Merchant Terms and Conditions

Dishefs – Merchant's Terms and Conditions

 

Dishefs U.S. Merchant Terms and Conditions

 

This Agreement sets out the Terms and Conditions by which Dishefs LLC ("Dishefs," "we," "us," or "our") provides its services (the "Services," described below) to you ("Merchant," "you," or "your") through its website located at https://www.dishefs.com (the "site") and through its mobile applications and related services (the "Agreement").  

 

To simplify the language in this Agreement the term, "Merchant," refers to the individual who, or legal entity which operates or is a restaurant, pharmacy/convenience store, grocery retailer, farmers' market seller, restaurant chef, food truck chef, personal chef, or caterer.  No Merchant will in any way be considered an employee of Dishefs and will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and will not be eligible to recover contributor's compensation benefits in the event of injury.

 

Collectively, the Services, including any new features and applications, and the site, are subject to the following terms of service, as amended from time to time (the "Terms of Service"). 

 

By accepting this Agreement, by (1) clicking a box indicating acceptance or (2) executing an order addendum that references these terms, or an addendum or addenda, Merchant agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms, in which case the term "Merchant" (such grocery retailer, pharmacy/convenience store, farmers market seller, restaurant chef, food truck chef, personal chef, or caterer) including any new features and applications, and the site, the "Service(s)") shall refer to such entity and its affiliates. 

 

The Merchant acknowledges that it fully understands and will comply with the regulations governing its operations in its specific state, municipality or locality, including such specific state, municipality or locality in which it operates its base OR delivers Items or Services through any Channel (which may or may not be the same state, municipality, or locality in which it operates its base).  Merchant acknowledges that it accepts the responsibility to know, understand, follow, and comply with any government regulations governing the operation of the business for which it uses the Dishefs Application and/or the Services.  Be aware that compliance with applicable laws and regulations in your area may include inspection by government officials of your premises, facilities, and equipment, with or without prior notice.

 

Each Merchant should confer with its own legal advisor regarding laws and regulations in the state, municipality, or locality where it operates or provides Items or Services.  Dishefs is not liable, and will be held harmless for any consequences that may arise from Merchant's non-compliance with such applicable laws and regulations.  

 

Dishefs reserves the right to use secret shoppers to assess whether you and your facilities are in compliance with your responsibilities under your agreement(s) with Dishefs.  

 

If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.  Section 17 of this agreement contains provisions that govern how claims that the parties have against each other are resolved, including without limitation, a mandatory arbitration provision.  Further, (1) you will only be permitted to pursue claims against Dishefs on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis, and (3) you may not be able to have any claims you have against us resolved by a jury or in a court of law.

 

1. GENERAL

 

These Dishefs Merchant Terms of Service are hereby accepted and agreed to by the company identified within the Dishefs sign-up process ("Merchant" or "you"), and constitute a legally binding agreement by and between Merchant and Dishefs.  Upon acceptance of these Terms of Service, Merchant may request access to the Marketplace Channels (Gofer/3rd Party Driver Channel, Non-Delivery Channel, MerchantDriver Channel, or Catering Channel), and/or product services such as the Promotions Tool, or to the Dine-In Match-Up Channel), as described in more detail herein (each a "Sales Channel").  By a separate agreement, Merchants may request access to Dishefs' Match-Up Channels (Kitchen Match-Up or Non-Profit Match-Up).  Such requests shall indicate Merchant's acceptance of any applicable Marketplace Channel or Match-Up Channel terms detailed below, and of the terms of any applicable addendum.  

 

These Terms of Service may be subject to and/or incorporate applicable Addenda.  These Terms of Service and any such Addendum, or Addenda are, collectively, the "Agreement" or "Terms of Use."  Merchant's access to and use of the Dishefs application and Dishefs Tools (as defined below) are subject to the Agreement and may be modified or updated by Dishefs from time to time, effective upon posting an updated version of these Terms of Service and/or an applicable Addendum on the Dishefs App or website. 

 

Merchant is responsible for updating contact information and regularly reviewing the Terms and any applicable Addendum for updates and information from Dishefs.  Continued use of the Dishefs Services after any such modifications or updates shall constitute Merchant's consent to such changes. 

 

Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings described to such terms in the applicable Addendum.

 

2. SERVICES

 

2.1 Items and Services

 

Note that Dishefs may not, at the time you enter into this agreement, offer all services, technology, features, functionality and/or options described in it.  Dishefs reserves the right to add or remove offered elements of its product at any time.  In such instances, Dishefs will offer as much advance notice as possible.  

 

In the Meal Marketplace (further described below) Dishefs and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for Restaurant Items (as defined below), and other products (collectively, "Restaurant Items") from Merchant to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services ("online delivery ecosystem"). "Restaurant Items" are defined as foods and beverages that are typically sold by restaurants in a form intended for immediate consumption on-premises, for take-out, and/or delivery.  Under this system, Merchant may be required to sell non-Restaurant Items via a unique Personal Chef within the Dishefs App.  Dishefs shall retain sole discretion whether an Item constitutes a non-Restaurant Item and whether Merchant is required to sell such items. 

 

Dishefs and its affiliates also make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for Catering Service (as defined below) (collectively, "Catering Services") from Merchant to Customers in the same online delivery ecosystem. "Catering Services" are defined as food and beverage orders that are typically intended to be sold by restaurants or personal chefs in a form intended to be prepared in bulk based on a certain number of people or number of plates for consumption at an agreed-upon venue, Customer's home, or on-premises.  Catering Services are further described below.  

 

Many Merchants, particularly grocery stores and pharmacy/convenience stores, may offer non-food items.  These items are typically referred to as "Items," but if referred to as "Restaurant Items," are not excluded from the meaning of the term Items.  

 

Under either a Restaurant or Pharmacy/Convenience Item or Catering Service transaction, if Merchant is eligible to offer the sale and fulfillment of alcoholic beverages through specified Sales Channels in designated U.S. states ("Alcohol Items"), Merchant's sale of Alcohol Items using Dishefs Services may be subject to Terms of Use for Alcohol Sales ("Alcohol Terms"), as well as any Sales Channel Specific Terms. The definition of Items shall include Alcohol Items as applicable and referenced within the Agreement. If any conflict between these Terms and any Alcohol Terms, the Alcohol Terms shall govern with respect to Alcoholic Items and these Terms shall govern with respect to Items. Dishefs reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. 

 

Using the Dishefs App, no Merchant will list or offer for purchase, donation, or otherwise, any tobacco products or related products containing nicotine.  

 

The Dine-In Match-Up Channel facilitates Customers who wish to search for and reserve tables offered by Restaurant Merchants at specific dates and times, or be placed on a wait-list.  Dine-In Match-Ups include options whereby Customers can order and pay for food through the Dishefs App prior to or during their dine-in experience.  

 

You agree that Dishefs shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

2.2 Merchant Technology

 

In connection with the Dishefs Services, Dishefs and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Dishefs Services (collectively, the "Dishefs Tools"), which may include Dishefs' and its affiliates'' proprietary technology platform referred to as Merchant Manager, through which insights and analytics regarding Merchant's performance and history using the Dishefs Services are provided, and Dishefs and its affiliates'' proprietary technology platform referred to as Dishefs Merchant Dashboard, through which Merchant may, among other things, receive, accept and fulfill requests for Items or Services from Customers.

 

2.3 Dishefs App

 

Dishefs and its affiliates may also make available to Customers its proprietary technology platform that provides an online platform to enable Merchants to list, offer, sell and deliver grocery, pharmacy/convenience, food items and meal orders, ("Items") including catered meals ("Meal(s)") to the general public, and customers using delivery people (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers ("Dishefs App").  Dishefs Delivery people ("Gofers," further described below) are independent contractors, and as such, they may reserve the right to refuse to accept any Item in their sole discretion.  Further, if Merchant opts to use "3rd Party Drivers" further described below, those drivers will be subject to the same Terms of Use of the Dishefs App as Gofers are, as that use relates to their performance of deliveries on Merchant's behalf, including the fact that delivery persons are independent contractors.  

 

Users who purchase Items or Services through any Channel are "Customer(s)," and users who list, prepare and sell Items or Services through the Service are "Merchant(s)." A user may be both a Customer and Merchant.  All purchases are made directly (and any contract for purchase and sale is) between the Customer and Merchant. 

 

Merchants may, at their option, pay an additional fee to be listed more prominently on the Dishefs App when users perform a search for the type of Items or Services they offer.  If such option is exercised, Dishefs makes no representations and will bear no responsibility for a resulting increase in exposure or sales.  

 

Each Merchant is solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparation, sale, marketing, and packaging of all Items ordered through Dishefs, and updating details and prices relating to the Items offered.  Each Merchant is solely liable for the quality, safety, and freshness of its products, and Dishefs does not verify the credentials, representations, products, services or prices offered by any Merchants, and does not guarantee the quality of the product or services, or that Merchants, Items or Services comply with applicable laws. Dishefs will not be liable or responsible for any Items or Services provided by Merchants that are a cause of injury or that do not meet your expectations in any manner.  

