Printers will be returned to 3B Apps free and clear of all claims, liens, processes, and any other encumbrances and in the same condition as when delivered to You, reasonable wear and tear excepted. At any time, upon any total or partial loss of or damage to the Tablet and/or any leased Wireless Printers during the Term, You shall be responsible for, and 3B Apps may automatically draw against the Deposit and/or Your credit card, bank account, or other approved facility provided during the registration process, the value to replace or repair them, in whole or in part.
- 1.4 Restrictions on Use. Restaurant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Branded Apps, the Data, or the Tablet that is not expressly permitted under this Agreement. Without limiting the foregoing, Restaurant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Branded Apps; (ii) modify, adapt, translate, or reproduce the Platform or the Branded Apps; (iii) resell, distribute, or sublicense the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; make the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers available on a “service bureau” basis, or otherwise allow any third party to use or access the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; (v) use the Platform, the Branded Apps, the Data, the Tablet, or any leased Wireless Printers in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (vi) introduce into the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
- 1.5 Additional Products and Services. Restaurant may order Additional Products and Services at any time during the Term on notice to 3B Apps, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms“), as the same may be amended by 3B Apps from time to time.
- 1.6 Incorporated Terms. Your use of Apple Pay, and, ifYou are located in the United States or any of its possessions or territories, the Delivery option, is subject to the following additional terms and conditions, which are hereby incorporated by reference and binding upon You and which may be updated by Apple from time to time without notice to You (the “Incorporated Terms”). In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, such Incorporated Terms shall govern with respect to Apple Pay, Apple is not party to any Order and will not be responsible for any disputes between You and any Customer.
- For Apple Pay:
The current version of the iOS Developer Program License Agreement, available at Apple’s Member Center at https://developer.apple.com/app-store/review/, which 3B Apps can provide You upon request.
- For Apple Pay:
2. REGISTRATION, MAINTENANCE OF ACCOUNT, AND 3B APPS WIDGET.
- 2.1 Registration. During the registration process, 3B Apps requires You to create an account, which may include a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating You when Your Users log into the Platform in the future (“Unique Identifiers”). When creating the account, You must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform 3B Apps of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. 3B Apps will not be liable for any loss or damage caused by any unauthorized use of Your account.
- 2.2 Maintenance of Account. As 3B Apps’s business evolves, it may require additional information, authorizations, and permissions from You after You register in order to provide You access to and usage of the Platform and perform its other obligations under this Agreement. When requested by 3B Apps, You shall promptly provide all such information, authorizations, and permissions in accordance with 3B Apps’s request. When doing so, You shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to You or immediate termination of Your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so 3B Apps can comply with its Know Your Customer obligations), 3B Apps shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.
3.2 Canada’s Anti-Spam Legislation. If You are located in Canada, You are responsible for ensuring that all electronic communications between You and Your Customers comply with Canada’s Anti-Spam Legislation (“CASL”), including, but not limited to, any electronic messages sent to Customer email addresses accessed through Your dashboard. 3B Apps does not represent that it has obtained the consent of any Customer to receive marketing and promotional messages, and You are solely responsible for ensuring compliance with CASL for any electronic messages You send to Customers. If You are not located in Canada, please note that this Section 3.2 shall not apply.
4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
- 4.1 Fees; Refund Policy; Taxes. As consideration for the rights granted in Section 1, Restaurant shall pay 3B Apps its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Restaurant and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if Restaurant orders any Additional Products and Services through the functionality of the Platform, it shall pay 3B Apps’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Fees”). 3B Apps may modify the Fees at any time on written notice to Restaurant (including via Restaurant’s individual account in its Admin dashboard), and any such modification shall go into effect thirty (30) days after such notice. The Subscription Fee shall be locked for the first year of any annual subscription. View the Refund Policy, shown below with respect to the Subscription Fee, which is hereby incorporated into and made part of this Agreement. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions commencing or renewing on or after March 1, 2016, Restaurant shall also pay 3B Apps any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes, but excluding any taxes imposed or based on 3B Apps’s income (collectively, “Taxes”).
- 4.2 Payments to 3B Apps. 3B Apps shall authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and Restaurant hereby consents to the same. If Your restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Your restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date You can begin taking Orders or Marketplace Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, 3B Apps shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
- 4.3 Payments to Restaurant; Marketplace Orders.
