Dishes Merchant Agreement

Terms and Conditions

 

The succeeding Dishes Merchant Agreement Terms and Conditions set forth ("Terms”) are applicable to the service relationship between Dishes Inc., (collectively, "Dishes”) and the Restaurant, Caterer, Food Retailer ("Merchant”) which is present on the Dishes' online web marketplace portal and any accompanying mobile applications ("Platform”).  These Terms and the Services set forth will be referred to as the "Agreement.” The Agreement is entered into as of the date of activation of the Merchant onto our website and any mobile applications ("Effective Date”).

PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THIS AGREEMENT, DIRECTLY OR THROUGH AN AUTHORIZED DISHES PARTNER, YOU OR THE ENTITY THAT YOU REPRESENT AGREE ON BEHALF OF ALL PARTICIPATING MERCHANT LOCATIONS TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. ANY AND ALL DISPUTES ARISING FROM THIS AGREEMENT HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS MERCHANT’S LEGAL RIGHTS SET FORTH IN THE ARBITRATION AGREEMENT BELOW.

1. Dishes Responsibilities and Obligations

a. Dishes will admit Merchant on the website, mobile applications, and other Dishes properties, as provided herein, and will display the Merchant details such as logo/images, locations, hours of service, menu items (pictures, description) , prices of menu items and any other charges with which the responsibility of accuracy is provided by the Merchant. 

b. Dishes will accept incoming purchase orders ("Orders”) from customers and process the payment accordingly on the Platform. Dishes will act as the conduit for the transmission of the customer order data to the Merchant for pickup or delivery of the food and method of payment for the food. Dishes, by use of its platform and proprietary software, and billing system, including any and all mobile applications, advertisements, partnerships, email marketing campaigns, and other marketing methods, will enable customers and business representatives to purchase food and beverages from Merchant at Dishes sole option to enable such purchases.  Orders will transmit the order electronically to the Merchant for acceptance and allow the Merchant to manage them in their Merchant account on the Platform.

c. Dishes may introduce or connect Merchant with delivery service providers through the Platform’s delivery software ("Delivery Service”), which operates separately from the marketplace, or through use of third party delivery companies (companies owned independently of Dishes). Dishes, in and of itself, does not engage in or provide delivery or logistics services, but, upon request or when needed, offers the ability for Merchants to utilize independent delivery service providers, and or, third party delivery service companies within its proprietary network to receive information relating to the deliveries and facilitate the transportation of orders to customers, which may include, but not limited to, storage and set up. Dishes delivery providers are comprised of independent contractors who receive order information through Dishes or other third party technologies to deploy their delivery services.  Scheduling, dispatch, and order facilitation are conducted at the sole discretion of the independent contractors and third party delivery companies. As such, neither Dishes, nor third party companies within the network that use independent contractors, will be liable or responsible for any independent delivery service providers or any actions, mistakes, or inaccurate representations made or caused by them. Dishes will have the exclusive right to determine the terms and details of the Delivery Service, should such services be requested by Merchant, including, without limitation, the delivery service provider, delivery fee, delivery radius and locale, and availability.  The Merchant has the right to use their own delivery services and must notify Dishes ahead of time should the Merchant decide to do so. 

d. Dishes maintains all ownership rights, title, and interest in and to the Platform and any material both digital and non-digital supplied by Dishes including the display and exhibition of any and all content provided by Merchant. The Platform comprises of proprietary technologies, functionalities, features, and know-how, and Dishes will have the sole and complete editorial authority and control over it.

2. Merchant Rights and Obligations

a. Merchant will provide Dishes with their content to Dishes to allow for its display and use on the Platform. The content provided by the Merchant, which all right, title, and interest in and to are owned by the Merchant, may include, but not limited to, menus, descriptions, pictures, logos and trademarks, which are subject to the license granted to Dishes herein described below ("Content”). By a Merchant signing up to be a part of the Platform, and or, by account activation and for twelve (12) months thereafter, Merchant will hereby grant to Dishes a royalty-free, global, non-exclusive, transferable, sub-licenseable, fully paid-up, irrevocable right and license to use the Merchant Content, which includes for marketing and promotional purposes by any means known now or developed in the future. Dishes has the authority to remove Merchant or its Content on the Platform at any time if it deems, in its sole discretion, that any such Merchant Content or behavior violates any applicable laws, subdues Dishes to undue regulatory risk or liability, infringes upon any third-party rights, instigates potential liability, impacts the integrity of the Platform, or impairs the reputation of Dishes.