 

Dishefs may enter into agreements with independent contractors (each a "Gofer") to provide delivery services under certain circumstances if desired by individual Merchants. If a Merchant chooses to use a Gofer to deliver Items or Catering Service, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any Gofer. Dishefs will not be liable or responsible for any delivery services provided by a Gofer or any errors or misrepresentations made by them.  

 

Merchants may enter into agreements with 3rd Party Drivers such as PostMates, DoorDash, UberEats, or InstaCart (each a "3rd Party Driver") to provide delivery services under certain circumstances if desired by individual Merchants.  If a Merchant chooses to use a 3rd Party Driver to deliver Items or Catering Service, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any 3rd Party Drivers.  Dishefs will not be liable or responsible for any delivery services provided by a 3rd Party Driver or any errors or misrepresentations made by them.  As regards their use of the Dishefs App to perform delivery services, 3rd Party Drivers will be subject to the same Terms and Conditions as Gofers.  

 

Dishefs may enter into agreements with 3rd Party Drivers such as PostMates, DoorDash, UberEats, or InstaCart (each a "3rd Party Driver") to provide delivery services under certain circumstances.  If a Delivery being performed by a 3rd Party Driver to deliver Items or Catering Service, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any 3rd Party Drivers.  Dishefs will not be liable or responsible for any 3rd Party Driver errors or misrepresentations made by them.  

 

If you choose to register for Dishefs in order to access and use certain features of the Service, you agree to provide and maintain true, accurate, current and complete information about yourself and/or your inventory as prompted by the Service's registration form.  Registration data and certain other information about you are governed by our Privacy Policy.  The Service is available only to individuals who form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not available to minors (people under the age of majority in their state or province of residence) or to temporarily or permanently suspended users of the Service (both Customers and Merchants). If you do not qualify, please do not use the Service. Additionally, Dishefs reserves the right to refuse access to, or use of the Service to, anyone, and may terminate any account, at any time, in its sole discretion. You are only authorized to create and use one account for the Service and are prohibited from using lookalike or other disguised identities when using the Service.

 

2.4 Sales Channels

 

Merchant may request access to sell and deliver Items via various services provided by Dishefs: Gofer/3rd Party Driver Channel, Non-Delivery Channel, and Merchant Driver Channel (each, a "Sales Channel" described in more detail below). 

 

By electing to use a Sales Channel, Merchant agrees to accept any applicable addenda.  The Sales Channels are as follows: 

 

1. GOFER/3RD PARTY DRIVERS CHANNEL: Merchant may sell Items through the Gofer Sales Channel ("Gofer/3rd Party Driver Channel"), whereby Merchant's Items are presented in the Dishefs App to Customers who access and request on-demand delivery services provided by Gofers or 3rd Party Drivers as described below.  

 

1. Gofers and 3rd Party Drivers are required to comply with all applicable laws, rules and regulations.  Additional Gofer/3rd Party Driver Channel Addendum terms apply to Gofers and 3rd Party Drivers. 

 

1. NON-DELIVERY CHANNEL: Merchant may sell Items through a Non-Delivery Sales Channel ("Non-Delivery Channel"), whereby Merchant's Items are presented on the Dishefs App to Customers for pick-up at Merchant's Location (i.e., without the use of a Gofer). For the avoidance of doubt, the provisions relating to Gofers in the Terms will not apply to the sale of Items through the Non-Delivery Channel. 

 

1. MERCHANT-MANAGED DRIVER CHANNEL: Merchant may sell Items through the Merchant-Managed Delivery Channel ("MerchantDriver Channel"), on an on-demand basis, typically Meals or for a scheduled event (Catering Services).  For Meal sales, Merchant's Items are presented on the Dishefs App to Customers who access and request on-demand delivery services provided by Merchant-Managed delivery staff ("Merchant-Drivers”).  For Catering Services, food and beverage items are presented on the Dishefs App to Customers who access an order form, then communicate with Merchants to negotiate and finalize bulk deliveries through Merchant-Drivers.   

 

Merchant-Managed delivery staff are employees, contractors, workers or agents of Merchant who provide delivery services on Merchant's behalf, arranged independently of Dishefs. Additional Merchant-Driver Channel Addendum terms apply.

 

1. CATERING CHANNEL:  Merchant may sell Items through the Catering Channel.  To use the Catering Channel, Customers will choose from a selection of Merchants offering catering services.  Those Customers would then enter the details of their proposed catering transaction in an online form ("Inquiry Form"), including Customer Information, Event Date and Location, Guest Details and Cuisine Details.  Merchant will review the Inquiry Form and respond to Customer with an estimate and further negotiate with Customer to clarify and finalize the details of the catering order.  Payment for the catering services as agreed between Merchant and Customer will be made through the Dishefs app.  Merchants will use Merchant-Driver capabilities to deliver catering orders.  All terms applying to Merchant-Drivers apply in catering transactions.  

 

Additional terms regarding these Channels may be found in the applicable addenda.  

 

2.5 Dine-In Match-Up Channel

 

Merchants may request access to Dine-In Match-Up services, which allow Merchants who offer dine-in services to allow Customers to find and reserve or join wait lists for tables in dine-in restaurants, including pre-ordering and pre-paying for Meals.  

 

By electing to use the Dine-In Match-Up Channel, Merchant agrees to accept any applicable addendum.  

 

Restaurant Merchants who have dine-in facilities can enroll in the Dine-In Match-Up Channel.  Using the Dine-In Match-Up Channel, Customers can view a list of or search available restaurant establishments and request to reserve a table on a specific day at a specific time, or join a wait-list if a reservation is not available.  Dine-In Match-Up Restaurant Merchants can approve, reject, or wait-list Match-Up requests based on the availability of tables.  Dine-In Match-Up Customers may order from a Restaurant Merchant's menu and pay for their meals through the Dishefs App.  Customer payment information will be used to pay for Meals ordered at the Restaurant, at Customer's option, and to cover applicable fees.   

 

3. DISHEFS OBLIGATIONS

 

3.1 Dishefs Services

 

Subject to the terms and conditions of this Agreement, Dishefs and its affiliates will make available the applicable Dishefs Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a "Location").  Merchant shall provide Dishefs current and accurate Location information throughout the Term of this Agreement.  In connection with the provision of Dishefs Services to Merchant, Dishefs and its affiliates, on behalf of Merchant, may facilitate resolution of complaints by Merchant's customers ("Customers") about Items or Services sold by Merchant through the Dishefs App.  In its sole discretion, Dishefs may refund the fees paid to the consumer if it deems Merchant's suggested response to the dispute unreasonable.  In such case, Merchant will remain responsible for the fees it would owe Dishefs had the transaction been fulfilled to the consumer's satisfaction.  In addition, Dishefs may make available certain Dishefs Tools to Merchant, and Merchant may access and use those Dishefs Tools solely in connection with Merchant's use of the Dishefs Services.  For the avoidance of doubt, as between Merchant and Dishefs, Dishefs will retain sole and absolute control over the Dishefs App (and all elements of the user experience and user interface relating to the Dishefs App), including with respect to: (i) the personalization of the Dishefs App for Customers;(ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Gofers; and (v) adding, removing or otherwise modifying any feature or functionality made available through the Dishefs App to optimize reliability or efficiency on the Dishefs App.

 

3.1.1. Meal Marketplace

 

The Services includes a technology marketplace that provides an online marketplace in which Merchants list, offer, sell and deliver food, and/or pharmacy/convenience Items and Meal orders to the general public, and customers browse and purchase Items or submit Catering Service orders. Users who purchase Meals through the Service are Customer(s), and users who list, prepare and sell Items or Catering Services through the Service are Merchants. A user may be both a Customer and Merchants.  All purchases are made directly (and any contract for purchase and sale is) between the Customer and Merchants. 

 

Dishefs offers a marketplace, it is not itself a merchant. The Service includes pricing assistance and offers delivery, but we are not a party to any purchase or sales transaction. We may also provide the technological means to facilitate the resolution of disputes between our Customers and Merchants, but Dishefs has no control over and does not guarantee (a) the existence, quality, safety, authenticity, or legality of Items offered or sold on the Service; (b) the truth or accuracy of a Merchant's content or listings on the Service; (c) the ability of a Merchants to sell Items through the Service and deliver Items within required delivery windows; (d) the ability of Customers to pay for Items purchased through the Service; (e) that a Customer or Merchant will actually complete a transaction, effectuate trouble-free delivery and shipping, or return  Items through the Service; or (f) that a facility whose services you locate through Dishefs and use is certified or compliant with all applicable laws and regulations or that it will provide any particular level of service.  

 

Each Merchant is solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparation, sale, marketing, and packaging of all Items ordered through Dishefs, and updating details and prices relating to the Meals offered. Each Merchant is solely liable for the quality, safety, and freshness of its products, and Dishefs does not verify the credentials, representations, products, services or prices offered by any Merchants, and does not guarantee the quality of the product or services, or that Merchants or Items comply with applicable laws. Dishefs will not be liable or responsible for any Items provided by Merchants that are a cause of injury or that do not meet a Customer's expectations in any manner.

