Terms of Service
Effective: December 1, 2020
BEFORE YOU USE THE GetMeFoodie PLATFORM ("PLATFORM") PLEASE READ THESETERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH GBTS Inc. CANADA,INC. OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALLOF YOUR PARTICIPATING STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BEBOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET.
SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOWCLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED,INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTEDBEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITEDEXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING ANDFINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1)YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST USON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ORREPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHTTO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE INPENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 19 FORMORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLEEFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THEARBITRATION AGREEMENT.
● GetMeFoodie Core Responsibilities.
● Merchant Core Responsibilities.
● Refunds and Re-Orders.
● Order Equipment.
● Payment, Fees, and Taxes.
● Payment Processing.
● Use of Merchant Content and Trademark.
● Confidential Information.
● Data Privacy.
● Representations and Warranties; Disclaimer.
● Limitation of Liability.
● Dispute Resolution.
● General Provisions.
a. “Carrier” means independent third-party delivery contractor.
c. “GetMeFoodie Data” shall mean any information that GetMeFoodie provides or makes accessible toMerchant through the GetMeFoodie Platform, including without limitation Personal Information.d. “Customer” means the customer who places an order for Merchant products through theGetMeFoodie Marketplace, GetMeFoodie Delivery or Pick-up.
e. “GetMeFoodie Marketplace” means GetMeFoodie’s proprietary online communication platformwhere Customers can view and search for the menus of Merchants and/or place an order for MerchantProducts via the GetMeFoodie website or mobile application for delivery by a Carrier to the Customer.This is also referred to herein as the GetMeFoodie Platform.
f. “GetMeFoodie Delivery” means the platform that enables delivery fulfillment for orders placeddirectly with the Merchant by the Customer.
g. “GetMeFoodie Services” means GetMeFoodie Marketplace, GetMeFoodie Delivery and Pickup, asapplicable.
h. “Delivery Orders” means orders placed by Merchant for delivery fulfilment by GetMeFoodie.i. “Delivery Term” means the term of the agreement between GetMeFoodie and Merchant forGetMeFoodie Delivery.
j. “Marketplace Orders” means orders for Merchant Products through the GetMeFoodie Marketplacefrom GetMeFoodie customers.
k. “Merchant” means the restaurant or other entity that has agreed to participate in the GetMeFoodieServices.
l. "Merchant Portal" is an online website, accessible at https://www.getmefoodie.com/login whichMerchant may and regularly should review and confirm its transactions, fees and charges and account onthe Platform.
m. “Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.n. “Merchant Stores” means the Merchant restaurant locations that participate in the GetMeFoodieServices.
o. “Marketplace Term” means the term of the agreement between GetMeFoodie and Merchant for theGetMeFoodie Marketplace.
p. "Pick-up" means the online GetMeFoodie communication platform where Customers can place anorder for Merchant Products for pick up by the customer or the customer's agent at a Merchant location.q. “Order Equipment” means and includes any equipment reasonably required by GetMeFoodie forMerchant to receive and process Orders, including, without limitation, a tablet, or other automated,electronic means of receiving Orders.
r. “Pick-up Term” means the term of the agreement between GetMeFoodie and Merchant for thePick-up service.
s. “Personal Information” shall mean any information exchanged under this Agreement that (i)identifies or can be used to identify an individual (including without limitation, names, telephone numbers,addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used toauthenticate an individual (including without limitation, name, contact information, precise locationinformation, access credentials, persistent identifiers and any information that may be considered‘personal data’ or ‘personal information’ under applicable law).
t. “Promotion Fee” means the fees collected by GetMeFoodie as a commission in exchange forpromoting and featuring the Merchant and Merchant Store(s) on the GetMeFoodie Platform, which ischarged as a percentage of revenues transacted on the GetMeFoodie Platform.
u. “Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the sameday or at a later date.
v. “Third Party Platform” means a technology interface, such as a middleware technology platform,other than the online order form that enables Merchant to request delivery fulfillment and provideinformation necessary to enable such delivery fulfillment.
2. The Parties' Relationship: GetMeFoodie provides an online marketplace platform usingweb-based technology that connects Merchants, independent delivery contractors ("carrier") andcustomers ("Platform"), as described in these Terms for GetMeFoodie Marketplace, GetMeFoodieDelivery and Pick-up. GetMeFoodie is not a merchant or delivery service; it is an online connectionplatform. Merchant and GetMeFoodie agree they are independent businesses whose relationship isgoverned by the Sign-Up Sheet and these Terms. Nothing in the Parties' agreements, relationship ortransactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture
relationship between GetMeFoodie and Merchant (or Merchant's employees, representatives orlocations), GetMeFoodie and carrier, or GetMeFoodie and customers. Except as expressly set forth in theSign-Up Sheet and these Terms, each Party shall be responsible for its own expenses, profits and losses.
