This Restaurant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant"), and MealHi5 LLC. and its affiliates (collectively, "MealHi5"), regarding the Restaurant's use of MealHi5' website, currently located at www.MealHi5.com (including the webpages contained or hyperlinked therein and owned or controlled by MealHi5, the "Website"), and the Restaurant's inclusion in applicable services provided by MealHi5 via the Website (as determined by MealHi5 from time to time and in its sole and absolute discretion) and such other media or media channels, devices, software, or technologies as MealHi5 may choose from time to time (the "MealHi5 Services").
The Restaurant agrees to provide, and thereafter maintain and promptly update for so long as the Restaurant this Agreement is effective, true, accurate, current and complete information regarding the Restaurant as is requested during the Restaurant's registration process via the Website (the "Registration Process").
MealHi5 may perform a variety of marketing activities to promote the Restaurant and the Restaurant's menu, many of which are described on the Website; provided, however, that all such marketing activities will be determined in MealHi5Hour's sole and absolute discretion and the Website may be changed, without notice and from time to time, to reflect any such changes.
The Restaurant will provide MealHi5 with the Restaurant's current menu, and any updates, changes, or modifications thereto (the "Restaurant Menu"), in such format as is requested by MealHi5 (collectively, the "Marketing Materials") for MealHi5' inclusion in the Website and the MealHi5 Services or for any marketing or advertising activities undertaken by MealHi5, in its sole and absolute discretion (the "MealHi5 Marketing Activities"). The Restaurant hereby grants to MealHi5 a non-exclusive, transferable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for any purpose, including marketing, commercial, advertising, promotional activities or otherwise, and with a right to sublicense, in connection with the Website, the MealHi5 Services, or the MealHi5 Marketing Activities; and, in connection with MealHi5' exercise of the license rights granted by the Restaurant, MealHi5 may prepare derivative works of, or incorporate into other works, all or any portion of the Marketing Materials. The license rights granted hereby will apply to any form, media, or technology now known or hereafter developed. MealHi5 does not assert any ownership over the Marketing Materials; rather, as between MealHi5 and the Restaurant, and subject to the rights granted to MealHi5 herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
We do take customer satisfaction very seriously and, in addition to contacting the applicable Restaurant directly, we ask that you notify MealHi5 of all complaints or concerns that you might have regarding the Restaurants.
The Restaurant acknowledges and agrees that the end-user customers of the MealHi5 Services (the "Customers") may place orders with the Restaurant, through the MealHi5 Website or other media or media channels, devices, software, or technologies as may be included within the MealHi5 Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant Menu (the "Customer Orders"). Upon placement of such a Customer Order, MealHi5 will send written confirmation thereof to the Restaurant via the fax number or email address currently in the Restaurant's Website account information or via such other delivery method as MealHi5 and the Restaurant may agree upon (the "Order Confirmation"), and which Order Confirmation contains a confirmation code for the Customer Order. MealHi5 currently follows the Order Confirmation with an automatic telephone call (the "Phone Confirmation"), which requests that the Restaurant confirm receipt of the Order Confirmation by entering the Customer Order's confirmation code; these Phone Confirmations may be recorded, and the Restaurant hereby consents to such recording (and will notify all of its employees and service providers that receive the Phone Confirmations that the call may be recorded).
When the Restaurant provides a Customer with the applicable Customer Order (either via pick-up or delivery), the Restaurant agrees to have the Customer sign the MealHi5 Order Receipt Form. The Restaurant agrees to keep a copy of each signed Order Receipt Form for at least 3 months following the date of the applicable Customer Order, and the Restaurant will promptly deliver to MealHi5 copies of these executed Order Receipt Form upon request by MealHi5.
MealHi5 Services currently allow a Customer to pay for a Customer Order via credit card, PayPal®, or through payment directly to the Restaurant. If the Customer Order is paid via credit card or PayPal, the full purchase price for such Customer Order, including sales and any other applicable taxes, shall be processed and received by MealHi5 and, at least once per calendar month, MealHi5 will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by MealHi5, less MealHi5' commission percentage (the "Commission Percentage") and the applicable credit card merchant payment processing fee, via direct bank deposit or check (the "Processing Fee"). The applicable Commission Percentage and Processing Fee are set below. If the Customer Order is to be paid directly to the Restaurant, then, at least once per calendar month, MealHi5 may invoice the Restaurant for the Commission Percentage due on applicable Customer Orders, and the Restaurant shall pay such invoice within fifteen days of receipt; payment shall be made within 15 days of receipt of the applicable invoice and via either credit card or check at MealHi5' sole and absolute discretion. Late payments will bear interest at a rate equal to the lesser of one percent (1%) per month (or portion thereof) or the maximum interest rate otherwise permitted by applicable law.