 

3.1.2 Dine-In Match-Up Marketplace

 

The Services include a technology marketplace in which Restaurant Merchants can make available Dine-In reservation services and waitlist services through the Dishefs Dine-In Match-Up, for the purpose of assisting users in securing dining reservations or joining a waitlist at participating Restaurant Merchants.  At the time a Customer makes an inquiry about the availability of a Dine-In Match-Up, Restaurant Merchant will have the option of confirming the requested reservation time or notifying the customer that a reservation cannot be made and offering the option to join a wait-list.  Customers can then choose to accept the wait-list option, or decline a match-up with Restaurant.  Dine-In Match-Up Customers may also choose to order from Restaurant Merchant's menus and make payments through the Dishefs app in advance.  Customers will store their payment information to use for restaurant items or other fees.  Dine-In Match-Up Customers will agree to allow Restaurant Merchants to charge the stored payment method any agreed-upon No-Show or other fees.  The Dine-In Match-Up app has features to send Customers reminders regarding reservation of wait list services, but Restaurant Merchants should also follow up with Customers one (1) to two (2) hours before the scheduled reservation or wait-listing.  Restaurant Merchants will have the option of displaying a window sticker or placard notifying Restaurant Customers of the availability of the Dishefs Dine-In Match-Up option.  

 

Dishefs offers a marketplace, it is not itself a merchant.  The Services include coordinating dine-in experiences, but we are not a party to any dine-in transaction.  

 

All participants in the Meal Marketplace and the Dine-In Match-Up Marketplace are subject to the terms of any applicable addenda to this Agreement.  

 

3.2 Technology, Not Delivery, Services

 

Merchant agrees neither Dishefs nor its affiliates provide any delivery services. Rather, Dishefs provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant, and (ii) enable delivery people to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services.  Gofers perform their delivery services for (and are paid by) the Customers, and not Merchant.  "MerchantDriver," refers to an employee or contracted delivery person of Merchant.  "Gofer," refers to independent contractors that intend to seek, receive, and fulfill on-demand requests for delivery services using Dishefs' proprietary technology under license from Dishefs or its affiliates.  "Alternate Gofer," may refer to an independent contractor of Dishefs or a Dishefs employee who from time to time provides such delivery services.  "3rd Party Driver" refers to a driver contracted with by a third-party service such as PostMates, DoorDash, UberEats, or InstaCart.  

 

Mobile Services: The Service may include certain services that are available via a mobile device, including (i) the ability to upload content (including Meal options or Merchant or Customer information) to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Dishefs and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dishefs account information to ensure that your messages are not misdirected. You acknowledge and agree that your use of the Service must be in accordance with the usage rules established by your mobile device platform or service provider. 

 

By registering for and using Dishefs and providing your contact information, you are consenting to be contacted by Dishefs or any of its business partners by telephone, text message (which may be automated), email, fax, telephone or any means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. In the event you no longer want to receive communications from Dishefs or its business partners, you agree to notify Dishefs or its business partner directly. You opt-out of various contact methods by emailing support@Dishefs.com. 

 

General Practices Regarding Use and Storage: You acknowledge that Dishefs may establish general practices and limits concerning use of the Service. You agree that Dishefs has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that Dishefs reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Dishefs reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

 

3.3 Conditions of Use

 

User Conduct: You are solely responsible for all descriptions, pictures, listings, information, data, text, music, sound, graphics, video, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") email or otherwise use via the Service.  Below are examples of the kind of content and/or use of the Service that is illegal or prohibited by Dishefs.  Dishefs reserves the right to investigate and take appropriate legal action against anyone who, in Dishefs' sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:

 

a) sell, post or otherwise transmit any content or information relating to a Meal offering or any other content that (i) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (ii) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; (iii) infringes any intellectual property or other proprietary rights of any party; (iv) poses or creates a privacy or security risk to any person; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vi) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "contests," "sweepstakes," or any other form of solicitation; (vii) in the sole judgment of Dishefs, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Dishefs or its users to any harm or liability of any type;

 

b) solicit personal information from anyone under the age of 18, or otherwise attempt to violate the terms of the Privacy Policy or Dishefs' commitment to the protection of children's privacy and safety on the internet;

 

c) harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

 

d) advertise or offer to sell or buy any goods or services other than Items intended to be prepared, sold and purchased through the Service;

 

e) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

 

f) use the Service to request, make or accept a Meal independent of the Service, to circumvent any fees that would otherwise apply to such transaction;

 

g) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

 

h) engage in any activities that violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq.; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction;

 

i) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; 

 

j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service; or

 

k) violate any applicable local, state, national or international law, or any regulations having the force of law.

 

4. MERCHANT OBLIGATIONS

 

4.1 Availability of Items and Services

 

Using the Marketplace Channels, merchants will make Items available for purchase through the Dishefs App ("Available Items") during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety ("Food Safety Standards") and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items ("Alcohol Safety Standards"). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items ("Criteria") and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a "Substandard Item"), Dishefs may, in its sole discretion, remove such Item from the Dishefs App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Dishefs App. 

 

Merchant represents and warrants that all information for Items (including, but not limited to, calorie count, allergen information, and alcoholic content (if applicable)), that is made available through the Dishefs App or its menu is, and at all times will remain, accurate and that the information provided complies with all applicable laws and regulations.  Further, Merchant represents and warrants that additional information it may provide to Dishefs regarding Items, whether or not that information is made available to all Customers, such as CO2 waste value, or expiration date is, and at all times will remain accurate.  Dishefs acknowledges that it will not use any of the information provided for any purpose other than those contemplated by this agreement.  

 

Using the Dine-In Match-Up Channel, Merchant will monitor and respond to inquiries during its normal business hours within one (1) business day of the Inquiry.  As described further in the applicable addenda, Merchant will coordinate with Customer to coordinate a Dine-In reservation or wait-listing.  

 

Merchant represents and warrants that all information for Items and Services offered through the Match-Up Channel, including available hours, calorie counts, and allergen information, that is made available through the Dishefs App is, and at all times will remain, accurate.  

 

All participants in the Meal Marketplace and the Match-Up Marketplace are subject to the terms of any applicable addendum to this Agreement.  

 

4.2 Item Responsibility

 

Merchant acknowledges and agrees that neither Dishefs nor the Gofer or 3rd Party Driver takes title to any Item at any time. Notwithstanding, Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant's control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant's internal standards. Dishefs may, in its sole discretion, deduct reimbursement costs from the payment Dishefs remits to Merchant in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Merchant's retail and food delivery license privileges or as provided for in any applicable laws and regulations.

 

4.3 Devices

 

If Dishefs supplies a tablet or other mobile device ("Device") to Merchant to use in connection with the Dishefs App, Merchant agrees that: 

 

a) Device(s) may only be used for the purpose of accepting orders through the Dishefs App, and 

 

b) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Dishefs and/or its affiliates, and upon expiration or termination of the Agreement, or the absence of all of Merchant's location(s) from the Dishefs App for longer than forty-five (45) days, Merchant will return all applicable Device(s) to Dishefs within ten (10) days, at Merchant's own cost.  If Merchant receives a wireless data plan for the Device, Dishefs may require a weekly reimbursement Merchant for the costs associated with the wireless data plan of each applicable Device. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee ("Damage Fee"). Merchant agrees that Dishefs may deduct the reimbursement or Damage Fee from the Revenue prior to remittance of such Revenue to Merchant.

 

4.4 Use Restrictions

 

In connection with the access to and use of the Dishefs Services and Dishefs Tools, Merchant will not (and will not allow any third party to): 

 

1. reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Dishefs Services (except to the extent applicable law prohibits reverse engineering restrictions); 

 

1. provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Dishefs Tools or Dishefs Services (except as otherwise authorized by Dishefs); or 

 

1. possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Dishefs Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Dishefs App to directly or indirectly compete with Dishefs or its affiliates or the Dishefs Services. 

 

4.5 Item Restrictions

 

The following restricted Items may not be featured or sold using the Dishefs App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species, tobacco products or related products containing nicotine, or any items that Merchant does not have permission to offer. Dishefs may remove from—or otherwise limit your ability to post to—a Merchant's Dishefs menu any Items Dishefs deems prohibited or inappropriate. For clarity, alcohol is only permitted on the Dishefs App if Merchant has agreed to Dishefs' separate Alcohol Order Form for specified states and through specific Sales Channels. Dishefs may restrict the sale of Items Dishefs App based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery). 

 

4.6 Gratuities

 

For the sale of Items via the Non-Delivery Channel and MerchantDriver Channels, unless otherwise selected by Merchant, Merchant agrees to allow Customers to provide gratuities through the Dishefs App. Dishefs shall remit to Merchant the full value of any gratuities provided by Customers. It is the sole responsibility of the Merchant to comply with all applicable laws (including tax, gratuity, Social Security and employment laws where applicable) regarding the distribution of any gratuities. 

