Zuppler’s has developed proprietary food ordering software that is made available to Restaurant or use on its Website (“Software”) and is the copyrighted work of Zuppler. Your use of the software is governed by the terms of this agreement (“License Agreement”). You may not install, reinstall, remove or modify any software that is accompanied by or includes this license agreement. Zuppler hereby grants to Restaurant a personal, nontransferable, non-exclusive license to use the software for online ordering powered by Zuppler and for no other purpose. Please note that all software languages, including without limitation HTML, Java, Python, Ruby on Rails, CSS, Ajax, C++ and Active X controls (the “Code”), is owned by Zuppler. Any reproduction or redistribution of the software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the software and any accompanying documentation and/or technical information are subject to applicable export control laws and regulations of the U.S.A. You agree not to export or re-export the software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions.
The Restaurant acknowledges and agrees that the end-user customers of the Zuppler Software Services (the “Customers”) may place orders with the Restaurant through the Restaurant Website or other media or media channels, devices, software, or technologies as may be included within the Zuppler Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant Menu (the “Customer Orders”). Upon placement of such a Customer Order, Zuppler will send written confirmation to the Restaurant via the tablet computer provided to the Restaurant from Zuppler, or, the fax number, email address, or currently in the Restaurant’s Website account information or via such other delivery method as Zuppler and the Restaurant may agree upon (the “Order Confirmation”), and which Order Confirmation contains a confirmation code or other method for delivering the Customer Order to the Restaurant.
The Restaurant agrees to provide, and thereafter maintain and promptly update for so long as the Restaurant this Agreement is effective, true, accurate, current and complete information regarding the Restaurant as is requested during the Restaurant’s registration process (the “Registration Process”).
As part of the total Zuppler Restaurant Services package, Zuppler agrees to perform specific local and Internet marketing activities to promote the Restaurant and the Restaurant’s menu; provided, however, that such marketing activities will be determined in Zuppler’s sole and absolute discretion and the marketing activities may be changed, without notice and from time to time.
The Restaurant will provide Zuppler with the Restaurant’s current menu and related information requested by Zuppler within forty-eight (48) hours of execution of this Agreement, and any updates, changes, or modifications thereto (the “Restaurant Menu”), in such format as is requested by Zuppler (collectively, the “Set-up Intake and On-boarding Materials”) for Zuppler’s use for integrating the Zuppler Software in the Restaurant’s Website, the Zuppler Restaurant Network, Zuppler marketing services or for any marketing or advertising activities undertaken by Zuppler, in its sole and absolute discretion (the “Zuppler Marketing Activities”). The Restaurant hereby grants to Zuppler a non-exclusive, transferable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for any purpose, including marketing, commercial, advertising, promotional activities or otherwise, and with a right to sublicense, in connection with Zuppler Marketing Activities or the Zuppler Restaurant Services; and, in connection with Zuppler’s exercise of the license rights granted by the Restaurant, Zuppler may prepare derivative works of, or incorporate into other works, all or any portion of the Marketing Materials. The license rights granted hereby will apply to any form, media, or technology now known or hereafter developed. Zuppler does not assert any ownership over the Marketing Materials; rather, as between Zuppler and the Restaurant, and subject to the rights granted to Zuppler herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
As part of the Total Online Food Ordering Package, Zuppler may provide Restaurant with a
wireless printer, stand and computer tablet preloaded with Zuppler’s Food Ordering App (the
“Tablet Bundle”). Such Tablet Bundle shall be used by Restaurant solely for the purpose of
submitting and confirming orders and payments for food and beverages, and delivery services, if applicable, in connection therewith. Restaurant shall use the Tablet Bundle in conformance with any instructions for use provided by Zuppler.
The Tablet Bundle offers two choices of printers.
Zuppler Restaurant Services enable a Customer to pay for a Customer Order via credit cards. If the Customer Order is paid via credit card, the full purchase price for such Customer Order, including all applicable taxes, shall be processed and received by Zuppler. Zuppler will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by Zuppler, less Zuppler’s sales commission percentage (the “Commission Percentage”) and the applicable credit card merchant payment processing fee, via direct nightly bank deposit (the “Processing Fee”). The restaurant will provide their Tax ID that will be used to setup the Zuppler Marketplace account for direct deposit. The applicable Commission Percentage and Processing Fee are set below.