- 3B Apps may use Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders.
- You must enter into the Connected Account Agreement (“CAA”) with Stripe and its sponsoring bank. The CAA is available at https://stripe.com/connect-account/legal. By accepting this Agreement, You agree: (i) that You have downloaded or printed the CAA; and (ii) that You have reviewed and agree to the CAA. Please note that 3B Apps is not a party to the CAA and that You, Stripe, and Stripe’s sponsoring bank are the three parties to the CAA and that 3B Apps has no obligations or liability to You under the CAA. If You have questions regarding the CAA, please contact Stripe as described in the CAA. If payment for an Order is processed through Stripe, the next business day after an Order settles, which will ordinarily be one (1) to two (2) business days from the actual Order date (depending upon Your bank’s settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: (x) American Express, MasterCard, Visa, and Discover: 2.9% + $.30 per Order; To the extent returns cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize 3B Apps and/or Stripe to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a daily basis. the avoidance of doubt, 3B Apps assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(b). To the extent the terms set forth in Section 4.3(a)(iii) above conflict with the terms contained in Your CAA, the terms of Section 4.3(a)(iii) shall prevail.
- RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT 3B APPS IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPEFAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE, AS APPLICABLE, PURSUANT TO THE CAA OR MSA, AS APPLICABLE. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES 3B APPS FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’SFAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
- You hereby authorize 3B Apps to process Marketplace Orders. In connection with any Marketplace Orders, 3B Apps is scheduled to receive payments from the applicable third-party platforms on a weekly basis. Within two (2) business days of receiving payment from a third-party platform for Marketplace Orders, the following sum shall be deposited into the bank account You direct payment: the amounts for all such Marketplace Orders for which You have not yet been paid, less (i) any allowances actually made or taken for refunds; (ii) any third-party delivery charges; and (iii) ten percent (10%) of such Marketplace Orders. To the extent refunds cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize 3B Apps to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such refunds on a weekly basis.
- 4.4 Taxes On Orders and Marketplace Orders. In connection with all Orders and Marketplace Orders, You shall: (i) ensure that the tax rates set forth in Your 3B Apps dashboard are correct; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and Marketplace Orders and the processing of such Orders and Marketplace Orders for Customers (excluding any taxes imposed or based on 3B Apps’s income).
- 4.5 Subscription Plans. At any time during the first year of the Term, Restaurant, if it originally selected a month-to-month subscription, may convert to an annual subscription plan on thirty (30) days’ notice to 3B Apps. After the first year of the Term, if the Restaurant originally selected an annual subscription, such subscription shall be automatically converted to a month-to-month plan for the remainder of the Term. Restaurant may add new locations at any time during the Term on notice to 3B Apps, including through the Platform, via e-mail, or by phone.
5. TERM AND TERMINATION.
- 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
- 5.2 Termination. Either Party may terminate this Agreement: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any or no reason, upon thirty (30) days prior written notice to the other Party (without penalty or liability).
- 5.3 Effect of Termination. Upon termination of this Agreement:
- Restaurant shall be paid any amounts payable under Section 4.3(b), Section 4.3(c), and Section 4.3(e);
- 3B Apps shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.2 and any other amounts due under this Agreement; and
- 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 Tablet and any leased Wireless Printers as set forth in Section 1.3, and 3B Apps may draw against the Deposit, as set forth in Section 1.3.
- 3B Apps shall remove the 3B Apps widget from Your website, and You shall assist us in doing so.
- 5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.3 (“Tablet Computer and Wireless Printers”); Section 1.5 (“Additional Products and Services”); Section 1.6 (“Incorporated Terms”); Section 5.3 (“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.4 (“Survival”).
- 6.2 Usage of Data. Although Restaurant owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and 3B Apps’s privacy policies.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
- 7.1 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 discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall 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, the Internet, 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.
- 7.2 Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform; (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders and Marketplace Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders and Marketplace Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders or Marketplace Orders that are scheduled to be delivered to a Customer by a third-party delivery service, Restaurant shall package the Order or Marketplace Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order or Marketplace Order is available for pickup upon the third-party delivery service’s arrival; (v) if it has signed up for On-Demand Delivery, it shall not offer alcohol on its online menu through the Platform, and if it attempts to do so, 3B Apps 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 or Marketplace Order that includes alcohol, Restaurant shall 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 3B Apps’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, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (viii) Restaurant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with 3B Apps’s use of the Restaurant Content and the Restaurant Marks and/or 3B Apps’s exercise of any license granted hereunder, and 3B Apps shall not be obligated to pay any fees in connection therewith.
- 7.3 Disclaimer.
- 3B APPS CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY 3B APPS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” 3B APPS MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION 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.
- 3B APPS HAS MADE EVERY EFFORT TO DISPLAY THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH 3B APPS WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL TABLETS, ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON TABLETS AND ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TABLET OR ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH TABLET OR ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
8. 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) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW 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 SUBSCRIPTION FEES PAID TO 3B APPS HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL 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 TABLET AND/OR ANY LEASED WIRELESS PRINTERS; OR (D) YOUR BREACH OF SECTION 1.4; (II) 3B APPS’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO 3B APPS UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF 3B APPS AND ITS DELIVERY SERVICE VENDOR FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (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, You shall indemnify, defend, and hold harmless the 3B Apps Indemnified Parties from and against any and all Losses incurred by such 3B Apps Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Your breach or alleged breach of the Incorporated Terms and/or Section 4.4; (ii) an Adverse Event; or (iii) the processing of Orders and/or Marketplace Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
During the Term, 3B Apps shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that You are a client of 3B Apps and a user of the Platform. In addition, upon the reasonable request of 3B Apps, the Parties shall 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 shall be mutually determined by the Parties. In conjunction with the initial press release, You, if requested by 3B Apps, shall make one (1) or more representatives available for a strategic press interview.
11. MISCELLANEOUS PROVISIONS.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall 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 shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement is entered into in the State of Indiana and shall be governed by and construed in accordance with the domestic laws of the State of Indiana, without giving effect to its principles of conflicts of laws. 3B Apps may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and the Additional Terms is the complete and exclusive statement of the mutual understanding 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., an e-mail or a click-through modification); provided, however, that 3B Apps may modify this Agreement and/or the Additional Terms at any time by posting such modification on Your individual account in Your admin dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is Restaurant’s responsibility to check for such modifications on a regular basis. 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. Any damages from breach of security of customer data shall be limited to amount the Restaurant has paid 3B Apps, Inc. in the last 12 months of the agreement.
- 12.1 “Additional Products and Services” means products and services, other than access to the Platform, that You may order from 3B Apps, including, without limitation, website development services, marketing services, paper products, data connectivity, and Wireless Printers.
- 12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order or Marketplace Order.
- 12.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
- 12.4 “Branded Apps” means the Restaurant-branded mobile applications set up by 3B Apps.
- 12.5 “Customer” means a party that submits an Order or Marketplace Order.
- 12.6 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
- 12.7 “Effective Date” means the date You accepted this Agreement.
- 12.8 “Intellectual Property” has the meaning specified in Section 6.
- 12.9 “Marketplace Orders” means Orders that originate on any third-party platform, such as Yelp and SinglePlatform, that are processed through the Platform.
- 12.10 “Menu” means Your menu submitted to 3B Apps, as updated by You from time to time.
- 12.11 “Order” means a meal order for Your food and/or beverages submitted by Customers through 3B Apps via the Platform.
- 12.12 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
- 12.13 “Platform” means the social and mobile meal-ordering platform provided by 3B Apps, which may be amended by 3B Apps from time to time, including: (i) the Tablet; and (ii) the Branded Apps.
- 12.14 “Restaurant Content” means any content submitted by You to 3B Apps, including, without limitation, the Menu.
- 12.15 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
- 12.16 “Term” has the meaning specified in Section 5.1.
- 12.17 “User” means an employee or agent of Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT,
Additional Terms to Agreement
These Additional Terms apply to any order for Additional Products and Services requested by You and are being entered into pursuant to the Agreement between You and 3B Apps, which is hereby incorporated by reference. Capitalized terms not defined in these Additional Terms are as defined in the Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
- 1. BACKGROUND AND ACCEPTANCE. You and 3B Apps have entered into the Agreement pursuant to which 3B Apps granted Users certain rights to access and use the Platform. These Additional Terms specify the terms under which You may order Additional Products and Services. Please read these Additional Terms carefully before submitting any order for Additional Products and Services, because by submitting any such order, You agree to be bound by these Additional Terms. The person submitting any order represents that he or she is an authorized representative of Restaurant capable of binding Restaurant to these Additional Terms. If there is any conflict between these Additional Terms and the terms of the Agreement, these Additional Terms shall prevail.
- 2. TERMS SPECIFIC TO WEBSITE DESIGN AND DEVELOPMENT SERVICES.
- 3B Apps and/or its third-party service providers shall purchase the domain(s) selected by You (subject to availability) and design and develop the website (the “Website”) as agreed by the Parties, using the tools, templates, and methodologies of 3B Apps and its third-party service providers (the “Tools and Templates”).
- As between the Parties, You shall own all right, title, and interest in and to all Restaurant Content that is uploaded to the Website, and 3B Apps (or its third-party service providers, as applicable) shall own all right, title, and interest in and to the Tools and Templates and the Website, excluding any Restaurant Content.
- With respect to the Restaurant Content, you hereby grant 3B Apps the rights and licenses set forth in Section 1.2 of the Agreement.
- During any month that You pay 3B Apps to host the Website (the “Hosting Term”), 3B Apps or its third-party hosting providers shall host the Website. After the Hosting Term: (i) 3B Apps and its hosting providers shall no longer host the Website; (ii) 3B Apps shall transfer the domain to You; and (iii) You shall cease all use of the Website, although You may continue to use any Restaurant Content.
- THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE, AND 3B APPS AND ITS THIRD-PARTY SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER 3B APPS NOR ITS THIRD-PARTY SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS MAKE ANY WARRANTY THAT THE WEBSITE WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED.
- 3. TERMS SPECIFIC TO MARKETING SERVICES.
- The parties shall agree on the scope and timing of all marketing services, any deliverables to be created by 3B Apps (the “Deliverables”), and the Fees, expenses, and taxes associated therewith.
- 3B Apps shall retain all intellectual property rights in and to the Deliverables, including all copyrights and trademarks; provided, however: (i) upon the payment of all Fees, expenses, and taxes due and owing for such Deliverable, 3B Apps shall be deemed to have granted Restaurant a non-exclusive, irrevocable, world-wide, perpetual, fully paid-up, and royalty-free license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, modify, maintain, support, and otherwise exploit such Deliverable; (ii) if 3B Apps creates a Deliverable solely, exclusively, and specifically for Restaurant, such as a logo, and 3B Apps agrees in a writing that such Deliverable is to considered a “work-made-for-hire” within the meaning of the Copyright Act of 1976, as amended, Restaurant shall own all right, title, and interest in and to such Deliverable, including all intellectual property rights, upon Restaurant’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable and such Deliverable shall be considered a “work-made-for-hire; and (iii) in the event (and to the extent) that any Deliverable described in subsection (ii) above does not constitute a “work-made-for-hire,” 3B Apps assigns to Restaurant (upon Restaurant’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable) all rights, title, and interest in and to such Deliverable, including all intellectual property rights.
- 3B Apps represents and warrants that it shall perform any marketing services in a professional and workmanlike manner.
- 4. TERMS SPECIFIC FOR WIRELESS PRINTERS AND OTHER ADDITIONAL PRODUCTS.
- 3B APPS, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE WIRELESS PRINTERS OR ANY OF THE OTHER ADDITIONAL PRODUCTS SOLD ON THE PLATFORM OR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE WIRELESS PRINTERS OR SUCH OTHER ADDITIONAL PRODUCTS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
- To the extent permissible under the applicable suppliers’ and/or manufacturers’ warranties, upon Your complete payment of the Add-On Fees and taxes in connection with a purchase for Wireless Printers and/or other Additional Products, 3B Apps shall use commercially reasonable efforts to pass through such warranties to You and otherwise facilitate the resolution of any warranty issues between You and such third parties with respect to the Wireless Printers and/or other Additional Products.
- The warranty information for the Wireless Printers can be found at http://www.starmicronics.com/supports/supportmain.aspx.
- 5. PAYMENT. Payment for all orders for Additional Products and Services is governed by Section 4 of the Agreement.
If you are not satisfied with your 3B Apps service please email firstname.lastname@example.org for a Return Material Authorization (RMA). 3B Apps will provide you with instructions to package and ship the 3B Apps product that you received with your subscription for 3B Apps service. There are no refunds on 3B Apps’s service or product fees, however, you may cancel your 3B Apps service at any time. You will be billed for the remaining amount in your monthly cycle and the service will be terminated at the end of the monthly cycle in which you terminated the service.
Damaged 3B Apps products may be returned for refund or exchange under limited circumstances. These circumstances include when a 3B Apps product is Dead on Arrival (see the section below for more detailed 3B Apps on such Dead on Arrival products). If the item is returnable and you send it back to us unopened in the original box, 3B Apps will offer you a refund based on your original method of payment. You must return the product to the 3B Apps warehouse within 14 calendar days of the issuance of the RMA. All products must be packed in the original, unmarked packaging including any accessories, manuals, documentation, and registration that shipped with the product.
Note: 3B Apps recommends that you (1) use a carrier that offers shipment tracking for all returns and (2) either insure your package for safe return to 3B Apps or declare the full value of the shipment so that you are completely protected if the shipment is lost or damaged in transit. If you choose not to (1) use a carrier that offers tracking or (2) insure or declare the full value of the product, you will be responsible for any loss or damage to the product during shipping.
If your 3B Apps product is returned to our warehouse within 30 days from the date of shipment and is in working condition, your service will be cancelled automatically and you will not be charged any fees.
Dead On Arrival (DOA) Product: System Failure Out Of The Box
A 3B Apps hardware product is considered DOA if it shows symptoms of a hardware failure, preventing basic operability, when you first use it after opening the box. If you believe that your product is DOA, please email 3B Apps Technical Support at email@example.com within 30 calendar days of the invoice date. 3B Apps Technical Support will determine whether the product is DOA and offer you the following options:
- Replacement: 3B Apps, at its expense, will ship another of the same product. 3B Apps Technical Support will put you in touch with an 3B Apps Customer Service Representative who will arrange for replacement and the DOA product’s return.
- Service: You may have the product repaired. However, once you choose that option, you may not request replacement of the product.
If 3B Apps Technical Support determines that a returned product is not DOA, 3B Apps will apply 3B Apps’s standard product warranty to the product. Further, if 3B Apps Technical Support determines that you have misrepresented a returned product’s condition and that the product is not DOA, 3B Apps may impose a $150 handling fee.
This DOA policy applies only to 3B Apps hardware products currently offered by 3B Apps. As new products are offered, 3B Apps reserves the right to determine whether or not this policy applies.
If you discover what you believe is a product defect for any 3B Apps–branded product, please contact 3B Apps Technical Support at firstname.lastname@example.org.
Other Terms And Conditions
- 3B Apps is not responsible for typographical errors. 3B Apps reserves the right to cancel any order you have placed if there was a typographical error on the 3B Apps site concerning the pricing or availability of any item you ordered when you placed the order.
- 3B Apps reserves the right to change the terms and conditions of sale at the 3B Apps site at any time.
- 3B Apps may make changes to any products or services offered at the 3B Apps site, or to the applicable prices for any such products or services, at any time, without notice. The information provided at the 3B Apps site with respect to products and services may be out of date, and 3B Apps makes no commitment to update the information provided at the 3B Apps site with respect to such products and services.
- 3B Apps reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the 3B Apps site, or to any portion of the 3B Apps site, for any reason; (2) to modify or change the 3B Apps site, or any portion of the 3B Apps site, and any applicable policies or terms; and (3) to interrupt the operation of the 3B Apps site, or any portion of the 3B Apps site, as necessary to perform routine or non–routine maintenance, error correction, or other changes.
- To the extent permitted by law, all sales at the 3B Apps site are governed by Indiana law, without giving effect to its conflict of law provisions.
- No 3B Apps employee or agent has the authority to vary any of the 3B Apps site’s policies or the terms and conditions governing any sale.
- If any of the aforementioned policies are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such policy shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of the policy, so that the policies shall remain in full force and effect.
- 3B Apps’s failure to insist on or enforce strict performance of these policies shall not be construed as a waiver by 3B Apps of any provision or any right it has to enforce these policies, nor shall any course of conduct between 3B Apps and you or any other party be deemed to modify any provision of these policies.
- These policies shall not be interpreted or construed to confer any rights or remedies on any third parties.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
By: /s/ __________________________________________________