3. Marketplace Core Responsibilities.For Merchants that have agreed to participate in theGetMeFoodie Marketplace, GetMeFoodie and Merchant shall have the following responsibilities duringthe Marketplace Term:
a. GetMeFoodie Core Responsibilities. GetMeFoodie will, in a timely manner:i. Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products onthe GetMeFoodie Platform;
ii. Accept Marketplace Orders from Customers;
iii. Forward each Marketplace Order to the relevant Merchant Store; and
iv. Forward each Marketplace Order to a Carrier, so that the Carrier can pick up the applicableMerchant Product(s) from the Merchant Store to deliver to the Customer.
v. Pay the Merchant in accord with the Parties' agreements, deducting applicable Promotion Fees,marketing fees, subscription fees and Activation Fees.
b. Merchant Core Responsibilities. Merchant will, in a timely manner:
i. Provide GetMeFoodie with the Merchant’s in-store or take-out menu, including the price of eachitem on such menu;
ii.Monitor Merchant’s menu and store information on the GetMeFoodie Marketplace, promptlymake updates via the Merchant portal to reflect the most up-to-date products, pricing and otherinformation or immediately notify GetMeFoodie of any errors or changes in writing;iii.Accept all Marketplace Orders placed by GetMeFoodie from Merchant’s then-current menu;iv. Confirm all Marketplace Orders from GetMeFoodie;
v. Prepare the Merchant Products for each Marketplace Order for pickup by a Carrier at thedesignated time;
vi. Process Marketplace Orders in the order in which they are received;
vii. Notify GetMeFoodie of any changes to the pricing, availability, description, or other characteristicsof the Merchant Products;
viii. Notify GetMeFoodie of its days and hours of operation, and remain open for business onGetMeFoodie the same days and hours of operation as Merchant’s in-store business; notify GetMeFoodieof any changes to Merchant’s hours of operations on holidays; and notify GetMeFoodie if Merchant closesearlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standardhours of operation;
ix. Notify all Merchant store staff members of the relationship with GetMeFoodie immediately uponexecution of this Agreement; and
x. Provide the same utensils, napkins, bags and other materials that Merchant would typically providein a standard take-out or delivery order, subject to Section 15(3)(i).
xi. On an ongoing basis, review and confirm the transactions, fees and charges on orders via theMerchant Portal, and promptly communicate to GetMeFoodie any inaccuracies.
4. GetMeFoodie Delivery Core Responsibilities.For Merchants that have agreed to participatein GetMeFoodie Delivery, GetMeFoodie and Merchant shall have the following responsibilities during theDelivery Term:
a. GetMeFoodie Core Responsibilities. GetMeFoodie will, in a timely manner:
i. Provide Merchant with an online order form to submit requests for deliveries, or receive informationthrough a Third-Party Platform;
ii. Forward requests to a Carrier, so that the Carrier can pick up the applicable Merchant Product(s) fromthe Merchant Store to deliver to the Customer.
b. Merchant Core Responsibilities. Merchant will:
i.Via the online order form, provide information requested by GetMeFoodie including the Customer’saddress, contact information, and any special instructions required for delivery;
ii. Accept and collect payments from Customers for their respective orders;
iii. Notify Customers prior to placing a Delivery Order that their telephone numbers and other personalcontact information will be shared with GetMeFoodie to enable deliveries to be made by Carriers and, inconnection with the applicable deliveries, request the Customer’s consent to receive delivery statusupdates by e-mail, text messages, and telephone calls from GetMeFoodie and Carriers; and
iv. Notify GetMeFoodie if a Customer has not consented to receive delivery updates or has placed anyrestrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Merchanthereby consents to receiving text messages and email confirmations from GetMeFoodie providing statusupdates and delivery confirmations in connection with each delivery.
v. On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via theMerchant Portal, and promptly communicate to GetMeFoodie any inaccuracies.
c. Delivery Operating Procedures.
i. Order Placement. Merchant agrees to submit a Delivery Order for delivery fulfillment at leasttwenty-four (24) hours in advance of scheduled delivery, and in no event less than two (2) hours inadvance of scheduled pick-up. Exceptions will be mutually agreed to by the Parties.ii. Hours of Operation. The pickup and drop-off of deliveries will be scheduled to take place duringGetMeFoodie’s standard hours of availability, as may be updated from time to time in GetMeFoodie’s solediscretion. Merchant agrees to abide by the following standard procedures: (i) to notify GetMeFoodie ofany changes to its hours of operations on federal holidays with reasonable advance notice; and (ii) tonotify GetMeFoodie with reasonable advance notice if a Merchant location closes earlier than standardhours of operation or plans to close earlier than standard hours of operation.
