This Customer Agreement (this “”) is entered into by and between LaCarte Inc., a Delaware corporation (“”) and the person or entity named in the Registration Form being submitted in connection with this Agreement (such person or entity, the “”).
BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY CUSTOMER TO BIND CUSTOMER TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND ONLY CLICK ON “AGREE” IF YOU AGREE THAT CUSTOMER SHALL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.
1.1 “” means Customer’s personnel engaged by Customer to provide delivery services.
1.2 “” means Company’s proprietary mobile device software application through which Agents can receive instructions from Customer for Order deliveries.
1.3 “” means the specific restaurant, food truck, cart or other food service establishment operated by Customer identified in the Registration Form
1.4 “” means an individual or entity that places an Order.
1.5 “” means any and all Company software applications, websites or other media properties through which orders for food and beverage products of Company’s food service customers can be placed and paid for, as determined by Company in its sole discretion.
1.6 “” means any and all data, information, content and materials uploaded through the Platform by or on behalf of Customer to the Company’s servers.
1.7 “” means the date on which the Registration Form is submitted by Customer.
1.8 “” means all fees payable by Customer to Company hereunder.
1.9 “” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.10 “” means each food or beverage item that is entered into the Site or Merchant App by Customer.
1.11 “” means Company’s proprietary mobile device software application through which Company’s food service customers can accept and view orders placed through the Consumer Channels in accordance with the functionality determined by the Company.
1.12 “” means an order for Customer’s Menu Item(s) placed through the Consumer Channels.
1.13 “” means, individually and collectively, the Site and Merchant App.
1.14 “” means the online form at Company’s website that is being filled out and submitted by Customer in connection with Customer’s entry into this Agreement.
1.15 “” means the Company website through which Company’s food service customers can input Menu Items and otherwise administer their Platform accounts in accordance with the functionality determined by the Company.
1.16 “” means all data relating to Orders processed and/or stored in connection with the Platform.
2.1 . Subject to all terms and conditions of this Agreement, Company hereby grants to Customer, during the term of this Agreement, a limited, nonexclusive, nontransferable right to access and use the Site for the sole purpose of facilitating the sale of Company’s food and beverage products from the Authorized Outlet through the Consumer Channels in accordance with all applicable documentation and other instructions and requirements provided by Company.
2.2 . Subject to all terms and conditions of this Agreement, Company hereby grants to Customer, during the term of this Agreement, a limited, nonexclusive, nontransferable license (without right to sublicense) to install and use the Merchant App in object code form on Customer’s compatible mobile device for the sole purpose of facilitating the sale of Company’s food and beverage products from the Authorized Outlet through the Consumer Channels in accordance with all applicable documentation and other instructions and requirements provided by Company.
2.3 . Customer has no rights or licenses with respect to the Platform except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Customer may not (i) copy, modify, distribute, rent, lease, lend, sublicense, transfer or make the Platform available to any third party, (ii) use the Platform on a service bureau basis, on behalf of a third party or for the sale of products from any retail location other than the Authorized Outlet; (iii) decompile, reverse engineer, or disassemble the Platform, (iv) create derivative works based on the Platform; (v) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (vi) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform without the prior written consent of Company; or (vii) use the Platform to develop a competitive product offering.
2.4 . Customer acknowledges that the mobile device on which the Merchant App is used must have sufficient Internet connectivity in order for the Merchant App to function. Customer is solely responsible for purchasing and configuring all hardware, software and services (including cellular Internet data service) that may be necessary or desirable for Customer’s use of the Platform at Customer’s own expense. Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Platform.
2.5 . Without limiting the generality of Section 9.2, Company may suspend, limit or terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; (ii) Customer attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to any other customers of the Platform or any use in connection with any activity that may violate any applicable law, rule or regulation; or (iii) Customer breaches its obligation under Section 5.1.