The Commission Percentage shall mean 10% of Restaurant's Net Sales, as defined below. "Net Sales" means the gross amount charged by Restaurant to any customer that is attributable to any order through the MealHi5 Service, less all: (a) taxes (e.g., sales) other than taxes based upon Company’s net income, (b) gratuities, and (c) amounts allowed or credited due to returns.
The following table sets forth the applicable Processing Fee for all permitted credit card merchants :
Notwithstanding anything to the contrary herein, the Restaurant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Restaurant's use of the Website and the MealHi5 Services. MealHi5 may charge and collect sales tax from Customers as an agent on behalf of the Restaurant in accordance with instructions provided by the Restaurant or applicable law; and, in which case, MealHi5 will collect such sales tax solely as an agent on behalf of the Restaurant and shall pay such amount collected to the Restaurant (or as may be otherwise required by applicable law). The Restaurant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. Sales tax shall include any sales, use, privilege, gross receipts, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Restaurant.
Cash Coupons are a great way for Restaurant to increase sales and promote its Restaurant on MealHi5. Cash Coupons give Customers with valid MealHi5 accounts the ability to receive discount credits (not cash) on future purchases from participating Cash Coupon restaurants. The Cash Coupons accrue in the Customer's account until (i) they expire thirty (30) days from the order date, (ii) they are applied against a future order with a participating restaurant or (iii) the Customer's account is closed.
Restaurant selects the discount percent amount to be applied to the Customers' Cash Coupons in the Restaurant's administration account page, which may be modified at any time. When a Customer places a Customer Order, the discount percent is applied against the amount owed by Customer for the Customer Order (the "Discount Amount") and added as a credit to the Customer's Cash Coupon account. MealHi5 automatically deducts the Discount Amount from the amount otherwise payable to the Restaurant for that Customer Order. When a Customer places another Customer Order with Restaurant within the next thirty (30) days, Restaurant will receive its normal share of the revenue, unless the Restaurant remains enrolled in the Cash Coupon program and another Discount Amount is applied.
The individual and monthly total Cash Coupon reports are available on the Restaurant account page. Restaurant may terminate its participation in the Cash Coupon program at any time without penalty or cost on the Restaurant's account page. The Cash Coupons have no cash value and are not transferable, unless otherwise required by law.
The Restaurant hereby represents, warrants, and covenants that:
a. the prices charged to Customers through the MealHi5 Services will not be higher than those charged to any customers that place orders directly with the Restaurant;
b. it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Restaurant's operation of its business.
c. it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by MealHi5' then-current policies;
d. it bears all risks to persons and property arising from its (or its employees' or service providers') contact therewith, and waives, and agrees to indemnify MealHi5 for, any and all claims relating thereto against MealHi5.
e. the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant's Marketing Materials pursuant to the license rights granted to MealHi5 by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party; and
f. The Restaurant's Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
Excluding the Marketing Materials, all of the content on the Website and included in the MealHi5 Services (including without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics, the "MealHi5 Content"), including the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to MealHi5, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All MealHi5 graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of MealHi5 in the U.S. and/or other countries. MealHi5' trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of MealHi5. The Restaurant agrees not to circumvent, disable or otherwise interfere with any security related features of the Website or the MealHi5 Services, or any other features that seeks to either prevent or restrict the use or copying of any MealHi5 Content or enforce limitations on use of the Website, the MealHi5 Services, or the MealHi5 Content therein.