 

4.7 Merchant's Facilities

 

In addition to the foregoing conduct restrictions, to the extent you are a Merchant, you represent and warrant that your use of the Services to market, advertise and sell Meals, including through Catering Services, does not violate any applicable federal, state, municipal, or local law or regulation.  You should confer with your legal advisor regarding laws and regulations in your state.  Dishefs is not liable, and will be held harmless for any consequences that may arise from your non-compliance with applicable laws and regulations in your state, municipality or locality.  

 

If you are a Personal Chef, in addition to the requirements of this Agreement and of this Section 4.7, you agree to comply with the terms of the Personal Chef Addendum and any other applicable addenda or terms specific to Personal Chefs. 

 

4.8 Ingredients and Allergens

 

In addition to any other required Item information, for any particular Meal and related content posted using the Service, a Merchant shall provide a comprehensive list of ingredients contained in or otherwise used to prepare the Meal, including any known allergens.  Dishefs is not responsible for the accuracy of the information and labeling of Meals delivered to customers. 

 

Customers should be advised that Meals, including those provided through Catering Services, may be prepared in facilities using the same equipment that is used to prepare Meals containing other allergens even if the allergen is marked as being absent from the food.  Dishefs shall not be liable for Merchant's failure to provide such information, nor any illness, health problem, or other damages that may result from any order or consumption of any Meals and related items purchased through the Service.  

 

4.9 Marketplace Risk

 

Dishefs is not affiliated with or endorsed by any grocery retailers, farmer's market associate, Personal or professional Chef, restaurant or other meal preparation service made available through the Service. Beyond its capacity as a marketplace and technology platform, Dishefs is not involved in any transaction between Customers and Merchants, and does not act as a Customer, Merchant (or affiliate of a Customer or Merchant) or broker with respect to any transactions.  There are risks that you assume when dealing with other users (including those who may be acting under false pretenses) and all of these risks are borne by you, and not Dishefs.  We encourage you to use the various functionalities of the Service (e.g., Merchants profiles, meal options, and user reviews) to help evaluate the user with whom you are dealing.

 

4.10 Merchants as Independent Contractors

 

Users of the Service acting in the capacity of a Merchant do so on behalf of a legal entity or in their personal capacity, as an independent contractor and not as an employee of Dishefs.  As a Merchant, you agree that: (i) you will accept any directions issued by Dishefs pertaining to the goals to be attained and the results to be achieved by Merchants generally, but you shall be solely responsible for the manner and hours in which your services are performed; (ii) you are responsible for and will comply with all applicable laws and registration requirements, including those applicable to independent contractors and maximum working hours regulations; (iii) these Terms do not create an association, joint venture, partnership, franchise, or employer/employee relationship between you and Dishefs, or you and a Customer; (iv) you will not represent yourself as an employee or agent of Dishefs or any Customer; (v) you will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and (vi) you are not eligible to recover contributor's compensation benefits in the event of injury. As a Merchant, you will not engage a Customer in any way that may jeopardize your status as an independent contractor.  

 

Dishefs will make available to Gofers, Dishefs-logoed t-shirts, accessories, bags and other merchandise.  Wearing or using such merchandise does not imply and should not be construed to mean that the person wearing it is in any way considered to have an employer/employee relationship with Dishefs.  Further, no person wearing or using the merchandise will represent themselves as an employee or agent of Dishefs or any Merchant, and will make no statements purporting to bind or commit Dishefs or any Merchant to any conditions or agreements.  If a Gofer uses the Gofer App in the course of their employment and the employer provides such logoed merchandise, these same terms apply.  

 

Dishefs does not control the behavior of users of the Service or the information or User Content (defined below) provided by other users.  As a result, Dishefs does not guarantee or endorse the legality, authenticity, quality, or safety of any Items or Services offered or sold, the truth or accuracy of any Listings, or the ability of Merchants to sell Items, of Customers to buy Items, of Merchants to offer Services, or Customers to use Services.  Dishefs reserves the right to delay the completion of any transaction for a reasonable period of time for purposes of fraud detection and otherwise protecting Dishefs and its users from illegal or wrongful activities or other violations of these Terms.

 

4.11 Special Notice for International Use

 

Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. 

 

4.12 Commercial Use

 

Unless otherwise expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Dishefs App or Services, use of the Dishefs App or Services, or access to the Dishefs App or Services. 

 

5. FEES AND TAXES

 

Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, Fees shall be calculated as described in the most current https://Dishefs.com/fee-policy (the "Fee Policy"). Unless otherwise stated, all fees are quoted in U.S. dollars.  In the case of a question as to the most-current Fee Policy, the policy posted to the website at the link above will control.  

 

As pertains to all transactions contemplated by this Agreement, Items or Services purchased by and/or delivered to Customers in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes required to be collected on the sales of the Items or Services of a particular location ("Taxes").  The amount of Taxes is based on a number of factors, including but not limited to a Customer's designated delivery address, and/or the location of the Merchant.  Customers are responsible for paying to a Merchant the applicable purchase price for a purchased Items, as well as any delivery costs and paying applicable Taxes associated with the purchase and sale of any Items or Services through the Dishefs system. 

 

Delivery costs and Taxes attributable to the sale of any Items are not included in the listed price for any Items listed by Merchants through the Service but will be displayed to Customers before confirmation of any purchase.

 

Merchants are responsible for paying Dishefs' commission set forth in the Fee Policy as well as their own taxes imposed or measured by such Merchant's net income, net profits, income, profits, and/or revenues associated with the sale of any Items or Services through the Dishefs system.  

 

The basics of the fee structures are as follows:  

 

Marketplace Merchant:

 

Flat Fee based on Term selected and/or Percentage of Sale (Varies Based on Delivery or Pickup)

 

Dine-In Match-Up Merchant:

 

Flat Fee based on Term selected + ($x per completed reservation/wait list transaction) + Percentage of Sale

 

The above information is intended to be a summarization.  Please carefully review the Fee Policy regarding your specific fees.  

 

In the event that a service contracted for between a Merchant and a Customer cannot be completed for sudden, unforeseen reasons out of the control of Merchant, such as power outage, weather, or police or civil disturbance, no fees will be due for uncompleted transactions.  This exception will not apply to any circumstance within the control of the Merchant.

 

5.1 Fees; Calculation – Meal Marketplace

 

For each Item sold by Merchant through the Dishefs App, Merchant will pay Dishefs as follows: the Price (as defined below) of all Items that Merchant sells through the Dishefs App (excluding any Sales Tax collected on Merchant's behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item ("Fee").  The Fee does not include any applicable taxes.  Dishefs will remit to Merchant the total Price collected for all Items Merchant sells through the Dishefs App less: (a) the applicable retained Fee; and (b) any refunds given to Customers (such final remitted amount being "Revenue"). All Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item. Subject to the foregoing, Dishefs will typically make such payment on a weekly basis. 

 

5.2 Fees; Calculation – Dine-In Match-Up Marketplace

 

Dine-In Match-Ups.  Restaurant Merchants offering Dine-In Match-Ups will pay Dishefs an upfront subscription fee per month for either a six (6) month or twelve (12) month term.  In addition, Restaurant Merchant will pay a flat fee for each reservation or wait-list transaction successfully completed.  Also, for each Dine-In Match-Up transaction completed through the Dishefs App, Merchant will pay Dishefs a percentage commission of the Meal purchased (excluding any Sales Tax collected on Merchant's behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item ("Fee").  The Fee does not include any applicable taxes.  Dishefs will remit to Merchant the total cost of the meal collected through the Dishefs App less: (a) the applicable retained commission Fee; (b) the applicable flat fee; and (c) any refunds given to Customers (such final remitted amount being "Service Revenue"). All Service Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of receipt of payment for the Service.  Subject to the foregoing, Dishefs will typically make such payment on a weekly basis.  Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as described in the applicable section of the Fee Policy.  

 

Restaurant Merchants will create profiles on the Dishefs app to facilitate matching their needs to a Dine-In Match-Up Customer's choice.  Dine-In Match-Up Customer will pay a small fee to Dishefs to be matched to a potential Restaurant Merchant.  These profiles will include how many days or hours in advance a reservation or wait-listing can be requested and what the Restaurant Merchant's policy is on No-Shows or last minute (with a set number of hours or minutes before the reservation) cancellations.  

 

5.3 Prices, Taxes

 

Dishefs Services connect you with Customers who wish to purchase your Items or Services. You are the "merchant," "retailer," or "seller" of all Items or Services to be made available for sale via the Dishefs App using Marketplace or Match-Up Channels.  As such, you are responsible for determining and setting the price for each Item or Service (the "Price").  The term "Sales Tax" includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Price for each Item or Service excludes separately stated Sales Taxes.  Merchant hereby authorizes Dishefs to collect applicable Sales Taxes on Merchant's behalf based on information provided by Merchant through the Dishefs Tools. The Dishefs Tools' functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Merchant's use of the Dishefs Tools, including any communications with Dishefs, in no way constitutes the provision of legal or tax advice. Merchant shall promptly notify Dishefs if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Merchant are not in accordance with (or in violation of) any law or regulation, Dishefs expressly reserves the right to, upon prior notice to Merchant, remove affected Items or Services from Merchant's menu or offerings on the Dishefs App and/or deactivate Merchant from the Dishefs App.  Legislation commonly known as "marketplace facilitator" laws ("Marketplace Facilitator Laws") requires Dishefs to collect and remit Sales Taxes directly to the taxing authority.  Dishefs will determine the amount of applicable Sales Tax which Dishefs will collect and remit to the taxing authority based on Item or Service descriptions and Additional Information provided by Merchant. 