iii. Delivery Radii. GetMeFoodie will only accept Delivery Orders to be delivered within a certain pre-setdelivery radius based on either the Merchant or the End-Customer location, which will be communicatedto Merchant.
iv. Cancellations. Fees owed for any Delivery Orders cancelled within twenty-four (24) hours of aSchedule for Later delivery are non-refundable. If provided more than two (2) hours notice, but less thantwenty-four (24) hours notice, GetMeFoodie will make reasonable efforts to accommodate changes. Feesowed for any Delivery Orders cancelled after a Carrier has accepted a delivery opportunity will benon-refundable.
v. Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationshipwith GetMeFoodie prior to submitting any delivery requests to GetMeFoodie.
5. Pick-up Core Responsibilities. For Merchants that have agreed to participate in the Pick-upprogram, during the Pick-up Term, GetMeFoodie will have the same responsibilities as set forth in Section3(a)(i) - 3(a)(iii) and Merchant will have the same responsibilities as set forth in Section 3(b)(i) - (xi).
6. Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:a. Marketplace Refunds. In the event that GetMeFoodie, in its sole reasonable discretion, has to issuea refund, credit or re-order on and Customer’s Order, Merchant will prepare the food to the samespecifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit orre-order, as applicable, unless the refund, credit or re-order is due to the fault of the Carrier orGetMeFoodie.
b. Delivery Refunds. Merchant acknowledges and agrees that GetMeFoodie shall be responsible onlyfor facilitating the delivery of Merchant Product(s) to Customers. Merchant shall be solely responsible forany customer complaints regarding Merchant Product(s), including without limitation, complaintsregarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees notto refer any Customer complaints directly to GetMeFoodie. Any complaints regarding the timeliness orquality of a Carrier’s delivery service shall be reported by Merchant to GetMeFoodie. If the completion ofa Delivery Order is more than 45 minutes late and due to fault of GetMeFoodie, GetMeFoodie willreimburse Merchant for all or a portion of the delivery cost of the applicable Delivery Order. If Merchant
elects to refund a Customer for any reason, such election shall not obligate GetMeFoodie to provide acorresponding reimbursement to Merchant. In the event that a Merchant Product has been visiblydamaged with proof from customer, GetMeFoodie may reimburse Merchant for all or a portion of the ordersubtotal. For the purposes of this agreement, “Merchant Product” is the actual food or beverage item, notthe packaging that contains the Merchant Product. In no event shall GetMeFoodie be obligated to issueany refunds directly to Customers.
c. Pick-up Refunds.GetMeFoodie shall be responsible for customer support issues relating to theordering of Merchant Products and issues relating to a Customer’s GetMeFoodie account. All othercustomer issues or complaints will be Merchant’s sole responsibility. In the event that GetMeFoodie, in itssole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Merchant willprepare the food to the same specifications as the original Pick-up Order (in the case of a re-order) andbear the full cost of that refund, credit or re-order.
7. Order Equipment. With respect to the GetMeFoodie Marketplace, Merchant will install anyequipment reasonably required by GetMeFoodie for Merchant to receive and process Orders (including,without limitation, a tablet, or other automated, electronic means of receiving Orders) (“OrderEquipment”). If any Order Equipment is provided by GetMeFoodie, Merchant will pay GetMeFoodie anOrder Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the OrderEquipment to access the GetMeFoodie Platform in order to receive, process, and accept MarketplaceOrders. Any Order Equipment provided by GetMeFoodie will remain GetMeFoodie’s sole property andmay be used solely for purposes related to fulfilling Merchant’s responsibilities under thisAgreement. Merchant will inspect all hardware, and shall notify GetMeFoodie in writing if any OrderEquipment is missing or was damaged as soon as practicable after discovering suchdamage. GetMeFoodie may restrict or rescind Merchant’s right to use the GetMeFoodie Platform at anytime. Merchant will be responsible for any damage to or loss of any Order Equipment provided byGetMeFoodie (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at thereplacement cost thereof). GetMeFoodie may recover the replacement cost of damaged or lost OrderEquipment by deducting such amount from weekly payments. Merchant agrees to pay all subscriptionfees and deposits reasonably charged by GetMeFoodie for Order Equipment, and agrees GetMeFoodiemay deduct such fees and deposits from amounts payable by GetMeFoodie to Merchant.
8. Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:a. GetMeFoodie Marketplace and Pick-up. GetMeFoodie will pay for Marketplace and Pick-upOrders fulfilled by Merchant each week on a consistent day of the week, subject to change with no lessthan 10 days notice to Merchants by email or service notification. GetMeFoodie shall be entitled to deductfrom such payments Promotion Fees, marketing fees, Activation Fees and subscription fees. If Merchanthas opted for GetMeFoodie to provide Order Equipment, GetMeFoodie will also deduct a weekly OrderEquipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Merchant’s right to use the OrderEquipment to access the GetMeFoodie Platform in order to receive, process, and acceptOrders. Merchant agrees GetMeFoodie may charge the customer fees, including but not limited to aDelivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable, as well as anadditional markup for Merchant Products, in GetMeFoodie's sole discretion. Merchant shall beresponsible for all taxes, duties, and other governmental charges on the sale of Merchant Products andfor remitting such taxes, duties, and other governmental charges to the appropriate authorities. Merchantshall also be responsible for all taxes, duties, and other governmental charges on the Promotion Fee,which GetMeFoodie shall be responsible for withholding and remitting to the appropriate authorities. Inthe event that Merchant raises the price for a menu item, GetMeFoodie shall not be required to remit thehigher price to the Merchant until 3 business days after the Merchant first provides notice to GetMeFoodieof such pricing change.
b. GetMeFoodie Delivery. Merchant will pay GetMeFoodie a fee per Delivery Order as mutually agreed.Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale ofMerchant Products and for remitting such taxes, duties, and other governmental charges to the
appropriate authorities. As agreed by the parties, payment of all fees under this Section 8(b) shall be asfollows: (i) Merchant shall pay the fees by credit card at the time of ordering, or (ii) GetMeFoodie shallinvoice Merchant on a monthly basis and Merchant shall pay the invoice within seven (7) days of receiptof such invoice. If any fee is not paid in full by the due date, GetMeFoodie may assess interest on theunpaid amount for the period beginning on the Payment Date and ending on the date that the amount ispaid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law.
c. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges onorders and invoices and via the Merchant Portal, and to promptly communicate to GetMeFoodie in writingany claimed inaccuracies, so that GetMeFoodie has the prompt opportunity to address and resolve anyissues and so such issues do not persist, which GetMeFoodie and Merchant agree is in the best interestsof both parties and their commercial relationship. Merchant agrees to communicate to GetMeFoodie anydisagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of thetransaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to havewaived any claim or objection regarding, each transaction, fee, charge and order if Merchant does notcommunicate a written claim or objection to GetMeFoodie regarding such transaction, fee, charge ororder within such 60-day period.
d. Title: Merchant agrees that Merchant holds title to the goods or products that Merchant providesthrough the Platform until the goods are picked up from Merchant, and that title passes from the Merchantto the customer upon pickup at the Merchant’s location. Merchant agrees that neither the Carrier norGetMeFoodie holds title to or acquires any ownership interest in any goods or products that Merchantprepares or provides through the Platform.
9. Payment Processing.
Payment processing services for Merchants on the GetMeFoodie Marketplace and Pick-up are providedby Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe ServicesAgreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected AccountAgreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time.As a condition of GetMeFoodie enabling payment processing services through Stripe, Merchant agrees toprovide GetMeFoodie accurate and complete information about Merchant’s representative and itsbusiness, and Merchant authorizes GetMeFoodie to share it and transaction information related toMerchant’s use of the payment processing services provided by Stripe. Stripe has been audited by aPCI-certified auditor and is certified to PCI Service Provider Level 1.
10. Merchant Content and Trademark; Photographs of Menu Items.a. During the Marketplace Term or Pick-up Term, as applicable, Merchant grants to GetMeFoodie aroyalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license touse and display the Merchant Content in the provision of providing services to Merchant. As used herein,“Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or onMerchant’s website), trademarks, logos and other materials provided by Merchant to GetMeFoodie.b. If photographs of Merchant’s menu items are not available or if they do not meet GetMeFoodie’srequirements, as reasonably determined by GetMeFoodie, then Merchant consents to GetMeFoodieengaging a professional photographer to take photographs of Merchant’s menu items and display suchphotographs on the GetMeFoodie Marketplace as representations of Merchant’s menu items; providedthat Merchant may contact GetMeFoodie support to have such photographs removed from the Merchant’sstore listing and, in such event, GetMeFoodie will comply in a timely manner.