Zuppler’s Commission Percentage shall mean thirteen-percent (13%) of Restaurant’s Net Sales on transactions processed by Zuppler plus seven percent (7%) on Restaurant’s Net Sales that are delivered by Zuppler, as defined below. “Gross Sales” means the gross amount charged by Restaurant to any customer that is attributable to any order through the Zuppler’s Service, less (a) gratuities, and (b) amounts allowed or credited due to returns. If the Restaurant requests that Zuppler develop a custom branded mobile app on the iOS and/or Android platforms, there will be an additional two-percent (2%) charged on all mobile app orders. SETUP FEES Zuppler intends to launch the Restaurant food ordering service as quickly as practicable. This requires collecting certain brand assets, corporate information and web credentials in a timely manner. Restaurant agrees to provide requested materials to Zuppler within 48 hours of acceptance of this Agreement to ensure timely delivery of all services. Once the program has been launched, and the Restaurant has transacted 50 orders via the Zuppler software, Zuppler will charge the Restaurant’s credit card that is on file, $495.00, the cost of the one-time set up and software integration scope of services (See “Exhibit A”). CREDIT CARD PROCESSING FEE As part of the Premium Online Food Ordering Package, Zuppler will pay credit card processing fees for all transactions processed by Zuppler.
Notwithstanding anything to the contrary herein, the Restaurant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Restaurant’s use of the Website and the Zuppler Services. Zuppler may charge and collect sales tax from Customers as an agent on behalf of the Restaurant in accordance with instructions provided by the Restaurant or applicable law; and, in which case, Zuppler will collect such sales tax solely as an agent on behalf of the Restaurant and shall pay such amount collected to the Restaurant (or as may be otherwise required by applicable law). The Restaurant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. Sales tax shall include any sales, use, privilege, gross receipts, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Restaurant.
The Restaurant hereby represents, warrants, and covenants that: (i) the menu prices charged to Customers through the Zuppler Restaurant Services will not be higher than those charged to any customers that place orders directly with the Restaurant; (ii) it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Restaurant’s operation of its business; (iii) it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Zuppler’s policies; (iv) it bears all risks to persons and property arising from its (or its employees’ or service providers’) contact therewith, and waives, and agrees to indemnify Zuppler, its employees, contractors, shareholders and affiliates, for any and all claims relating thereto against Zuppler; (v) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant’s Marketing Materials pursuant to the license rights granted to Zuppler by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party; and (vi) The Restaurant’s Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
Excluding the Marketing Materials, all of the content on the Restaurant’s Website or the Zuppler restaurant network website (the “Websites”) and included in the Zuppler Services (including without limitation, all source code, databases, functionality, software, website designs, equipment, audio, video, text, photographs and graphics, the “Zuppler Content and Assets”), including the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Zuppler, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All Zuppler graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Zuppler in the U.S. and/or other countries. Zuppler’ trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Zuppler. The Restaurant agrees not to circumvent, disable or otherwise interfere with any security related features of the Websites or the Zuppler Restaurant Services, or any other features that seeks to either prevent or restrict the use or copying of any Zuppler Content or enforce limitations on use of the Websites, the Zuppler Services, or the Zuppler Content therein.
This Agreement is effective upon the Restaurant’s initial Registration Process and will remain in full force and effect for so long as the Restaurant is included on the Zuppler Website and as long as the Restaurant utilizes Zuppler’s food ordering software and purchased or loaned equipment. as part of the Zuppler Services. The Restaurant may terminate this Agreement any time, for any reason, with 30-days notice after the initial twelve-month (12) month term, by providing written notice by the Restaurant to Zuppler. Zuppler is investing considerable time and capital to provide Restaurant with its Restaurant Services. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. Zuppler will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant), remove the Restaurant from inclusion in the Zuppler Restaurant Services, remove the embedded software and the Websites.
Early termination may trigger an early termination fee of $89 per month for the remaining term. For example, if the Restaurant terminates their 12-month contract after six months, the Restaurant may be subject to an early termination fee of $534 (6 months X $89).
Once the first fifty (50) orders have been placed, regardless of whether the food ordered was picked up or delivered (the RDS option) Zuppler will charge the Restaurant’s credit card on file $495.00, the cost of the one-time set up and software integration scope of services (See “Exhibit A”).
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. The Restaurant will return “loaned” equipment including the tablet computer and tablet stand, if requested by Zuppler. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
If there is a dispute between the Restaurant and a Customer, the Restaurant understands and agrees that Zuppler is under no obligation with respect thereto, and the Restaurant, to the fullest extent permitted by law, hereby releases Zuppler and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Zuppler Restaurant Services.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement, the Website, or the Zuppler Services shall be governed and construed by the law of the State of Pennsylvania, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Zuppler arising out of or related in any respect to this Agreement, the Website, or the Zuppler Restaurant Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over Philadelphia County, Pennsylvania, and the Restaurant hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with Zuppler; subject, however, to the right of Zuppler, at Zuppler’ sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. The Restaurant hereby consents to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by the Restaurant related in any way to this Agreement, the Websites, or the Zuppler Restaurant Services be instituted more than two (2) years after the cause of action first arose.