 

Notwithstanding anything to the contrary in this Section 5.3, Merchant may not make any Item or Service available to Customers through the Dishefs App at a price that is higher than the price that Merchant charges in-store or through other sales avenues for similar Items or Services. Merchant agrees that you will not make an Item or Service available under this Agreement at a price higher than the amount Merchant is charging for similar Items or Services through any comparable platform for the Items or Services offered.  

 

As it is Merchant's responsibility to keep pricing displayed on the Dishefs app current, any discrepancy in the prices made available to the customer through the Dishefs App and Merchant's current pricing for Items ordered shall be borne solely by Merchant.  

 

5.4 Packaging

 

Merchants may choose to purchase packaging materials and/or labels from us for the delivery of Items to Customers.  If purchased, we may charge your credit card or other acceptable payment method you provide.

 

5.5 Appointment of Limited Payment Collection Agent

 

Merchant is solely responsible for providing Dishefs with, and maintaining, accurate bank account information. Merchant hereby appoints Dishefs and its affiliates, as the case may be, as Merchant's limited payment collection agent solely for the purpose of: 

 

1. accepting payment of the Price of Items sold or Services provided by Merchant via the Dishefs App plus any applicable Sales Tax collected on Merchant's behalf, via the payment processing functionality facilitated by the Dishefs Tools; and 

 

1. remitting the Price collected on Merchant's behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant ("Revenue," as defined above).  Further, Merchant agrees that payment collected on its behalf by Dishefs or its affiliates will be considered the same as payment made directly to Merchant.  Merchant agrees that if Merchant does not receive payment from Dishefs or its affiliates, Merchant's only recourse will be against Dishefs and its affiliates. Dishefs and its affiliates may, from time to time, request information from Merchant to confirm Merchant's identity as may be necessary under any applicable compliance obligations before remitting any amounts to Merchant and may refuse to process amounts owed to Merchant if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant.  Merchant agrees that Dishefs and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable addendum or this Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, Dishefs may adjust the remittance of Revenue collected on Merchant's behalf for reasons including failure to fulfill an Item as ordered, making a correction on an Item, or failing to provide a Service, or not providing a Service as agreed upon.  Merchant may identify any disagreements in connection with such adjustments through the Dishefs Tools.  Dishefs and its affiliates reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Revenue collected on Merchant's behalf, by debiting the payment method or Merchant's bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Dishefs and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items or Services that Customers did not place) or Customer complaints, Dishefs and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Dishefs and its affiliates express consent to adjust payments collected on Merchant's behalf as set forth in this Section. 

 

5.6 Payments

 

Subscriptions: Customers may pay for Items or Services using credit cards or other payment methods as may be determined by Dishefs from time to time. Merchants will be prompted to provide bank account details to us so that we may facilitate transfer of payments received from Customers purchasing Items or Services.  If you submit your payment information through the Service, then you authorize Dishefs to store that payment information and charge your payment method for any Item or Service you purchase. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. 

 

If you purchase Marketplace or Match-Up Services on a recurring or subscription basis, you hereby authorize Dishefs to bill your payment instrument in advance on a periodic basis in accordance with the terms of any particular subscription order until you terminate or pause such order or terminate your account.  Recurring or subscription-based purchases can only be terminated on 30 (thirty) days' notice to Dishefs.  You further agree to pay any charges so incurred. If you dispute any charges you must let Dishefs know within fourteen (14) days after the date that Dishefs charges you.

 

5.7 Fee Modifications

 

We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Dishefs Service. Any change will be effective upon posting of a revised Fee Policy.  Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the changed amount.

 

5.8  Additional Information

 

Dishefs may, from time to time, require Merchant to provide certain additional information ("Additional Information") pertaining to particular Items, particular sales of Items, or descriptions of Services, for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations, or to provide Merchant with information services. Additional Information may include, but is not limited to: Universal Product Codes ("UPCs"), Global Trade Item Numbers ("GTINs"), Stock Keeping Units ("SKUs"), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, CO2 waste value, expiration date, inclusion of utensils, method of preparation (e.g., sliced), identity of preparer, whether the item is "ready-to-eat," the items intended use, equipment available, hours of availability, etc. Merchant is solely responsible for providing requested Additional Information to Dishefs in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by Dishefs, Dishefs expressly reserves the right to temporarily remove affected Items or Services from Merchant's menu of Items or Services on the Dishefs App until such Additional Information is received.

 

5.9 Third-Party Distribution Channels

 

Dishefs offers Software applications that may be made available through the Apple App Store, Android Market or other distribution channels ("Software Distribution Channels"). If you obtain such Software through a Software Distribution Channel, you may be subject to additional terms of the Software Distribution Channel. These Terms of Service are between you and us only, and not with the Software Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.

 

With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, "Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

 

1. Dishefs and you acknowledge that these Terms of Service are concluded between Dishefs and you only, and not with Apple Inc. ("Apple"), and that as between Dishefs and Apple, Dishefs, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

 

1. You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.

 

1. Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.

 

1. Dishefs and you acknowledge that Dishefs, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software.  

 

1. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

1. You represent and warrant that you have in place anti-money laundering procedures which comply with applicable law where you operate.  You agree to notify Dishefs of any suspicious activity of which you become aware relating to transactions involving Dishefs. 

 

1. If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to support@dishefs.com.

 

6. REPORTING

 

Dishefs may provide Merchant aggregate information regarding the number of Items picked up by Merchant-Drivers, Gofers, or 3rd Party Drivers, Items or Services sold by Merchant to Customers, and information regarding number of dine-in transactions.  Dishefs will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, or Service provided, the reason for the refund and any other information Dishefs is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Dishefs may share Merchant's transactional data regarding ordered Items or Services, including sales data, with Merchant's parent company or Franchisor.

 

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES

 

7.1 Marks

 

Subject to this Agreement, each party hereby grants to the other party (and, in the case of Dishefs, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party's respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Dishefs Services. For purposes of this Agreement, the term "Marks" will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party's Marks by the other party will be in the form and format specified or approved by the owner of such Marks. Other than as specifically set forth in this Agreement, neither party will use the other party's Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant's Marks by Dishefs or its affiliates in connection with making Items available through the Dishefs App in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of Dishefs' Marks will conform to the current version of Dishefs Brand Guidelines. All goodwill related to the use of a party's Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. 

 

Without limiting anything in the Agreement, Merchant represents and warrants that Merchant's Marks do not infringe, misappropriate, or otherwise violate any third party's intellectual property or other proprietary rights. Merchant agrees that Dishefs or its affiliates may remove Merchant's Marks from the Dishefs App if Dishefs or its affiliates receive notice or otherwise reasonably believe that such Merchant's Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. 

 

If you are blocked by Dishefs from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Dishefs, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Dishefs.

 

The Dishefs name and logos are trademarks and service marks of Dishefs (collectively the "Dishefs Trademarks"). Other Dishefs, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Dishefs. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Dishefs Trademarks displayed on the Service, without our prior written permission in each instance. 

 

7.2 No Development

 

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA, OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. 

 

Any development activities relating to any technology, content, media, or other intellectual property must be the subject of a separate written agreement between Dishefs and Merchant prior to the commencement of any such activities.

 

7.3 Marketing

 

Dishefs and its affiliates may showcase the availability of Merchant's Items through the Dishefs App by various promotional activities (e.g., through social media channels, websites, advertisements, or blogs).  Dishefs (or a party designated by Dishefs acting on Dishefs' behalf) may take video and still images for marketing and other efforts related to the Dishefs App ("Dishefs Pictures"). Merchant agrees that Dishefs Pictures (including all intellectual property rights therein) are and will remain the sole and exclusive property of Dishefs or its affiliates. Additionally, Merchant may provide videos, still images, or other materials to Dishefs or its affiliates ("Merchant Marketing Materials") for use in connection with the display of Merchant's Items on the Dishefs App or the marketing and promotion of Dishefs and the availability of your Items through the Dishefs App. Merchant hereby grants Dishefs and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant's Items and other promotional activities relating to the Dishefs Services. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party's intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third-party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Dishefs to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Dishefs or its affiliates may remove Merchant Marketing Materials from the Dishefs App if Dishefs or its affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

 

7.4 Special Offers

 

"Special Offer(s)" means short-term promotions that are available through the Dishefs App to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Dishefs to charge Customers for the post-Promotional value of an Item or Service (not including taxes and applicable fees). Subject to the Dishefs App functionality, Dishefs may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.