b. Merchant will confirm all customer purchase orders on the Platform ("Orders”) and promptly choose whether to accept or decline them in them most expeditious manner. Merchant will ensure that they are fully and reasonably equipped to accept Orders electronically. Dishes will not provide the Merchant with any equipment unless otherwise agreed upon. Merchant will immediately communicate with and notify Dishes of any and all material changes to the Content, prices, availability, items, hours of operation, or extenuating circumstances that will impact the fulfillment of the Order.

Merchant agrees to use any security procedures or protocols or access credentials as requested by Dishes. Merchant will not allow any third party to use the Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Dishes Platform; damage, destroy or impede the services provided through the Dishes Platform; transmit injurious code; or bypass or breach any security protection on the Dishes Platform. Dishes may restrict or rescind Merchant’s right to use the Dishes Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Dishes, which will be promptly reimbursed by Merchant (at the replacement cost thereof). Dishes may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.

c. Merchant will process and fulfill all accepted Orders within the Platform in the order they are received by properly scheduling, managing, and preparing the food and products placed in the Order according to the date, times, and instructions specified by the customer. Merchants will ensure that the Orders are completed and ready for pick up either by the customer or Delivery Service at the time specified in the Order or appropriate to allow for enough time for delivery to the customer at their specified time. As such, Dishes will not be liable or responsible for any actions, mistakes, or inaccurate representations made or caused by the Merchant.

d. Merchant will provide all necessary products or materials such as utensils, condiments, napkins, packaging, etc. on all Orders as would normally and regularly on orders outside of the Platform. Orders should be presented, packaged, and delivered in a professional-like, temperature controlled manner that meets health safety standards as they would on any other order outside of the Platform.

e. Merchant will inform all staff and employees of the partnership agreement with Dishes and train designated personnel on the process of the Platform and the related terms specified in this agreement. Properly display any relevant marketing or promotional collateral, window badges, placards, banners or posters, and/or insignia in the Merchant’s place(s) of business indicating its relationship with Dishes and presence on the Platform.

3. Representation and Warranties

Merchant represents, warrants and covenants:

a)     It has the full right and authority to enter into and perform the services with Dishes and to grant the rights granted hereunder, and doing so will not in any way violate or breach any other agreement or obligation to which it is a party;

b)    It will comply with all applicable laws and regulations in its performance of this Agreement, including but not limited to (i) all applicable laws related to third party intellectual property and other proprietary rights, and (ii) all applicable privacy and data protection laws, regulations, and standards;

c)     It will comply with all applicable laws, rules and regulations pertaining to (i) food and beverage safety standards, (ii) other health and safety codes and standards, (iii) valid and active liquor licensure and all other applicable permits and registrations for the sale, distribution and (if applicable) delivery of alcohol;

d)    Merchant acknowledges that the services are provided on an "as-is” and "as available” basis and that the operation of the Platform may periodically experience technical problems or failures and may not necessarily continue uninterrupted or without technical or other errors. Dishes shall not, under any circumstances, be liable or responsible to Merchant or others or for any such interruptions or problems or damages arising from failures or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Dishes services contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement;

e)     TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, DISHES HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE DISHES PLATFORM, PRODUCT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DISHES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO MERCHANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES WE PROVIDE TO MERCHANT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. DISHES’ MAXIMUM LIABILITY IN TOTALITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF MONTHLY MERCHANT FEES EARNED BY DISHES DURING THE ONE MONTH (1 MONTH) PERIOD IMMEDIATELY PRIOR TO THE INCIDENT AND OR EVENT WHICH GAVE RISE TO SUCH SAID DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