11. Confidential Information.
a. The term “Confidential Information” shall mean any confidential or proprietary business, technical orfinancial information or materials of a party (“Disclosing Party”) provided to the other party (“ReceivingParty”) in connection with this Agreement, whether orally or in physical form, and shall include the terms
of this Agreement. Without limiting the foregoing, GetMeFoodie Data is the Confidential Information ofGetMeFoodie.
b. Confidential Information does not include information that: (i) was rightfully known to the ReceivingParty without restriction on use or disclosure prior to such information's being disclosed to the ReceivingParty in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the
Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a thirdparty that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain itsconfidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently
developed by the Receiving Party without access to, use of or reference to any Confidential Information.c. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary toexercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to itscompliance with Section 11(d), not disclose or permit access to Confidential Information other than to itsor any of its employees, officers, directors, consultants, agents, independent contractors, serviceproviders, subcontractors and legal advisors (“Representatives”) who need to know such ConfidentialInformation for purposes of the Receiving Party's exercise of its rights or performance of its obligationsunder and in accordance with this Agreement, and prior to any such disclosure are bound by writtenconfidentiality and restricted use obligations at least as protective of the Confidential Information as theterms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use,access or disclosure using at least the degree of care it uses to protect its most/similarly sensitiveinformation and in no event less than a reasonable degree of care.
d. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then,to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party inwriting of such requirement so that the Disclosing Party can seek a protective order or other remedy orwaive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at theDisclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
12. Data Privacy and Security.
General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in anymanner GetMeFoodie Data, including without limitation Personal Information, except as required toperform under this Agreement. Merchant shall keep GetMeFoodie Data secure from unauthorized accessand maintain the accuracy and integrity of GetMeFoodie Data in Merchant’s custody or control by usingappropriate organizational, physical and technical safeguards. If Merchant becomes aware of anyunauthorized access to GetMeFoodie Data, Merchant will immediately notify GetMeFoodie, consult andcooperate with investigations and potentially required notices, and provide any information reasonablyrequested by GetMeFoodie. Merchant agrees to implement and use security procedures, protocols oraccess credentials as reasonably requested by GetMeFoodie and will be responsible for damagesresulting from Merchant’s failure to comply. Merchant will not allow any third party to use theGetMeFoodie Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt togain access to the source code of the GetMeFoodie Platform; damage, destroy or impede the servicesprovided through the GetMeFoodie Platform; transmit injurious code; or bypass or breach any securityprotection on the GetMeFoodie Platform.
Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice.GetMeFoodie may terminate this Agreement or any promotion under this Agreement for any reason atany time upon written notice. Email shall suffice for written notice. Neither Merchant nor GetMeFoodie willbe required to pay any fee in connection with a termination by either party, or be liable to the other as aresult of termination of this Agreement for any damages, for the loss of goodwill, prospective profits oranticipated income, or for any expenditures, investments, leases or commitments made by eitherMerchant or GetMeFoodie.
GetMeFoodie reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform(including without limitation, the availability of any feature or content) at any time. GetMeFoodie may, at itssole discretion, remove Merchant Products or Stores from the GetMeFoodie Marketplace if GetMeFoodiedetermines that such Merchant Product or Merchant Store could subject GetMeFoodie to undueregulatory risk, health and safety risk, or other liability. GetMeFoodie also may revise these Terms fromtime to time. The changes will not be retroactive, and the most current version of the terms will be in themarketplace website. We will notify Merchants of material revisions via a service notification or an emailto the email address associated with your account. By continuing to access or use the Services afterthose revisions become effective, you agree to be bound by the revised Terms.
15. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.1. Each party represents and warrants that it has the full right, power, and authority to enter into andperform its obligations under this Agreement without breaching any obligation to any third party.2. Each party represents and warrants that it will comply with all applicable laws and regulations inits performance of this Agreement, including without limitation (i) all applicable data protection and privacylaws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws,rules, standards and regulations relating to licenses, health, food packaging and accessory items(including but not limited to food ware, plasticware, and other disposable restaurant supplies), and foodsafety and sanitation, (ii) it has informed GetMeFoodie of any required consumer-facing warnings,charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will informGetMeFoodie of any such warnings, charges, opt-ins, and instructions that become required in the future,(iii) it will disclose common allergens in any Merchant’s menu items listed on the GetMeFoodieMarketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol andtobacco) in Merchant’s menus on the GetMeFoodie Marketplace or request delivery of any age-restrictedproducts through the GetMeFoodie Platform without first entering into a separate agreement withGetMeFoodie memorializing the promotion, sale and delivery of such products in compliance with thelaws of the applicable state in which such products will be sold, (v) it will not disclose any informationrelated to a Carrier or a consumer to a third party (except as required to comply with law or pursuant to acourt order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement.4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BYAPPLICABLE LAW, GETMEFOODIE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,EXPRESS, IMPLIED OR STATUTORY, REGARDING THE GETMEFOODIE PLATFORM, EQUIPMENTOR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OFMERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR APARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of thePlatform may from time to time encounter technical or other problems and may not necessarily continueuninterrupted or without technical or other errors and GetMeFoodie shall not be responsible to Merchantor others for any such interruptions, errors, or problems or an outright discontinuance of the Platform norfor any guarantee of results with respect to the GetMeFoodie services or Platform. Both Partiesacknowledge that neither party has any expectation or has received any assurances for future businessor that any investment by a party will be recovered or recouped or that such party will obtain anyanticipated amount of profits by virtue of this Agreement.
Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, itssubsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents(the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (includingreasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of orrelated to: (i) any bodily injury (including death) or damage to tangible or real property to the extentcaused by the Indemnifying Party’s personnel and, in the case of GetMeFoodie, Carriers (or, in the case
of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that theIndemnifying Party breached its representations, warranties or covenants set forth in Section 11, Section12 and Section 15 of this Agreement; (iii) the violation of the intellectual property of the third party by theIndemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectualproperty (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmlessGetMeFoodie from any and all Losses related to any violation or alleged violation of any applicable retailfood or other health and safety code, rule, or regulation related to Merchant Product(s), except to theextent such Losses were caused directly by the gross negligence or willful misconduct of GetMeFoodie.In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of anyclaims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the optionto assume sole control over defense and settlement of any claim, and (c) reasonable assistance inconnection with such defense and settlement (at the Indemnifying Party’s expense). The IndemnifiedParty may participate in the defense or settlement of such a claim with counsel of its own choice and at itsown expense; however, the Indemnifying Party shall not enter into any settlement agreement thatimposes any obligation on the Indemnified Party without the Indemnified Party’s express prior writtenconsent. GetMeFoodie assumes no liability, and shall have no liability, for any infringement claim pursuantto section 16(iii) above based on Merchant’s access to and/or use of the GetMeFoodie Platform followingnotice of such an infringement claim; any unauthorized modification of the GetMeFoodie Platform byMerchant; or Merchant’s combination of the GetMeFoodie Platform with third party programs, services,data, hardware, or other materials which otherwise would not result in such infringement claim.
17. Limitation of Liability.
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFULMISCONDUCT, UNPAID AMOUNTS OWED TO GETMEFOODIE BY MERCHANT IN EXCESS OF THEBELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTYWILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE,OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TOGOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ONTORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUMAGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOTEXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THETWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THELIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BYLAW.
During the term of the Agreement and for one year after, each party will maintain adequate insurance inamounts not less than as required by law or that is common practice in such party’s business. Uponrequest, each party will provide the other with current evidence of coverage. Such insurance shall not becancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits ofany insurance policy be considered as limiting the liability of a party under this Agreement.
19. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATEDISPUTES WITH GETMEFOODIE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATIONAGREEMENT”.
1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or inconnection with this contract, including the breach, termination or validity thereof, shall be finally resolvedby binding arbitration, rather than in court, except that (1) you may assert claims in small claims court ifyour claims qualify, so long as the matter remains in such court and advances only on an individual(non-class, non-representative) basis; and (2) you or GetMeFoodie may seek equitable relief in court forinfringement or other misuse of intellectual property rights (such as trademarks, trade dress, domainnames, trade secrets, copyrights, and patents). GetMeFoodie and Merchant agree that, because both arebusiness entities that mutually benefit from streamlined and confidential resolution, this ArbitrationAgreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or therelationship between the parties and their personnel. In that regard, this Arbitration Agreement shall bebinding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers,directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to allclaims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEENFILED AGAINST GETMEFOODIE—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPTTO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOUELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITHGETMEFOODIE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN ORSEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/ORREPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOURCLAIMS AGAINST GETMEFOODIE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IFSUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
2. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Actin all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration anddescribing your claim to GetMeFoodie’s registered agent. The arbitration will be administered by theInternational Centre for Dispute Resolution Canada under its rules and pursuant to the terms of thisAgreement before one arbitrator mutually agreed upon by the parties, and if no agreement can bereached within thirty (30) days of commencement of arbitration, then by one arbitrator appointed by theICDR. The arbitration shall take place in Edmonton, Alberta, or any other jurisdiction mutually agreedupon by Merchant and GetMeFoodie. The arbitration shall be conducted in accordance with the ICDRarbitration rules then in effect. Payment of all filing, administration, and arbitration fees will be governedby ICDR’s rules. If ICDR is not available to arbitrate, the parties will select an alternative arbitral forum.You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
3. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall haveexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability orformation of this Arbitration Agreement including, but not limited to any claim that all or any part of thisArbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of youand GetMeFoodie. The arbitration proceeding will not be consolidated with any other matters or joinedwith any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive ofall or part of any claim or dispute. The arbitrator will have the authority to award monetary damages andto grant any non-monetary remedy or relief available to an individual under applicable law, the arbitralforum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a writtenstatement of decision describing the essential findings and conclusions on which any award (or decisionnot to render an award) is based, including the calculation of any damages awarded. The arbitrator shallfollow the applicable law. The arbitrator has the same authority to award relief on an individual basis thata judge in a court of law would have. The arbitrator’s decision is final and binding on you and GetMeFoodie.
