Terms & Conditions
This Restaurant Delivery Marketing Agreement (“Agreement”) is entered into and made effective as the date listed in the above table (“Effective Date”) by and between DeliverClub Inc., a Delaware corporation, (“DeliverClub”) and Restaurant listed in the above table (“Restaurant”).
WHEREAS, Restaurant has agreed to hire DeliverClub for marketing and or online ordering technology as well as coordinating with Delivery Service Provider (“DSP”) to facilitate delivery services. It is intended that DeliverClub will provide marketing promotion, assistance with payment processing, and coordination with DSP and their Delivery Services (the “DS”) to allow for seamless payment collection and delivery of the Restaurant’s food to its end customers. As such DeliverClub intends to serve as a service based vendor to assist the Restaurant in completion of its core business.
THEREFORE, the parties, intending to be legally bound, agree as follows:
- Engagement. Restaurant hereby engages DeliverClub for a continuous service Agreement (the “Agreement Period”).
- Service and Marketing Duties of DeliverClub. During the Agreement Period, DeliverClub shall coordinate with Restaurant utilizing its API and other interface items, thereby to ensure that orders for delivery placed by the customers are delivered in a timely fashion to the customer by and through various DS and or DSP. DeliverClub will directly promote and encourage the marketing of Restaurant directly to consumers to assist with order placement utilizing various web platforms and API’s. Further, DeliverClub will ensure proper operation of Restaurant’s payment processing/merchant account to collect all necessary fees. This includes the routing of Delivery Service Charge directly to the DSP.
If Restauant elects to utilize DeliverClub’s online menu services to market their own online orders for both takeout and delivery, DeliverClub agrees to set up and maintain said web portal and to assist with ecommerce integration.
- Duties of Restaurant. Restaurant bears the sole responsibility for preparing, packaging, checking, completing and releasing the order to the Delivery Service. This includes labeling the containers in the order with the name of the food, contents, and/or customer name by utilizing a pen or marker with clear legibility. Restaurant is ultimately responsible for the collection of customer payments and making all applicable payments to its vendors. DeliverClub does offer assistance and processes to streamline this process and to help ensure correct routing of proceeds to the restaurant’s marketing, software and delivery vendors.
- Routing of Funds. On all transactions, both parties agree to reconcile funds owed on a monthly basis unless otherwise agreed upon.
- Restaurant will be required to file a 1099 form directly to DeliverClub for entire portion of any Commission’s paid.
- Delivery Failure Refund Protocol. While it is the goal of this agreement to provide timely and efficient delivery of all Restaurant’s items, it is inevitable that eventually a delivery will be unsuccessful. Refunds will be processed in accordance with the Delivery Guidelines & Refund Matrix attached to this agreement.
- No Joint Venture Relationship Created. The relationship of DeliverClub to Restaurant under this Agreement is and shall be that of an independent contractor. Nothing shall prohibit DeliverClub from providing services to others. DeliverClub shall be free to use any methods DeliverClub may reasonably desire, and to employ any ideas, which DeliverClub determines will be helpful in the performance of DeliverClub’s duties under Section 2 DeliverClub shall be required to devote only so much time, energy and skill in performance of such duties as may be necessary to complete such duties in a timely and competent manner. DeliverClub shall not be considered, under the provisions of this Agreement or otherwise, to be a partner, employee or joint venturer of Restaurant. Neither DeliverClub on the one hand, nor Restaurant on the other, shall exercise any control over the activities and operations of the other with respect to the matters contemplated by Section 2 above except as expressly set forth in that Section.
- Restaurant grants DeliverClub’s network, a limited license to use Restaurant’s trademarks and menus in literature, websites or other documentation distributed by DeliverClub to prospective customers and for no other purposes whatsoever.
- Termination of Agreement. Either party may terminate this agreement for any reason by providing notice via a written or email notice. Termination will be completed within 14 days.
- The parties hereto agree not to disclose any of the terms and conditions of this Agreement to any third party unless required by law, with the exception of those persons who have a direct interest therein, such as: attorneys, accountants, bankers, etc. It is further agreed that both parties shall keep confidential any and all information they receive or learn regarding the business or operations of the other party. This includes but is not limited to: trade secrets, methods of reaching out to customers or operation of core or ancillary business models.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
- Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous written and oral negotiations, discussions and agreements.
- If any provision or provisions of this Agreement shall be held to be in whole or in part invalid, illegal or unenforceable in any jurisdiction, or if any governmental agency or authority shall require the parties to delete any provision of this Agreement, such invalidity, illegality, unenforceability or deletion shall not impair or affect the remaining provisions of this Agreement or the validity or enforceability of such provisions in any other jurisdiction. The parties shall endeavor, in good faith negotiations, to replace the invalid, illegal, unenforceable or deleted provision by valid provisions the effect of which comes as close as legally possible to that of the invalid, illegal, unenforceable or deleted provision.
- Modifications & Waiver. This Agreement may not be amended or supplemented, and no provision hereof may be waived, unless such amendment, supplement or waiver is in writing and signed by the party sought to be bound thereby. No waiver of any provision hereof shall be deemed to be a waiver of any other provision, and no waiver in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such provision unless expressly agreed to by the party waiving such provision.
- Full Authority. Each of the parties to this Agreement represents and warrants to the other that it has full right, power, legal capacity and authority to enter into this Agreement and perform its obligations hereunder, and each undersigned signatory represents and warranties that he or she has full power and authority to execute and deliver this Agreement on behalf of the party for whom the undersigned is executing this Agreement.
- Successors & Assigns. The rights and obligations of each party under this Agreement shall not be assignable or otherwise transferable without the prior written consent of the other, except that Restaurant may assign all of its rights and obligations under this Agreement to any person or entity in connection with the transfer or sale of all or a portion of its business or the merger or consolidation of the Restaurant with or into any other company so long as such transferee, purchaser or surviving company shall assume such obligations of Restaurant.
- This Agreement may be signed in counterparts, each of which shall be an original but both of which taken together shall constitute one and the same instrument.