247Waiter, Inc. Agreement
Software Application: 247Waiter, Inc. will provide restaurant a comprehensive online ordering and marketing website.
247Waiter, Inc. agrees to:
- Provide restaurant with access to the software at the below-identified location or at such locations as may be mutually agreed upon.
- Provide access to administrative tools so that restaurant may manage their menu and website.
- Provide dependable customer service through email and an 800 number that is listed on the 247Waiter, Inc. website.
- NOT require a contract from restaurant owner and restaurant owner is FREE to cancel at any time.
- use commercially reasonable efforts to maintain all software, websites and networks in excellent condition (99.9% uptime);
- bill restaurant's end-user customers and
- Pay the resulting amount of each 247Waiter, Inc.-facilitated transaction, less Transaction Fees, at the end of each week or daily deposits (24-48 hours after settlement).
Restaurant Owner agrees to:
- Ensure that the Restaurant information submitted to 247Waiter, Inc. is accurate and complete.
- Provide 247Waiter, Inc. bank account information, including but not limited to account number and routing number, so that 247Waiter, Inc. may credit and, as necessary, debit restaurant's bank account as permitted by this agreement. Restaurant Owner must also sign ACH transaction permission document.
- Receive online orders via the restaurant website software by facsimile and e-mail.
- Remit all required sales taxes to the appropriate taxing authority in connection with all 247Waiter, Inc. facilitated transactions; indemnify 247Waiter, Inc. for any failure to do so.
Payment: Restaurant owner shall pay 247Waiter, Inc. for the website software as follows:
- 247Waiter, Inc. Monthly Fee per restaurant location: $35/month or $45/month as per mutual agreement. Restaurant owner will also receive online marketing support for the higher plan.
- Credit Card Transaction Fees (if applicable for orders paid by restaurant customers by credit card):
- Visa/MasterCard Sales Charges: 2.5% of Visa/MasterCard Total Sales.
- American Express/Discover Sales Charges: 3.5% of American Express/Discover Total Sales.
- All credit card sales also include a $0.25 per transaction charge.
- Order Transmission Fee: $0.20 ($45 Plan) or $0.25 ($35 Plan) per order (Sending restaurant facsimile, text message, call and email).
- Statement Fee: $0.50 per monthly statement.
- Credit Card Chargeback Fees: Restaurant is responsible for chargeback fees and losses if a customer disputes a credit card transaction.
- Restaurant Owner is also responsible for all other transaction fees related to chargebacks.
Pass-Through Credit Card Billing Description: 247Waiter, Inc. will charge a monthly fee for the use of its software. 247Waiter, Inc. and will act as the Merchant of Record on all orders and charge 2.5% of Total Sales on credit card sales placed using a Visa or MasterCard and 3.5% of Total Sales on all credit card sales using an American Express or Discover card (Restaurant may use their own merchant account). 247Waiter, Inc. will charge $0.25 per transaction for all online credit card transactions, including all sales, voided sales, and refunds, covering online billing gateway fees, sales authorization fees, and credit card per-transaction charges.
At Restaurant Owner's option, 247Waiter, Inc. will make payments to Restaurant as follows:
- 247Waiter, Inc. will make a weekly (or daily within 24-48 hours after settlement) payment by ACH transfer to Restaurant's bank account per information then on file in 247Waiter, Inc.'s records.
- The amount of such periodic payment will be the total net receipts from customer transactions for that period, after deduction of all fees and expenses to which 247Waiter, Inc. is entitled per this agreement.
247WAITER, INC. PROVIDES THE APPLICATION EXPRESSLY CONDITIONED UPON AND SUBJECT TO 247WAITER, INC.'s STANDARD TERMS OF SERVICE (LINK LOCATED ON BOTTOM OF HOMEPAGE) AND CONDITIONS INCLUDED WITH THIS AGREEMENT, WHICH TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE HEREIN. RESTAURANT OWNER'S ACKNOWLEDGMENT OF THESE TERMS OF AGREEMENT BELOW SHALL CONSTITUTE RESTAURANT'S AGREEMENT TO THIS AGREEMENT. THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE.