4. Waiver of Jury Trial. YOU AND GETMEFOODIE WAIVE ANY CONSTITUTIONAL AND STATUTORYRIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and GetMeFoodie areinstead electing to have claims and disputes resolved by arbitration, except as specified in Section 19(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
5. Waiver of Class or Consolidated Actions; Severability. YOU AND GETMEFOODIE AGREE TOWAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATIONAGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS ANDDISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ONAN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANTCANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANYOTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemedinvalid or unenforceable with respect to a particular claim or dispute, neither you nor GetMeFoodie isentitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolvedin a court as set forth in Section 20, and all other provisions of this Section 19 (Dispute Resolution) shallremain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, inwhole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19.
6. Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor GetMeFoodie canforce the other to arbitrate as a result of this Agreement. To opt out, you must notify GetMeFoodie inwriting of your intention to opt out by sending a letter, by First Class Mail, to GetMeFoodie, GBTS Inc.,1007 117A ST SW, Edmonton, AB, T6W0B7. Any attempt to opt out by email will be ineffective. To beeffective, your opt-out notice must be postmarked no later than 30 days after your first order on thePlatform. Your notice must include your name and address, your GetMeFoodie username (if any), theemail address you used to set up your GetMeFoodie account (if you have one), and a CLEAR statementthat you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant,and letters that purport to opt out multiple merchant will not be effective as to any. No merchant (or his orher agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of thisArbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of thisArbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
8. Survival. This Arbitration Agreement will survive any termination of your relationship with GetMeFoodie.
9. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that ifGetMeFoodie makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
20. Litigation Class Action Waiver: To the extent allowed by applicable law, separate and apartfrom the Mutual Arbitration Provision found in Section 19, Merchant agrees that any proceeding tolitigate in court any dispute arising out of or relating to this Agreement, whether becauseMerchant opted out of the Arbitration Provision or any other reason, will be conducted solely onan individual basis, and Merchant agrees not to seek to have any controversy, claim or disputeheard as a class action, a representative action, a collective action, a private attorney-generalaction, or in any proceeding in which Merchant acts or proposes to act in a representativecapacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent ofall parties to any such proceeding. If a court of competent jurisdiction determines that all or partof this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, theremainder of this Agreement shall remain in full force and effect.
21. Franchisees.Franchisees operating a restaurant concept licensed by Merchant may participate inthe Program pursuant to the terms and conditions of this Agreement provided that the individualfranchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement insubstantially the same form as the Supplemental Agreement provided by GetMeFoodie to the Franchisee.22. Partner Code of Conduct. Merchant agrees to comply with the Partner Code of Conduct whichmay be updated by GetMeFoodie from time to time.
23. Communications from GetMeFoodie. Merchant agrees to accept and receive communications fromGetMeFoodie or Carriers, including via email, text message, calls, and push notifications to the cellulartelephone number Merchant provides to GetMeFoodie. Merchant acknowledges that Merchant mayreceive communications generated by automatic telephone dialing systems and/or which will deliverpre-recorded messages sent by or on behalf of GetMeFoodie, its affiliated companies and/or Carriers.Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP”from the mobile device receiving such messages.
24. General Provisions.
As set forth on the Sign-Up Sheet between Merchant and GetMeFoodie, the Sign-Up Sheet and theseTerms constitute an integrated Agreement between the parties, which supersedes all prior agreementsand communications of the parties, oral or written, with respect to the subject matter hereof. The rightsand obligations set forth in these Terms, which by their nature should, or by their express terms do,survive or extend beyond the termination or expiration of these Terms shall so survive and extend. ThisAgreement is governed by and interpreted in accordance with the laws of the Province of Alberta withoutregard to the conflicts of laws principles thereof. Merchant may not assign this Agreement in whole or inpart without GetMeFoodie’s prior written consent. GetMeFoodie may freely assign this Agreement. ThisAgreement is binding upon, and ensures to the benefit of, the employees, representatives, agents,affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall notconfer any rights or remedies upon any third party. All notices, requests, consents and othercommunications under the Parties' agreements must be in writing, and delivered by overnight courier tothe addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder).GetMeFoodie’s address is 1007, 117A ST SW, Edmonton, AB, T6W 0B7. If any provision of thisAgreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality orunenforceability will not affect any other provisions of this Agreement, and this Agreement will beconstrued as if such invalid, illegal or unenforceable provision had never been contained here.