TO THE FULLEST EXTENT PERMITTED BY LAW, ZUPPLER AND ITS AFFILITES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE AND THE ZUPPLER SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ZUPPLER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S OR THE ZUPPLER SERVICES’ CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE RESTAURANT’S ACCESS TO AND USE OF THE WEBSITE AND THE ZUPPLER SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF ZUPPLER’ SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR OTHERWISE WITH RESPECT TO THE ZUPPLER SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE ZUPPLER SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE ZUPPLER SERVICES.
IN NO EVENT SHALL ZUPPLER OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO RESTAURANT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE WEBSITE OR THE ZUPPLER SERVICES, EVEN IF ZUPPLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, ZUPPLER’ LIABILITY TO RESTAURANT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE RESTAURANT TO ZUPPLER FOR THE ZUPPLER SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE RESTAURANT, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE RESTAURANT, AND THE RESTAURANT MAY HAVE ADDITIONAL RIGHTS.
IF THE RESTAURANT IS A CALIFORNIA RESIDENT, THE RESTAURANT WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
The Restaurant hereby agrees to defend, indemnify and hold Zuppler and its affiliates, and each of their respective directors, officers, employees, contractors, shareholder, services providers, and agents (collectively, the “Zuppler Indemnitees”) harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any party due to or arising out of the Restaurant’s Marketing Materials, the Websites, the Zuppler Restaurant Services, or any breach by the Restaurant of this Agreement. Notwithstanding the foregoing, Zuppler reserves the right, at the Restaurant’s expense, to assume the exclusive defense and control of any matter for which the Restaurant may be required to indemnify an Zuppler Indemnitee, and the Restaurant agree to cooperate, at the Restaurant’s expense, with Zuppler’ defense of such claims. Zuppler will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding, which may be subject to this indemnification upon Zuppler becoming thereof.
Zuppler provides training, performs background checks and carries insurance on its contract drivers. In connection with this, Zuppler will indemnify and hold the restaurant harmless, for damages resulting from any Zuppler contract drivers’ negligence in performing a delivery function on behalf of the Restaurant.
The Restaurant shall at all times maintain comprehensive public liability insurance (which may be under a blanket policy), issued by a licensed insurer rated A+10 or better in “Best’s Insurance Guide”, insuring the Restaurant against any liability arising out the lease, use, occupancy of maintenance of its premises and all areas appurtenant thereto and the operation of the business, which will have a limit of not less than $1,000,000 combined single limit for injury to, or death of, one or more persons per occurrence, and for damage to tangible property per occurrence.
Except as explicitly stated otherwise, any notices given to Zuppler shall be given by email to admin@Zuppler.com. Any notices given to the Restaurant shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Restaurant from time to time); provided, however, that Zuppler may also give notices via regular mail.
Additionally, the Restaurant may contact Zuppler at the address, email and telephone number provided below (as may be updated by Zuppler from time to time) with respect to any complaint regarding the Zuppler Services or to receive further information regarding the Zuppler Services.
ZUPPLER 730 EAST ELM STREET, SUITE 200 CONSHOHOCKEN, PA 19428
Attn: Restaurant Customer Support Email: email@example.com Phone: 888-503-3658
This Agreement constitutes the entire agreement between the Restaurant and Zuppler regarding the use of the Zuppler Services; provided, further, that the Restaurant’s use of and access to the Websites and the Zuppler Restaurant Services shall also be subject to the Term of Use (currently available here http://zuppler.com/termsofservice). The failure of Zuppler to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Restaurant’s account with Zuppler (including the Websites and the Zuppler Restaurant Services) may not be assigned by the Restaurant without Zuppler’s express written consent. Zuppler may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Zuppler may modify this Agreement from time to time, and any such changes will (i) be reflected on the Websites, (ii) be effective 30 calendar days after being so posted on the Websites, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Restaurant agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Websites to keeping the Restaurant’s contact information (as indicated in the Restaurant’s account details via the Websites) current.
Notwithstanding anything to the contrary herein, Zuppler reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Websites and the Zuppler Restaurant Services (or any part thereof) with or without notice. The Restaurant agrees that Zuppler shall have no liability to the Restaurant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the Zuppler Restaurant Services.
In addition to providing local area marketing and promotion of the HLP Zone brand, its restaurant brand portfolio and providing use of Zuppler’s online ordering software and payment processing, for deliveries that Zuppler executes, the Restaurant will pay 7% premium.
Restaurant shall determine which items will be available for delivery and pricing of said items must match he advertised price on the menu. Evidence of items and pricing structure shall be attached to, and become part of this agreement. Restaurant, to the best of their ability, will provide well-packaged and labeled meals in a timely fashion.
Zuppler contracted drivers will pick up food from Restaurant, deliver to the customer.