2.6 . Customer is responsible for the activities of any and all persons accessing the Platform using any user name and password issued to Customer. Customer shall use, and shall instruct its personnel to use, all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised.
2.7 . The Platform may include features or functionality that interoperate with online services operated by third parties such as Google, Facebook, and Instagram (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Customer acknowledges that interoperability with Third Party Services is provided as a convenience and does not constitute material functionality of the Platform or form any basis for the payment of Fees hereunder. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
2.8 . Company reserves the right to modify and update the features and functionality of the Platform from time to time in its sole discretion. While Company shall use commercially reasonable efforts to ensure the ongoing availability of the Platform, Company makes no representation, warranty or guarantee regarding the continuous availability or performance of the Platform. Customer acknowledges that the Platform may, in whole or in part, be unavailable for use from time to time without notice to Customer.
2.9 . Customer hereby acknowledges and agree that Apple: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the Merchant App; (iii) is not responsible for addressing claims by Customer or any third party relating to the Merchant App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the Merchant App or use thereof infringes any third party intellectual property rights; and (v) and its subsidiaries are each a third party beneficiary of this Agreement with the right to enforce its terms against Customer directly.
3.1 . Customer represents and warrants that all menu content, photographs and other information and materials Customer provides through the Platform for display on the Consumer Channels (“”) shall be true, accurate, complete and not misleading. Customer hereby grants to Company a non-exclusive, worldwide, irrevocable (during the term of this Agreement), royalty-free right and license to use, reproduce, modify, re-format, re-size, distribute, display, perform and transmit the Customer Content for purposes of: (i) providing the features and functionality of the Platform and Consumer Channels and operating Company’s services; and (ii) for purposes of advertising, marketing and promoting (in any form of media) the Platform, Consumer Channels and the Company. Customer acknowledges and agrees that Company has no obligation to monitor, edit or verify the accuracy of any Customer Content and that, as between the parties, Customer is solely responsible therefor. Company reserves the right to remove any Customer Content from the Consumer Channels which Company becomes aware may violate the terms of this Agreement, violate any law, rule or regulation or infringe, misappropriate or violate any third party Intellectual Property Right, privacy right or right of publicity.
3.2 . Customer agrees to fulfill all Orders using the same level of care, quality and diligence as Customer uses with respect to food and beverage orders that Customer receives through other channels. Customer acknowledges that Orders are between Customer and the applicable Consumer and that Company is not a party to any such transactions. As such, as between Customer and Company, Customer is solely responsible liable for all aspects of Order fulfillment.
3.3 . Customer represents and warrants that: (i) it is in the business of selling food and beverages at the Authorized Outlet and either owns or leases the Authorized Outlet; (ii) it has all necessary licenses and permits of any kind of nature necessary for the conduct of its business; (iii) it and its personnel shall comply with all applicable federal, state and local laws, ordinances and codes and all lawful orders, directives, rules and regulations thereunder (collectively "Laws") in connection with this Agreement, including without limitation all environmental, safety, security, hygiene, health, water quality, and sanitation Laws promulgated by any lawful and relevant authority that are applicable to Customer’s business, including as such Laws may be modified from time to time; (iv) it shall promptly notify Company of any actual or alleged breach of such Laws by Customer or Customer’s loss of any license or permit required for Customer to conduct its business, and (v) it currently maintains and shall maintain during the term of this Agreement commercial general liability insurance with coverage levels appropriate given the scope of Customer’s business.
3.4 . Customer agrees to indemnify, defend and hold Company, its officers, members, employees and agents harmless from and against any claims, demands, suits, damages, settlements, judgments, liabilities, losses, expenses (including reasonable attorneys fees) and costs (collectively, “Claims”) arising out of or relating to (i) Customer’s use of the Platform, the fulfillment or non-fulfillment of Orders, any Agent’s use of the Agent App, the sale of any products or services by Customer or any transactions or interactions between Customer and any third party (including a Consumer), including without limitation Claims relating to death, personal injury or property damage; and (ii) any alleged breach by Customer of this Agreement, other than in each case the extent to which the Claim arises out of the Company’s gross negligence or willful misconduct.