 

1. Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Special Offers that Dishefs may make available from time to time, Dishefs hereby authorizes Merchant to create Special Offers that are designed and fulfilled by Merchant ("Merchant Promotion(s)"). Unless otherwise specified by Dishefs, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Dishefs) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below). Dishefs authorizes Merchant to use Dishefs' proprietary, automated, self-service tool located within the Dishefs Tools to create Special Offers ("Promotion Tool"), subject to such Promotion Tool's functionality and technical capability. If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the Tool in such a way that is not intended. Merchant may create a Merchant Promotion by completing and providing Dishefs with a verbal or written promotion schedule ("Promotion Schedule"). If a verbal Promotion Schedule is provided to Dishefs by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Dishefs under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.

 

1. Co-Funded Promotion(s). From time to time, Dishefs may agree to fund a portion of Merchant's Promotion (each, a "Co-Funded Promotion"). For each such Co-Funded Promotion, the parties shall agree to an applicable written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party in relation to such Co-Funded Promotion, including funding obligations; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and Dishefs shall issue an adjustment to Merchant's payout (which shall also be reflected in any payout details report) to account for the amount of the Promotion that Dishefs has agreed to fund, such that the Merchant shall receive the same amount in their Revenue for such order as if a Dishefs-funded portion of the Promotion was not applied to such order.

 

1. Parties' Obligations. The parties' obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule. 

 

1. Merchant's Obligations. Merchant will: (i) honor and fulfill the terms of Special Offers offered by Merchant (solely or jointly with Dishefs) to Customers who have successfully completed their order for Items or Services through the Dishefs App; (ii) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and (iii) upon reasonable request, supply Dishefs with marketing materials, including but not limited to, pictures, graphics, audio, video, and copy, which Dishefs may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live. 

 

1. Dishefs' Obligations. Dishefs will (i) honor and fulfill the terms of Special Offers offered by Dishefs (solely or jointly with Merchant) to Customers who have successfully completed their order for Items or Services through the Dishefs App; (ii) be responsible for the fees associated with the Promotion up to the amount Dishefs has agreed to fund such Promotion; (iii) upon reasonable request, supply Merchant with marketing materials, including but not limited to, pictures, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the Dishefs App; and (iv) use good faith efforts to provide Merchant with reasonable information regarding Special Offers, which may include, without limitation, the amount Merchant spent on Special Offers and the number of Items sold in connection with Special Offers.

 

1. Fee on Promotion Orders.  Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the Dishefs App, the percentage fee paid by Merchant to Dishefs shall be calculated based on the total Retail Value of the order less the Merchant-funded portion of such Promotion applied to that order.  For the sake of illustrative purposes, if an item normally sold for $10, and a 20% off promotion is offered, Merchant's part will be $1 and Dishefs part will be $1 of the $2 being discounted (so the Co-Funded Promotion is funded 50% by each party).  In this scenario, Merchant's fee paid to Dishefs for the transaction would be calculated on the amount of $9 (the pre-Promotion price less its part of the discount.  Depending on the type of promotion or credit used, it may reduce the amount of taxes that apply to a Customer's order.

 

1. Out of Dishefs App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the Dishefs App. If a Promotion Schedule authorizes Merchant to market a Promotion out of the Dishefs App, all such marketing materials will be subject to Dishefs' prior review and written approval, which shall not be unreasonably withheld.

 

7.5 Publicity

 

Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

 

8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK

 

8.1 Definition

 

"Proprietary Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party ("Discloser") to the other ("Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant's Items to Customers through the Dishefs App and the Terms and conditions of this Agreement. Proprietary Information will not include information that:

 

1. was previously known to the Recipient without an obligation of confidentiality; 

 

1. was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or 

 

1. is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser's Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient's affiliates and Recipient's and Recipient's affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a "Representative"). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser's Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Dishefs and its Affiliates to disclose the terms of this Agreement to Merchant's franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser's election) any and all materials or documents containing the Discloser's Proprietary Information, together with all copies thereof in whatever form. 

 

8.2 Privacy

 

Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by Dishefs and in Merchant's possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by Dishefs solely by using the software and tools provided by Dishefs. "Personal Data" means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered "personal data" or "personal information" under the applicable law.

 

8.3 Passwords

 

Merchant is responsible for maintaining the integrity of information related to Merchant's access and use of the Dishefs Tools and related Dishefs Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party. Merchant agrees to (a) immediately notify Dishefs of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Dishefs will not be liable for any loss or damage arising from your failure to comply with this Section.

 

8.4 Data Re-Identification Restriction

 

Without limiting any other provision of this Agreement, including any provision in this Section 8, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose. 

 

8.5 Third-party Material

 

Under no circumstances will Dishefs be liable in any way for any content or materials of any third parties (including users), including, but not limited to, any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Dishefs does not pre-screen content, but that Dishefs and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Dishefs and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Dishefs, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. 

 

8.6 User Content Transmitted Through the Service

 

With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Dishefs and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. 

 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to Dishefs are non-confidential and non-proprietary, and Dishefs will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

 

You acknowledge and agree that Dishefs may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Dishefs, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

8.7 Copyright Complaints

 

Dishefs respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Dishefs of your infringement claim in accordance with the procedure set forth below.

 

Dishefs will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Dishefs' Copyright Agent at support@dishefs.com (Subject line: "DMCA Takedown Request"). You may also contact us by mail at: 

 

100 Waxhaw Pkwy, P. O Box 93

Waxhaw, NC 28173

 

To be effective, the notification must be in writing and contain the following information: 

 

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 

 

1. a description of the copyrighted work or other intellectual property that you claim has been infringed; 

 

1. a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; 

 

1. your address, telephone number, and email address; 

 

1. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; 

 

1. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. 

 

8.8 Counter-Notice

 

If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent: 

 

1. your physical or electronic signature; 

 

1. identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; 

 

1. a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and 

 

1. your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Western District of North Carolina and a statement that you will accept service of process from the person who provided notification of the alleged infringement. 

 

If a counter-notice is received by the Copyright Agent, Dishefs will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.

 

8.9 Repeat Infringer Policy

 

In accordance with the DMCA and other applicable law, Dishefs has adopted a policy of terminating, in appropriate circumstances and at Dishefs sole discretion, users who are deemed to be repeat infringers. Dishefs may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

8.10 Third-Party Websites

 

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Dishefs has no control over such sites and resources and Dishefs is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Dishefs will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Dishefs is not liable for any loss or claim that you may have against any such third party.

 

8.11 Social Networking

 

Other Third Parties: From time to time, we may allow you to register for the Service using third-party services and otherwise enable various third-party services (e.g., PostMates, DoorDash, UberEats, or InstaCart) to be directly integrated into your Dishefs experience. By directly integrating these services into the Service, we make your online experiences richer, easier and more personalized. To take advantage of these features, we may ask you to register for or log into such services on the websites of their respective providers. By enabling third-party services within the Service, you are allowing us to pass your log-in information to these service providers for this purpose. For more information about the implications of activating these third-party services and Dishefs' use, storage and disclosure of information related to you and your use of such services within the Service (including your friend lists and the like), please see our Privacy Policy at https://www.Dishefs.com/privacy. However, please remember that the manner in which third-party services use, store and disclose your information is governed solely by the policies of such third parties, and Dishefs shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service that may be enabled within the Service.

 

In addition, Dishefs is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third-party services. As such, Dishefs is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party service. Dishefs enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.

 

8.12 Feedback

 

Merchant may, but is not obligated to, provide or otherwise make available to Dishefs or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Dishefs and its affiliates' products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Dishefs or its affiliates, Merchant hereby grants to Dishefs and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sub-licensable right to use and otherwise exploit such Feedback. 

 

9. RATINGS

 

Merchant acknowledges and agrees that, after receiving Items or Services, a Customer may be prompted by the Dishefs App to provide a rating of such Item or Service and, at such Customer's option, to provide comments or feedback related to the Customer's experience with Merchant and the relevant Item or Service on the Dishefs App ("Customer Feedback"). Dishefs and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Dishefs and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that Dishefs and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Dishefs and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual's name or other Personal Data, violate any privacy or other applicable laws, or Dishefs or its affiliates' content policies.

 

10. REPRESENTATIONS AND WARRANTIES

 

10.1 Representations and Warranties. 

 

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

 

10.2 Disclaimer

 

Except as set forth herein, neither Dishefs nor Merchant makes any representations, and hereby expressly disclaims all warranties, express or implied, regarding its services or products or any portion thereof, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.  

 

11. INDEMNITY

 

11.1 Indemnified Claims

 

Each Party ("Indemnifying Party") will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorneys' fees) (collectively, "Losses") with respect to any third-party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party's representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party's intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Dishefs Indemnified Parties from and against any and all Losses with respect to any third-party claim arising out of or related to: (A) Merchant's violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Merchant's failure to provide accurate and complete descriptions or Additional Information for Items or Services; (C) Sales Tax applicable to all sales of non-Restaurant Items (regardless of whether such Items are sold through a separate Additional Items Storefront); or (D) any claim related to Merchant's failure to perform obligations contained in the this Agreement regarding Alcohol Sales, if applicable, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Dishefs or its employees or agents.  

 

11.2 Procedure

 

We will provide you with a prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at the Indemnifying Party's expense.

 

12. LIMITS OF LIABILITY

 

Except for liability arising from a party's gross negligence, willful misconduct, indemnification obligations or a breach of confidentiality obligations: (a) in no event will either party be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business of merchant or any third party arising out of this agreement, or loss or inaccuracy of data of any kind, whether based on contract, tort, or any other legal theory, even if such party has been advised of the possibility of such damages; and (b) each party's total cumulative liability of each and every kind under this agreement will not exceed One Hundred Thousand Dollars ($100,000). The foregoing limitation of liability and exclusion of certain damages will apply regardless of the success or effectiveness of other remedies.

 

13. INSURANCE

 

During the Term and for one (1) year thereafter, Merchant will maintain Commercial General Liability and, if required by law, Workers' Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In, addition, regarding Merchant-Drivers, Merchant agrees to maintain Commercial Automobile Liability insurance with limits of One Million Dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies will be written by reputable insurance companies with a Best's policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days' prior written notice to Dishefs. Upon Dishefs' request, Merchant will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of Merchant under this Agreement.

 

Dishefs does not maintain insurance for liabilities that may arise from your use of the Service as either a Customer or Merchant. If you are a Merchant, Dishefs recommends that, in addition to the above requirements, you obtain appropriate insurance to cover the operation of businesses of your type in the geographic area(s) in which you operate.  We recommend that you review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Customers or any third party service.  

 

14. ADDENDA AND SUPPLEMENTAL TERMS

 

Merchant will comply with all applicable then-current Addenda.  In addition, supplemental terms may apply to Merchant's use of the Dishefs Services and the Dishefs Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, the "Addenda"). Addenda are in addition to, and will be deemed a part of, the Agreement. Addenda will prevail over the Agreement in the event of a conflict. Dishefs will use good faith efforts to provide Merchant with written notice of any material updates to the Addenda, and, if Merchant does not agree to comply with the terms of any such update, Merchant may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Dishefs Services and Dishefs Tools. By continuing to use the Dishefs Services or the Dishefs Tools, Merchant will be deemed to accept the Addenda. Notwithstanding anything to the contrary, the terms and conditions of Dishefs then-current Privacy Policy, currently available at https://privacy.Dishefs.com/policy, will apply to Dishefs' collection, use and processing of Personal Data. 

 

15. TERM AND TERMINATION

 

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date ("Initial Term") and will automatically renew for successive one (1) year periods (each, a "Renewal Term" and together with the Initial Term, the "Term"). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days' prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving sixty (60) days' prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Dishefs may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A "Brand Matter" means an event involving Merchant that, in Dishefs' reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code.  All payment obligations will survive the expiration or termination of this Agreement.

 

16. NOTICE

 

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Dishefs should be provided to [DE NEWCO?] Attn: Legal, [DISHEFS ATTORNEY STREET ADDRESS AND EMAIL], with a copy to [DE NEWCO], Attn: Legal – [100 Waxhaw Parkway, Waxhaw, NC, 28173, Email: support@dishefs.com.  Notices to Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to Dishefs will be served on Dishefs' registered agent for service of process. The name and current contact information for the registered agent in each state is available by contacting [DISHEFS ATTORNEY].

 

17. DISPUTE RESOLUTION AND ARBITRATION

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS

 

17.1 Arbitration

 

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the "JAMS Rules"), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree: 

 

1. The Arbitrator's award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction. 
2. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. 
3. The seat, or legal place, of arbitration will be Waxhaw, North Carolina, USA or the JAMS location closest to the complaining party's place of business. 
4. The language to be used in the arbitral proceedings will be English. 
5. The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules. 
6. To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
7. This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
8. Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.
9. Each party shall pay its own proportionate share of Arbitrator fees and expenses plus any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
10. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11. Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of North Carolina.

 

17.2 Termination

 

You agree that Dishefs, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Dishefs believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Dishefs may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of the Terms of Service may be effected without prior notice, and acknowledge and agree that Dishefs may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Dishefs will not be liable to you or any third party for any termination of your access to the Service.

 

If you elect to utilize Dishefs services that include a subscription agreement, you agree to provide Dishefs thirty (30) days' notice of your cancellation of such service.  Your election to terminate such service does not affect Dishefs' rights to termination described above.  

 

17.3 User Disputes

 

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Dishefs will have no liability or responsibility with respect thereto. Dishefs reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

 

17.4 General

 

17.4.1 Entire Agreement.

 

These Terms of Service constitute the entire agreement between you and Dishefs and govern your use of the Service, superseding any prior agreements between you and Dishefs with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. 

 

17.4.2 Governing Law

 

These Terms of Service will be governed by the laws of the State of North Carolina without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Dishefs agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Union County, North Carolina. 

 

17.4.3 Severability

 

The failure of Dishefs to exercise or enforce, at any time or for any period of time, any right or provision or option of these Terms of Service, or the failure of either part to exercise any option herein, will not constitute a waiver of such right or provision or option. 

 

If any provision of these Terms of Service is found by a court of competent jurisdiction or ruling of an arbitrator to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. 

 

17.4.4 Time to File

 

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within sixty (60) days after such claim or cause of action arose, and in no event more than sixty (60) days after the termination of the governing Agreement, or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  

 

17.4.5 Assignment

 

Merchant may not assign this Terms of Service without the prior written consent of Dishefs.  This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by Merchant without the prior written consent of Dishefs.  Upon written notice to Dishefs, Merchant may assign or transfer this Agreement (a) to an affiliate of Merchant, or (b) in connection with the sale of all or substantially all of Merchant's equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Dishefs, access to historical reporting information about issues related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant's Location(s), the parties to that transaction will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the Dishefs App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will insure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. 

 

Dishefs may assign or transfer this Terms of Service, in whole or in part, without restriction.  

 

17.4.6 Section Titles

 

The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. 

 

17.4.7 Notice

 

Notices to you may be made via either email, regular mail, or nationally-recognized overnight courier service. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

 

17.4.8 Your Privacy 

 

At Dishefs, we respect the privacy of our users. For details, please see our Privacy Policy located at https://www.Dishefs.com/privacy. By using the Service, you consent to our collection and use of personal data as outlined therein.

 

17.4.9 Waiver of Jury Trial

 

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party:

 

1. certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver; and 

 

1. acknowledges that it and the other party hereto have been induced to enter into this Agreement.

 

18. DIVERSITY AND INCLUSION

 

A Dishefs Merchant or Customer may not, under any circumstances, refuse to serve, discourage dealings with, or alter the terms and conditions, pricing, or limitations of any of its dealings with any other party, including any customer, employee, contractor or other individual based on any of the following factors:

 

Race

Color

Ethnicity

National Origin

Religion

Sexual Orientation

Gender Identity

Marital Status

Pregnancy

Age (except in limited circumstances where prescribed by local laws or regulations or in the case of programs that may target beneficial services for specific participant groups, as agreed upon between Dishefs and Merchant)

Disability (except in limited circumstances where prescribed by local laws or regulations)

 

There may be limited circumstances where limitations can be placed on services transacted for such as handling of alcohol, or special considerations for use of service animals.  Dishefs considers the gender of individuals to be what they identify and/or designate on their profiles, and we expect the Dishefs community to do the same. This includes respecting the pronouns (he/him, she/her, they/them, etc.) with which any users within the community identify themselves. 

 

Merchant acknowledges and agrees that upon Dishefs' receipt of evidence of Merchant's discrimination under any of these categories, Dishefs will have the right to immediately terminate this Agreement following notice to Merchant.

 

19. ADDITIONAL TERMS

 

The territory of this Agreement is the United States ("Territory"), and all payments issued under this Agreement must be in U.S. Dollars. 

 

Merchant agrees to receive calls, SMS messages and other communications, including those made available by auto-dialer, sent by or on behalf of Dishefs or its affiliates. 

 

In this Agreement, "including" means "including, without limitation," and examples are illustrative and not the sole examples of a particular concept. 

 

Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a "Force Majeure Event").  The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. 

 

Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. 

 

Each party will be solely responsible for its employees and contractors used in connection with such party's performance obligations under this Agreement. 

 

This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to such subject matter hereof. 

 

This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

 

We reserve the right, at our sole discretion, to change or modify portions of these terms of service at any time. 

 

20. NOTICE FOR NORTH CAROLINA USERS

 

Under North Carolina General Statute, users of the Service from North Carolina are entitled to the following specific consumer rights notice:  The Consumer Protection Division of the Office of the North Carolina Attorney General may be contacted in writing at: 

 

North Carolina Consumer Protection Division

114 West Edenton Street

Raleigh NC  27603

 

or by telephone at (919) 716-6400 or online at https://ncdoj.gov/file-a-complaint/. You may contact [DE NEWCO] in writing at 100 Waxhaw Pkwy., Waxhaw, NC 28173, or by telephone at (415) 832 -9561.