This Agreement is effective upon the Restaurant's initial Registration Process and will remain in full force and effect for so long as the Restaurant is included on the Website as part of the MealHi5 Services. Either MealHi5 and the Restaurant may terminate this Agreement any time, for any reason, with or without notice by providing written notice to the other. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. MealHi5 will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant), remove the Restaurant from inclusion in the MealHi5 Services and the Website.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
If there is a dispute between the Restaurant and a Customer, the Restaurant understands and agrees that MealHi5 is under no obligation with respect thereto, and the Restaurant, to the fullest extent permitted by law, hereby releases MealHi5 and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the MealHi5 Services.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement, the Website, or the MealHi5 Services shall be governed and construed by the law of the State of Delaware, excluding such state's conflicts of law rules. Any legal action of whatever nature by or against MealHi5 arising out of or related in any respect to this Agreement, the Website, or the MealHi5 Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over Delaware, and the Restaurant hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with MealHi5 subject, however, to the right of MealHi5, at MealHi5' sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. The Restaurant hereby consents to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by the Restaurant related in any way to this Agreement, the Website, or the MealHi5 Services be instituted more than two (2) years after the cause of action first arose.
TO THE FULLEST EXTENT PERMITTED BY LAW, MEALHI5 AND ITS AFFILITES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE AND THE MEALHI5 SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MEALHI5 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S OR THE MEALHI5 SERVICES' CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE RESTAURANT'S ACCESS TO AND USE OF THE WEBSITE AND THE MEALHI5 SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF MEALHI5' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR OTHERWISE WITH RESPECT TO THE MEALHI5 SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE MEALHI5 SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE MEALHI5 SERVICES.
IN NO EVENT SHALL MEALHI5 OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO RESTAURANT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE WEBSITE OR THE MEALHI5 SERVICES, EVEN IF MEALHI5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, MEALHI5' LIABILITY TO RESTAURANT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE RESTAURANT TO MEALHI5 FOR THE MEALHI5 SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE RESTAURANT, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE RESTAURANT, AND THE RESTAURANT MAY HAVE ADDITIONAL RIGHTS.
IF THE RESTAURANT IS A DELAWARE RESIDENT, THE RESTAURANT WAIVES DELAWARE CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Restaurant hereby agrees to defend, indemnify and hold MealHi5 and its affiliates, and each of their respective directors, officers, employees, services providers, and agents (collectively, the "MealHi5 Indemnitees") harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any party due to or arising out of the Restaurant's Marketing Materials, the Website, the MealHi5 Services, or any breach by the Restaurant of this Agreement. Notwithstanding the foregoing, MealHi5 reserves the right, at the Restaurant's expense, to assume the exclusive defense and control of any matter for which the Restaurant may be required to indemnify an MealHi5 Indemnitee, and the Restaurant agree to cooperate, at the Restaurant's expense, with MealHi5' defense of such claims. MealHi5 will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding which may be subject to this indemnification upon MealHi5 becoming thereof.
The Restaurant shall at all times maintain comprehensive public liability insurance (which may be under a blanket policy), issued by a licensed insurer rated A+10 or better in "Best's Insurance Guide", insuring the Restaurant against any liability arising out the lease, use, occupancy of maintenance of its premises and all areas appurtenant thereto and the operation of the business, which will have a limit of not less than $2,000,000 combined single limit for injury to, or death of, one or more persons per occurrence, and for damage to tangible property per occurrence.
Except as explicitly stated otherwise, any notices given to MealHi5 shall be given by email to Info@MealHi5.com. Any notices given to the Restaurant shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Restaurant from time to time) provided, however, that MealHi5 may also give notices via regular mail.
Additionally, the Restaurant may contact MealHi5 at the address, fax, and telephone number provided below (as may be updated by MealHi5 from time to time) with respect to any complaint regarding the MealHi5 Services or to receive further information regarding the MealHi5 Services.
MealHi5.com Email: Info@MealHi5.com Phone: 855-242-0424
This Agreement constitutes the entire agreement between the Restaurant and MealHi5 regarding the use of the MealHi5 Services provided, further, that the Restaurant's use of and access to the Website and the MealHi5 Services shall also be subject to the Term of Use. The failure of MealHi5 to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Restaurant's account with MealHi5 (including the Website and the MealHi5 Services) may not be assigned by the Restaurant without MealHi5' express written consent. MealHi5 may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
MealHi5 may modify this Agreement from time to time, and any such changes will (i) be reflected on the Website, (ii) be effective 30 calendar days after being so posted on the Website, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Restaurant agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Website to keeping the Restaurant's contact information (as indicated in the Restaurant's account details via the Website) current.
Notwithstanding anything to the contrary herein, MealHi5 reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Website and the MealHi5 Services (or any part thereof) with or without notice. The Restaurant agrees that MealHi5 shall have no liability to the Restaurant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the MealHi5 Services.