4.1 . Customer may invite Agents to access the Agent App to delivery Orders on behalf of Customer. Customer is responsible for any actions of its Agents while using the Agent App. Agents are engaged directly by Customer and Company has no obligation to provide any payment or other benefits to Agents.
5.1 . Use of the Platform requires Customer to open and maintain an account with Stripe Inc. (“Stripe”) for payment processing services. Customer agrees to connect Customer’s Stripe account to the Company’s Stripe account through Stripe’s “Connect” platform. Customer acknowledges that by doing so, Customer agrees to be bound by applicable Stripe terms and conditions, including the Stripe Connected Account Agreement at https://stripe.com/connect/account-terms. Customer acknowledges that Company constitutes a “Connected Platform” under the Stripe Connected Account Agreement.
5.2 . Customer agrees to provide all information requested by Company and/or Stripe in connection with enabling payment processing for Customer, verifying Customer’s identity, satisfying IRS reporting obligations and complying with any legal or compliance requirements, including but not limited to Customer’s bank account and routing numbers and Tax ID or Social Security Number. Customer shall promptly notify Company and/or Stripe of any change or update to any information previously provided to Company and/or Stripe (as applicable). Customer acknowledges that Company may provide Customer’s transaction activity reports relating to the Platform to Stripe upon Stripe’s request.
5.3 . Company may from time to time change the third party payment processing service provider identified in Section 5.1 as being compatible with the Platform upon written notice to Customer. In such event Customer acknowledges that, as a condition of continued use of the Platform, Customer shall be required to: (i) agree to different terms and conditions applicable to such third party service provider, (ii) agree to a modified version of this Agreement and (iii) provide all information and take such other actions as are required by the applicable third party in order to receive payment processing services. In the event Customer does not wish to comply with the foregoing requirements, Customer may, as its sole remedy and Company’s exclusive liability, terminate this Agreement upon written notice to Company.
5.4 . Customer acknowledges that Company is not a party to Customer’s agreements with Stripe and that Company is not an affiliate of Stripe. Customer acknowledges and agrees that Company does not control Stripe or its performance of payment processing services for Customer, and that Company shall have no liability of any kind to Customer for any act or omission (including negligence) of Stripe or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by Customer in relation to the performance or non-performance of payment processing services by Stripe, other than to the extent to which any of the foregoing may directly arise from the gross negligence or willful misconduct of Company.
6.1 . As between the parties, Customer shall own all right, title and interest in and to Transaction Data. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Transaction Data in connection with Company’s operation of the Platform and as otherwise authorized herein. Company may use and disclose Transaction Data as follows: (i) Company may use Transaction Data for Company’s internal business purposes (such as analyzing usage of and developing and improving Company’s products and services); (ii) Company may disclose Transaction Data to its third party service providers that assist it in making the Platform available as is reasonably necessary for such assistance; (iii) Company may disclose Transaction Data as may be required by law or legal process; (iv) Company may disclose Transaction Data provided that it is aggregated with data unrelated to Customer and Customer is not identified; and (v) Company may disclose Transaction Data as authorized by Customer.
6.2 . Customer acknowledges that: (i) the Platform uses the Internet for data transfer and Internet-connected servers to store Transaction Data; (ii) while Company uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective, and (iii) Internet communications have inherent insecurities. As such, Company does not represent or warrant the security of the Transaction Data.
6.3 . As between the parties, Company shall own all right, title and interest in and to all data collected by Company in connection with the operation of the Platform and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when, how and how often Customer uses the Platform and which Platform features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Customer without Customer’s consent other than (i) disclosure to the Company’s third party service providers for use for the benefit of Company; or (ii) as may be required by law or legal process.