 

21. QUESTIONS? CONCERNS? SUGGESTIONS? 

 

Please contact us at support@dishefs.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.

 

Date of Last Revision:  _________, 2023

 

 

RESTAURANT ADDENDUM

 

Dishefs restates here that if Merchant chooses to use the MerchantDriver Channel of delivery, all Terms pertaining to the use MerchantDrivers found elsewhere in this Agreement will apply to all relevant transactions coordinated through Dishefs.  

 

Dishefs restates here that if Merchant chooses to use the Gofer/3rd Party Drivers Channel of delivery, all Terms pertaining to the use of Gofers or 3rd Party Drivers found elsewhere in this Agreement will apply to all relevant transactions coordinated through Dishefs.  

 

 

PERSONAL CHEF ADDENDUM

Includes Chefs Working from any
Commercial Kitchen
as defined elsewhere in this Agreement 

 

Generally, but not exclusive of any applicable laws and regulations in the state, municipality, or locality, in which you offer your Items or Services through the Channels using the Dishefs App and the Services, the following requirements are noted:  

 

a) You may only operate/use a home-based commercial facility or commercial kitchen in a city or county where the governing body has authorized by ordinance or resolution the permitting of microenterprise home kitchen operations;

 

b) You have submitted to the local enforcement agency written standard operating procedures that include all information required by any applicable enforcement agency.  

 

c) You are able to provide to proof of passing, any applicable approved American National Standards Institute ("ANSI") accredited food safety certification examination, (ii) passed any applicable inspection and (iii) received any applicable permit to operate issued from the local enforcement agency;

 

d) Your permit to operate operate/use home-based commercial facility or commercial kitchen operation received from the local enforcement agency remains valid and in full effect;

 

f) You have entered (and updated when necessary) the home-based commercial facility or commercial kitchen in the dedicated field provided by us during the sign-up process;

 

g) The meals you serve comply with any applicable laws and regulations regarding timeliness of serving, storage, restrictions on ingredients, number of meals prepared per day, etc.  

 

Further, if you operate as a Personal Chef, or otherwise through the Additional Items Storefront, you agree that you are an independent contractor, and in no way will be construed to be an employee of Dishefs.  You will not represent yourself as an employee or agent of Dishefs or any Customer, you will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and you are not eligible to recover contributor's compensation benefits in the event of injury. As a Personal Chef, you will not engage a Customer in any way that may jeopardize your status as an independent contractor.  

As a Personal Chef, you will be required do the following:  

a) Maintain product liability insurance; 

b) Be able to provide verification of your knowledge of and familiarity with the food Codes relevant to your operation in the area(s) in which you operate the business which uses the Dishefs Application and the Services; 

c) Comply with the direction of the kitchen manager/person in charge regarding food safety oversight when using any kitchen space coordinated through the Dishefs Kitchen Match-Up Channel; and 

d) Be able to provide verification of your compliance with food safety standards (including absence of specified illnesses) when using any kitchen space coordinated through the Dishefs Kitchen Match-Up Channel.

e).     This binding agreement between Dishefs Kitchen ("Dishefs") and Hosts and Guests mandates exclusive use of the Dishefs application for all rental transactions. Hosts are expressly prohibited from bypassing Dishefs to enter rental agreements with Guests introduced through the platform. Hosts acknowledge Dishefs' entitlement to service fees, and any attempt to circumvent fees constitutes a material breach. Both Hosts and Guests consent to Dishefs secret shopper inspections, and violations related to fee circumvention may result in forfeiture of the Guest's security deposit, credited to Dishefs without refund. Such violations may lead to immediate removal from the Dishefs platform. By using Dishefs, both Hosts and Guests unequivocally affirm their agreement to these terms and consent to the dispute resolution process specified in Section [4] of this agreement, outlining the procedure for resolving disagreements and disputes arising from this agreement. Continued use of the platform signifies acceptance of the forfeiture of the security deposit and other consequences outlined herein.

Dishefs will reimburse Chefs costs associated with the successful completion of a certification examination.  In exchange, Chefs will agree to a minimum number of transactions using the Dishefs App in a set period of time following certification.  

 

Dishefs restates here that all sections of this agreement relating to the use of Dishefs services regarding delivery services apply to Personal Chefs as Merchants and in some cases may apply to Personal Chefs as Customers.  

 

 

DINE-IN ADDENDUM

 

Restaurants that utilize the Dine-In Match-Up service are subject to all sections of this agreement pertaining to Restaurant operations.  

 

Each Merchant is solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the listing, provision and/or delivery, or acceptance of reservations for all dine-in services coordinated through Dishefs.  Merchants are solely responsible for updating details relating to the Dine-in Match-Ups offered.  Each Merchant is solely liable for the quality, safety, cleanliness, and adherence to all applicable laws, rules and regulations of the dine-in services provided by coordination through Dishefs and Dishefs does not verify the credentials, representations, products, or services offered by any Merchants, and does not guarantee the quality of the product or services, or that Merchants comply with applicable laws.  Dishefs will not be liable or responsible for any Items provided by Merchants that are a cause of injury or that do not meet Customer's expectations in any manner.  

 

Dishefs is not responsible for compensation of Merchant or Customer in the event of any failure of Merchant or Customer to comply with the terms of the Dine-In transaction, including no-shows, last minute cancellations, and the like.  

 

Dishefs will not be liable to the Merchant, Customer, or any other third party (such as a landlord or management company) if the Merchant or Customer using the Dine-In Merchant Channel does not have the necessary authority referred to anywhere in this agreement and the Merchant and Customer agree to indemnify, defend and hold Dishefs harmless from and against any claim or loss it may suffer as a result of a breach of the warranty, or any other provision of this Agreement.

 

For the sake of completeness, Dishefs restates here that if Restaurant Merchant chooses to use the Dine-In Match-Up Channel, all terms pertaining to Dine-In Match-Ups found elsewhere in this Agreement apply to transactions coordinated through Dishefs' Dine-In Match-Up Channel.  Also, Dishefs restates here that all terms pertaining to Restaurant Merchants found elsewhere in this Agreement apply to transactions coordinated through Dishefs' Dine-In Match-Up Channel.  

 

 

GOFER/3RD PARTY DRIVER ADDENDUM

 

Gofers supply delivery services to Merchants who may sell Items through the Gofer Sales Channel, whereby Merchant's Items are presented in the Dishefs App to Customers who access and request on-demand delivery services provided by Gofers as defined elsewhere in this Agreement.   

 

3rd Party Drivers may, at Merchant's option, supply delivery services to Merchants who may sell Items through the Gofer/3rd Party Driver Sales Channel, whereby Merchant's Items are presented in the Dishefs App to Customers who access and request on-demand delivery services provided by 3rd Party Driver as defined elsewhere in this Agreement.   

 

Sales made using either Gofers or 3rd Party Drivers will be considered made through the "Gofer/3rd Party Driver Sales Channel."  

 

Gofers and 3rd Party Drivers will use the Dishefs app to receive information regarding Gofer Runs and 3rd Party Drive Runs and perform the delivery agreed upon between Merchant and Gofer/3rd Party Driver utilizing that information.  

 

Gofers and 3rd Party Drivers are required to comply with all applicable laws, rules and regulations.

 

"Gofer," or "3rd Party Driver," refers to the individual who performs delivery functions for Merchants such as, but not limited to, restaurants, grocery retailers, farmers' market seller, restaurant chefs, food truck chefs, or personal chefs.  

 

No Gofer or 3rd Party Drive will in any way be considered an employee of Dishefs and will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and will not be eligible to recover contributor's compensation benefits in the event of injury.

 

Gofers will maintain Automobile Liability insurance with limits of ____$500,000___ ($__1mm__________) per person/_____________________ ($____________) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles used in performing Gofer delivery services.  All policies will be written by reputable insurance companies.  Such insurance will not be canceled or materially reduced without thirty (30) days' prior written notice to Dishefs.  Upon Dishefs' request, Gofers will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of Gofers under this Agreement.

 

3rd Party Drivers will maintain insurance as dictated by the 3rd party service which they contract with and/or applicable local laws and regulations.  

 

Dishefs does not maintain insurance for liabilities that may arise from your use of the services of a Gofer or 3rd Party Driver.  If you are a Gofer, Dishefs recommends that, in addition to the above requirements, you obtain appropriate insurance to cover the operation of businesses of your type in the geographic area(s) in which you operate.  We recommend that you review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy. 

 

Dishefs will not be liable to the Gofer or 3rd Party Driver, or to any other third party (such as a management company) if the Gofer or 3rd Party Drivers does not have the necessary authority referred to anywhere in this agreement.  The Gofer or 3rd Party Driver agrees to indemnify, defend and hold us harmless from and against any claim or loss we may suffer as a result of a breach of the warranty, or any other provision of this agreement.