PARTNER CODE OF CONDUCT
Effective: Dec 1, 2020
● COMPLIANCE WITH LAWS
o Labor, Health, and Safety
o Data and Information Privacy
o Intellectual Property and Confidential Information
o International Trade and Export Controls
● ACCURATE BOOKS AND RECORDS AND AUDIT RIGHTS
● REPORTING CONCERNS
GetMeFoodie is committed to operating with the highest degree of integrity and in compliance with all applicable laws. We require our merchants, suppliers, distributors, agents, representatives, and other business partners, as well as their employees, agents, representatives, and subcontractors (collectively, “Partners”), to share in this commitment.
GetMeFoodie requires Partners to agree to abide by all applicable laws, including anti-bribery and anti-harassment laws, and this Partner Code of Conduct (the “Code”). Failure to comply with this Code will be considered a breach of the Partner’s contract with GetMeFoodie and may result in GetMeFoodie terminating the business relationship with the Partner immediately.
COMPLIANCE WITH LAWS
All GetMeFoodie Partners must comply with all applicable laws and regulations, including, but not limited to, those set forth below:
Labor, Health, and Safety
Partners must strictly comply with all applicable labor, health, and safety laws and regulations in all markets in which they operate.
Partners must prohibit unlawful discrimination or harassment in the workplace, which includes any behavior that creates an intimidating, unsafe or hostile environment, and such prohibition extends to the behavior of Partner’s personnel toward any consumer or GetMeFoodie personnel. Partners must comply with the local minimum wage and maximum working hours requirements, and may not use forced, involuntary, or child labor.
Partners must provide all employees with safe and healthy working conditions, including by offering emergency training and resources, practicing industrial hygiene, and enacting equipment safety initiatives, as appropriate.
Partners are strictly prohibited from, directly or indirectly, promising, giving, or authorizing the provision of anything of value to secure an improper advantage, to induce anyone to improperly perform a function or duty, to reward anyone for the improper performance of a function or duty, or with the belief that the acceptance of the thing of value is improper. A thing of value includes, but is not limited to, money, gifts, favors, donations, meals, and entertainment, regardless of amount.
Partners must comply with all applicable anti-corruption laws, including the Canadian Corruption of Foreign Public Officials Act, as well as any other applicable laws and regulations prohibiting public or commercial bribery, extortion, kickbacks, or other unlawful or improper means of conducting business.
Partners are prohibited from promising, giving, or authorizing the provision of “facilitating payments” to expedite or secure the performance of non-discretionary, routine governmental duties, even if permitted by the FCPA or local laws. Partners may never offer, promise, or give, gifts, hospitality and/or travel to government officials on GetMeFoodie’s behalf for the purpose of improperly obtaining or retaining business or securing an improper business advantage.
Partners may not request, agree to accept, or accept a thing of value as a reward or in exchange for improperly performing any activity related to GetMeFoodie’s business or if doing so reasonably could be viewed as compromising the Partner’s ability to make objective decisions on behalf of GetMeFoodie.
Partners must comply with all applicable laws and regulations regarding fair competition and antitrust.
Data and Information Privacy
Partners must comply with all applicable data privacy laws and regulations when processing the personal or identifying information of anyone with whom they conduct business, including but not limited to, suppliers, customers, consumers, and employees. Partners must also strictly safeguard the data and information privacy of any GetMeFoodie-related information. Partners agree to make reasonable efforts to keep data secure and confidential at all times.
Intellectual Property and Confidential Information
Partners may not share or disclose GetMeFoodie’s intellectual property, confidential information, or any other proprietary information that the Partner acquires through its engagement with GetMeFoodie to third parties. This includes, but is not limited to, information developed by the Partner in connection with its engagement with GetMeFoodie, and any information relating to products, consumers, pricing, costs, strategies, programs, processes, and practices.
International Trade and Export Controls
Partners must comply with all applicable import, export, customs, sanctions, embargoes, boycott and other trade compliance laws and regulations.
Partners must conduct their operations in ways that are environmentally responsible and in compliance with all environmental laws, regulations, and standards. As part of this commitment, Partners should act to promote energy efficiency, reduce pollution, and conserve resources.
ACCURATE BOOKS AND RECORDS AND AUDIT RIGHTS
Partners must keep accurate books, accounts, and records for all transactions related to business with GetMeFoodie. As part of its commitment to transparency, Partners are required to cooperate fully with GetMeFoodie in any government audits to the extent relevant and applicable to Partner.
Partners are prohibited from using fictitious, inaccurate, or misleading documents to support transactions related to business with GetMeFoodie, and are prohibited from engaging in false or misleading accounting practices, such as using undisclosed or unrecorded payments.
It is the obligation of every Partner to immediately report any known or suspected violations by Partner’s employees or representatives, as well as by GetMeFoodie’s employees and representatives, of this Partner Code of Conduct. Reports can be made by sending an email to admin@@getmefoodie.com
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