7. ECONOMIC TERMS. Use of the Platform is currently provided at no charge to Customer. Company reserves the right to charge fees for use of the Platform upon written notice to Customer. Customer may, as Customer’s sole remedy and Company’s exclusive liability, terminate this Agreement upon written notice to Company if Customer does not wish to pay such fees. Customer acknowledges that the institution of fees for use of the Platform may be associated with a requirement to enter into an amendment to this Agreement or a new agreement with Company governing use of the Platform and containing payment terms which would supersede this Agreement.
8. OWNERSHIP. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform (including without limitation all underlying source code, algorithms and models) and any software, technology, materials and information owned by Company prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Company after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of the Platform or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other compensation to Customer.
9.1 . This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until terminated as set forth herein.
(a) Either party may terminate this Agreement at any time, for any reason or for no reason, upon written notice to the other party.
(b) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
9.3 . All rights and obligations of the parties hereunder shall terminate upon termination of this Agreement, provided that Sections 1, 2.3 through 2.8, 3.3, 3.4, 4, 5.4, 6, 7, 8, 9.3, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement.
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM.
11. CONFIDENTIALITY. Customer shall keep confidential all information and materials provided or made available by Company that are marked as confidential or proprietary or that Customer should reasonably recognize as such due to its content and/or the circumstances surrounding its disclosure (“Confidential Information”). Without limitation, the features, functionality and content of the Platform, any Platform documentation, and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company. Customer shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with Customer’s own confidential information, but in no case less than a prudent and reasonable standard of care. Customer shall not disclose Confidential Information to any third party except as expressly authorized by Company. Customer shall not use Confidential Information other than for purposes of performing its obligations hereunder or as expressly authorized by Company. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of Customer, (ii) known to Customer without restriction prior to the time of disclosure by Company, or (iii) lawfully and rightfully disclosed to Customer by a third party on a non-confidential basis. In addition, Customer shall not be in breach of this Agreement with respect to any disclosure required by law or legal process, provided that Customer promptly provides notice to Company of such request or requirement so Company may seek appropriate protective orders. If Customer, its employees or agents breaches or threatens to breach the obligations of this Section 11, Company may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
12. LIMITATION OF LIABILITY. COMPANY SHALL NOT BE LIABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE HUNDRED U.S. DOLLARS. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY UNDER THIS SECTION 12 CONSTITUTE A FUNDAMENTAL BASIS OF THEIR BARGAIN UNDER WHICH USE OF THE PLATFORM IS PROVIDED AT NO CHARGE.
13.1 . The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
13.2 . Nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
13.3 . Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company. Any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer or similar transaction shall be deemed to constitute an attempted assignment of this Agreement. Company may freely assign this Agreement. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
13.4 . Company will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
13.5 . All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to (with respect to Company) the Company address set forth at Company’s website at www.lacartemenu.comand (with respect to Customer) to Customer’s address set forth in the Registration Form. Notices shall be sent to the attention of the “Legal Department” of each party. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
13.6 . An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by Company electronically through the Platform and accepted in “click-to-agree” form by Customer. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
13.7 . Section headings are for reference purposes only and should not be used in the interpretation hereof.
13.8 . If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
13.9 . [This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties shall try in good faith to resolve any dispute or claim related to or arising out of this Agreement, or the interpretation, making, performance, breach or termination thereof, amicably by themselves. If the dispute or claim cannot be resolved by the parties themselves, then it shall be finally settled by arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) by one (1) arbitrator selected in accordance with such Rules. Such arbitration shall be held in Santa Clara County, California, and the proceedings and all pleadings, filings, written evidence, decisions and other relevant documents shall be in English. Any written evidence in a language other than English shall be submitted with an English translation. Any final decision issued in the arbitration shall be binding and conclusive upon the parties and may be entered as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for temporary or permanent injunctive relief without breach of this Section 13.9. Each party shall bear its own costs in connection with the foregoing arbitration.]
13.10 . This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.