4. Indemnification

Merchant will indemnify and hold Dishes (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; (iii) any actions, mistakes, or inaccurate representations made or caused by the Merchant; (iv) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement; (v) the violation of the intellectual property of the third party by the Merchant’s Content including but not limited to logos, pictures, trademarks, trade names, menus, documentation, or other intellectual property; (vi) any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant product(s), except to the extent such losses were caused directly by the gross negligence or willful misconduct of Dishes; or (vii) any bodily injury (including death) or damage to tangible or real property to the extent caused by Merchant or its products. Dishes assumes no liability, and shall have no liability, for any infringement claim pursuant to section (v) above based on Merchant’s access to and/or use of the Platform following notice of such an infringement claim; any unauthorized modification of the Platform by Merchant; or Merchant’s combination of the Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim. Dishes will provide prompt notice to Merchant of any potential claim subject to indemnification hereunder. Merchant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Dishes, provided that Dishes may use counsel of its choice at its own expense. Merchant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of Dishes, which will not be unreasonably withheld. Dishes may participate and reasonably cooperate with Merchant in the defense of the claim, at Merchant’s expense.

5. Confidentiality

a)     Merchant will maintain and uphold the confidentiality of all non-public information that it acquires in the course of the relationship with Dishes, including without limitation all Customer Data (as defined below), as well as the terms and conditions between the two parties, Dishes and the Merchant, (collectively, the "Confidential Information”). Merchant will not disclose or disseminate to any third parties, or use in any way other than as necessary to perform its obligations hereunder, Dishes’ Confidential Information. Merchant will ensure that Confidential and Proprietary Information will only be made available to those of its employees and agents who have a need to know such Confidential and Proprietary Information and who are be bound by written or unwritten and expressed obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by Dishes, Merchant will deliver to Dishes (or destroy at Dishes’ will) any and all materials or documents containing the Confidential and Proprietary Information, together with all copies thereof in whatever form.

b)    Merchant acknowledges that all Customer Information, defined as (i) any and all information about and relating to customers originated, gathered, or collected by Dishes or Merchant through the Platform, Mobile Applications,  or any other Technology or Services, including, but not limited to, customer’s name, email address(es), phone number(s), delivery address(es), and customer preferences and (ii) any information that may otherwise be considered "personal data” or "personal information” under any such applicable law ("Customer Information”), should be kept private according to privacy laws and is the sole and exclusive property of Dishes (or, as applicable, the Dishes Partner). Merchant will use the Customer Information only to satisfy the Merchant’s obligations under this Agreement and to properly fulfill the orders received. Merchant will employ and uphold adequate safeguards to protect, store, and secure Customer Information. Merchant will also be responsible for any breach of this provision by any third-party service provider engaged by Customer Information. Merchant will notify Dishes in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with Dishes concerning any remedial measures and any disclosures to affected parties, in each case as requested by Dishes or required under applicable law.

6. Termination.

a)     Merchant may terminate this agreement for any reason at any time upon 30 days prior written notice. Dishes may terminate this agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor Dishes will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Merchant or Dishes.

7. Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION AS THIS SECTION SHALL BE REFERRED TO AS THE "ARBITRATION AGREEMENT”.

a)     Any claim or dispute arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration through an arbitrator, rather than in court by a judge or jury, except for (a) claims in small claims court; and (b) claims to enforce or to prevent the actual or threatened violation or infringement of a party’s intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN ANY CASES THAT ARE FILED AGAINST THE COMPANY NOW OR INTO THE FUTURE THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

b)    This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Dishes’ registered agent. The arbitration will be conducted by a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association and pursuant to the terms of this Agreement. Parties are responsible for their own attorney’s fees and will share equally in the arbitrator’s fees. The arbitration proceedings will take place in California.

c)     The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.

d)    Waiver of Jury Trial. THE MERCHANT AND DISHES WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in (a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

e)     MERCHANT AGREES TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 18, and all other provisions of this Section 17 (Dispute Resolution) shall remain in force. If any provision of this Section 17 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 17.

f)      NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY. This Arbitration Agreement will survive any termination of your relationship with the Company. If the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

General Provisions.

Nothing herein shall be construed as creating an agency, partnership, or joint venture relationship between Dishes and Merchant, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Merchant Agreement executed between Merchant and Dishes, these Terms form part of an Agreement between the parties, which supersedes all prior agreements, understandings, and communications of the parties, oral or written, with respect to the subject matter hereof. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Merchant may not assign this Agreement in whole or in part without Dishes’ prior written consent. Dishes may freely assign this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Merchant Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.