247WAITER, INC. TERMS AND CONDITIONS
Article 1. LICENSES; OWNERSHIP
1.1 Website Software. Subject to these Terms and Conditions, 247waiter, Inc. shall provide Restaurant with access to the software. Restaurant shall pay 247waiter, Inc. for the website software as set forth above. The parties shall perform their respective obligations as set forth herein.
1.2 License Grant. While this Agreement is in effect, and provided restaurant is current in its payment of all fees, 247waiter, Inc. shall grant to restaurant a nonexclusive, nonsublicensable, royalty-free limited right and license to access and use the website software for restaurant's business purposes.
1.3 Ownership. Notwithstanding the foregoing license grant, 247waiter, Inc. retains exclusive ownership of all title, copyright and other proprietary rights in and to the website software. The parties further agree that all end-user customer data shall be owned by 247waiter, Inc. and 247waiter, Inc. allows restaurant to use such data for their marketing efforts.
1.4 Trademark License. Each party ("Grantor") hereby grants to the other party ("Grantee") a nonexclusive, nontransferable right to use the Grantor's trademarks, service marks, logos, trade names, trade dress and URLs ("Trademarks") only for the limited purpose of performing obligations expressly identified in this Agreement. Each party shall abide by any Trademark usage guidelines made available by either party. Neither party shall use the other party's logos or trademarks in any way that would disparage or injure the other party's reputation or in such a manner that would be deemed endorsement or sponsorship of such other party's products or services.
Article 2. CONFIDENTIALITY; PRIVACY
2.1 Confidential Information. Each party understands that the other party has disclosed or may disclose proprietary or confidential information relating to the disclosing party's business (hereinafter referred to as "Confidential Information"). "Confidential Information" shall include information disclosed in tangible or written form (including e-mail and the like) and marked "Confidential" or "Proprietary" (or the like) or information that by its nature would be generally understood to be confidential or proprietary at the time of disclosure.
2.2 Treatment of Confidential Information. The receiving party agrees (i) to take reasonable precautions to protect the disclosing party's Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information. The disclosing party agrees that the foregoing shall not apply with respect to any information that the receiving party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the disclosing party, (c) was rightfully disclosed to it without restriction by a third party or (d) was independently developed without use of any Confidential Information of the disclosing party. A receiving party may disclose Confidential Information pursuant to law or court order, provided that it gives adequate prior notice of such disclosure to the other party to permit that party to seek protective orders or other confidential treatment therefore.
Article 3.
DISCLAIMER. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Article 4.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, EVEN IF ADVISED OF THE POTENTIAL FOR SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE OTHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THE PERFORMANCE OF THIS AGREEMENT (OTHER THAN ACCRUED PAYMENT OBLIGATIONS).
Article 5.
GENERAL PROVISIONS. The parties are independent contractors and not joint ventures or partners, and neither party shall have the authority to bind the other. This Agreement may be executed in one or more counterparts, each of which shall be deemed and original, and together shall constitute one in the same instrument. Any notices to be given hereunder by either party to the other may be hand delivered or sent by overnight courier to the parties' addresses as set forth herein (or to such other address designated by a party). This Agreement supersedes all other agreements between the parties with respect to the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of Virginia. This Agreement may not be assigned by Restaurant without the prior written consent of 247Waiter.com Inc. This Agreement shall be binding upon, and inure to the benefit of, any successor or permitted assign of the parties. The parties agree that if any provision of this Agreement is or becomes unenforceable or invalid for any reason, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of the Agreement shall be binding and in full force and effect. No delay or omission by any party enforcing any of its rights or remedies hereunder will impair such rights or remedies or be deemed to be a waiver or continuing waiver thereof.
Article 6.
247Waiter, Inc. uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells.