THESE CLIENT TERMS AND CONDITIONS (THE “TERMS”) GOVERN YOUR USE AND ACCESS TO THE SAAS-BASED RESERVATION AND GUEST MANAGEMENT PLATFORM (THE “PLATFORM”) AND RELATED PROFESSIONAL SERVICES (THE “SERVICES”) PROVIDED BY SEVENROOMS INC. (“SEVENROOMS”). BY EXECUTING AN ORDER FORM REFERENCING THESE TERMS AND SPECIFYING THE VENUE USING THE PLATFORM (THE “VENUE”), YOU (“CLIENT” OR “YOU”) AGREE TO BE BOUND BY THESE TERMS AND THE ORDER FORM (COLLECTIVELY, THE “AGREEMENT”). ANY TERMS USED BUT NOT DEFINED HEREIN WILL HAVE THE MEANING ASSIGNED TO THEM IN THE ORDER FORM.
1. THE PLATFORM.
1.1 Platform Components. The Platform currently consists of any combination of the components: Table Management System, Waitlist, 7x, Direct Delivery Connection Platform, and Contactless Order and Pay (collectively, the “Platform Components”). Notwithstanding the foregoing, SevenRooms may update the foregoing and/or customize any elements thereof and particular Platform Components shall only be provided as set forth in any Order Form.
1.2. Component-Specific Terms. In the event Client elects to use the Direct Delivery Connection Platform or Contactless Order and Pay portions of the Platform, the applicable terms and conditions set forth in Addendum A hereto shall also apply. Other Platform Components and/or additional Services may be made subject to additional terms and conditions of use which may either be (i) set forth on an applicable Order Form or and/or (ii) described more specifically on a mutually agreed amendment to Schedule A hereto.
2.1. Grant. SevenRooms grants Client a limited, non-transferable, non-sublicensable license to access and use the Platform to manage guest services at Client’s venue (individually a “Venue” and collective, the “Venues”) during the Term (the “Subscription”) subject to the Agreement. The Subscription includes the right to (a) make and use a reasonable number of copies of any written or online descriptions of the Platform functionality or related requirements made available to Client (collectively, “Documentation”), and (b) use any changes to the Platform made available to Client by SevenRooms at no additional cost (an “Update”). Updates are applied automatically to the Platform. The Subscription extends to any Client or Venue personnel authorized to use the Platform by Client (“Users”).
2.2. Restrictions. Except as explicitly permitted herein, Client may not, directly or indirectly: (a) modify or create derivative works of the Platform; (b) decompile, reverse engineer, or translate any portion of the Platform into human-readable form (except to the extent expressly allowed by applicable law); (c) rent, lease, share, distribute, or sell the Platform or the Services to any third party; (d) remove, alter or deface proprietary notices or marks in the Platform or Documentation; (e) disclose the results of testing or benchmarking of the Platform; (f) circumvent or disable the Platform’s security, copyright protection, or license management mechanisms, (g) interfere with the Platform’s operation; (h) use the Platform to violate the law or the rights of any third party; or (i) attempt to do any of the foregoing. Client is responsible for providing each User with credentials to access the Platform and ensuring that all Users comply with the Agreement. Client and Users must keep their Platform credentials secure, and immediately inform SevenRooms of any suspected unauthorized use of the Platform. SevenRooms may take any actions it deems reasonable, including denying access to Users or a Venue, for any breach of this Section 2.2.
2.3. Connectivity. Client is responsible for any network or internet connectivity required to access the Platform. Client consents to the processing and storage of Client Information on hardware owned or controlled by SevenRooms and/or its third-party service providers (such as Amazon Web Services).
2.4. Additional Features. An “Add-On” is an optional Platform feature available for an additional fee or otherwise subject to additional terms that will be communicated by SevenRooms and agreed to by Client. Add-Ons may include integrations to Third-Party Services, or guest loyalty and reward programs that may include a brand sponsorship component. Where Add-Ons are subject to additional terms. Client must accept such additional terms prior to accessing the Add-On.
3.1. Support. As part of the Subscription, SevenRooms will (a) use commercially reasonable efforts to promptly resolve issues with the Platform reported through the “support” feature of the Platform or by email to email@example.com, (b) provide Client with all generally released Updates, and (c) provide Client with access to standard Documentation (collectively, the “Support Services”). Additional support may be provided as set forth in the Order Form.
3.2. Training. SevenRooms provides up to three hours of virtual training on the Platform as part of the Implementation. In-person training may be available for an additional fee (and travel costs).
3.3. Implementation. SevenRooms will perform configuration and implementation services (“Implementation”) for each Venue as set forth in the Order Form. Implementation includes account setup and provisioning and floorplan digitization. Implementation is not included in the Support Services described in Section 3.1. Client will designate a single User as Client’s project lead for Implementation. Once Implementation is scheduled by the parties (which may be by email), SevenRooms may charge Client a rescheduling fee of up to ten percent (10%) of the Implementation Fee if Client reschedules.
3.4. SMS Texts. As part of its routine use of the Platform, Venues in countries where texting functionality is supported will be able to send up to 3,000 SMS texts per month to guests to confirm a reservation, waitlist entry or status, and to communicate in free form (each, a “SMS”). Additional SMS texts will be charged by SevenRooms on a country-specific basis at its then-current local rate card.
3.5. Custom Services. SevenRooms may provide additional services to Client (“Custom Services” and, together with the Implementation, the “Services”). The terms, requirements, and pricing for any Custom Services must be forth and agreed to in an Order Form or an amendment thereto.
4. THIRD-PARTY MATERIAL
4.2. Third-Party Content. SevenRooms makes content from third parties, including but not necessarily limited reservation and payment data provided by Third-Party Services, available via the Platform (“Third-Party Content”). SevenRooms is not responsible for the accuracy or completeness of Third-Party Content. If SevenRooms is required to remove Third-Party Content or is notified that certain Third-Party Content may violate applicable law or third-party rights, SevenRooms may remove such Third-Party Content without notifying Client in advance.
4.3. Open Source Software. Certain items of code provided with the Platform are subject to “open source” or “free software” licenses (“OSS”), a list of which is available in the Documentation as necessary. OSS is not subject to the terms and conditions of this Agreement, except for this section and the disclaimers and limitations of liability. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, the terms of any applicable end-user license for the OSS.
5. INTELLECTUAL PROPERTY
5.1. Platform. Subject to the license granted in Section 2.1, SevenRooms or its licensors retain all right, title and interest in the Platform, the Usage Information, and any derivative works thereof.
5.2. Client Information. As between the parties, Client owns all right, title and interest in, and is solely responsible for, any information specific to a Venue that is uploaded by Users to the Platform or otherwise made available by Client to SevenRooms under this Agreement (“Client Information”). For clarity, Client Information includes names and contact information of Venue guests, the date and time of reservations, purchases, payment information, and reservation details of such guests (“Guest Information”), along with Venue photographs, floor plans, table configurations and other designs. If multiple Client Venues are, or later become managed via the Platform, Guest Information from each Venue will be available to all Users of all other Venues, subject to the access rights of such Users. In addition to the restrictions in Section 2.2, Client and Users may not use the Platform to transmit, store, display, distribute or otherwise make Client Information available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, or pornographic, and SevenRooms may, in its sole discretion, remove or delete any such Client Information. Client grants SevenRooms (a) a worldwide, royalty-free, sublicensable, nonexclusive license, during the Term, to use Client Information solely to provide the Subscription to perform the Services and for routine archival records, and (b), a worldwide, perpetual, royalty-free, sublicensable, and nonexclusive right to use aggregated, de-personalized information derived from Client Information, including Guest Information, to improve the Services, share with SevenRooms’ marketing partners, develop new offerings, or for other lawful purposes. SevenRooms may have independent access to certain Guest Information of Client (i.e., through individual sign-up with SevenRooms or other offerings or sources) or other Client Information, and nothing in this Section 5.2 limits SevenRooms’ right to use such information. Client is solely responsible for creating backup copies of and securely storing any Client Information and/or Guest Information.
5.3. Usage Information. SevenRooms owns all data regarding installation, registration, and use of the Platform, and data related to Platform performance, including response times, load averages, usage statistics, and activity logs, (collectively, “Usage Information”). Usage Information does not include any personally identifiable information but may include aggregated information derived from Client Information.
5.4. Marks. Client grants SevenRooms a limited, non-exclusive, non-transferable, sublicensable right to use its trademarks, service marks, logos, name, branding, and equivalent identifiers (“Marks”) on the Platform, in performance of the Services, and for attribution as set forth in Section 12.7, consistent with Client’s standard guidelines regarding the use of the Marks. Client retains all other rights in the Marks and SevenRooms’ use of the Marks will inure to Client’s benefit.
5.5. Feedback. Client grants SevenRooms a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, recommendations or other input provided by Client or Users about the Platform and Services to SevenRooms without restriction.
6.1. Fees. All fees under an Order Form (“Fees”) will be due within ten (10) days of the date stated on the Order Form. Implementation and first Subscription Fees will be due within ten (10) days of the Effective Date.
6.2. Payment Options. Client may elect to have the Fees automatically deducted either via accepted credit card or ACH (the “Automatic Payment Options”), at no additional charge. From time to time, SevenRooms may notify Client of additional Automatic Payment Options. For an additional fee of twenty-five dollars ($25.00) per transaction, Client may also elect to be invoiced and make manual payments via check or wire, with payments due net ten (10) days from Client’s receipt of the invoice. For credit cards or any other payment provider that SevenRooms may later accept (a “Payment Provider”), Client’s Payment Provider agreement, and not these Terms, will govern Client’s use of the designated account. SevenRooms also uses a Third-Party Service to process such Fees. Client acknowledges that by providing its payment information for any Automatic Payment Options, Client agrees that SevenRooms may invoice Client for all fees and charges when they become due to SevenRooms without additional notice or consent and agree to keep such payment information up to date.
6.3. Subscription Terms. Subscriptions will automatically renew at the rates then in effect, until cancelled as set forth in Section 7.1. For clarity, during any Subscription Term, Client agrees to pay any Transaction Fees that become due, as well as all Subscription Fee payments set forth on the Order Form that are applicable to the entire Subscription Term, regardless of whether Client uses the Platform or Services for the entirety of such period. Any early termination of an Order Form or this Agreement (other than due to SevenRooms’ material breach) will not relieve Client of this obligation.
6.4. Changes. SevenRooms may change its Fees and billing practices upon written notice to you, provided that (i) any pre-paid fees will not be affected by such change and (ii) in the event of any price increases, Client will have thirty (30) days to reject any such change by providing a written termination notice to SevenRooms. If Client does not provide a written notice of termination within such thirty-day period, then Client will be deemed to have approved and accepted such changes.
6.5. Late Payment. SevenRooms may assess a late payment charge of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less) on overdue Fees until payment is received in full. In addition, if Client fails to pay overdue Fees within five (5) days of notice that payment is late, SevenRooms may suspend its access to the Services and/or Platform until payment is received in full. Any payment failure that remains uncured for thirty (30) days shall constitute a material breach under Section 7.2 herein.
6.6. Taxes. The Fees do not include any taxes, duties or similar assessments of any nature that may be imposed on the Services or Subscription (“Taxes”). Client is responsible for paying all Taxes. SevenRooms will use commercially reasonable efforts to list Taxes as a separate line item on each invoice.
7. TERM AND TERMINATION
7.1. Term. The Agreement will become effective on the Effective Date and will continue until the end of the “Subscription Term” indicated on the Order Form (which will be one (1) year if no such period is indicated). The Subscription Term will begin on the earlier of (a) the first date a User creates a Platform account, or (b) the Start Date indicated on the Order Form (if no Start Date is indicated, the Start Date will be fourteen (14) days after the Effective Date (the “Term”). Thereafter, the Term (including the Subscription Term and all Services) will automatically renew for successive twelve (12) month periods, unless either party notifies the other in writing of its intent not to renew at least sixty (60) days prior to the expiration of the then-current Term, or as earlier terminated pursuant to Section 7.2.
7.2. Termination for Material Breach. Either party may terminate this Agreement or an Order Form for a material breach of the other party that remains uncured for thirty (30) days’ after the breaching party’s receipt of a written notice of such breach. SevenRooms may additionally terminate this Agreement upon shorter written notice if (i) Client ceases to utilize the Platform for a period of at least ninety (90) days without communicating a reason to it (for example, due to Venue renovation), or (ii) in the reasonable judgment of SevenRooms, Client’s Venue or Users are acting in a manner that would create imminent and material risk to SevenRooms.
7.3. Effects of Termination. Upon expiration or termination of the Agreement or an Order Form, (a) Client’s license to the Platform will terminate and Client will stop using the Platform and remove or destroy any copies of the Documentation in its possession; and (b) each party will return or destroy any Confidential Information of the other party in its possession. Sections 2.2, 5, 6, 7.3, 8, 9.2, 10, 11 and 12 will survive termination of expiration of this Agreement. Client may use any Client Information exported from the Platform following termination without restriction. Unless Client terminates this Agreement for SevenRooms’ material breach, no prepaid fees will be refunded, and Client will remain responsible for all Subscription payments for the then-current Term.
8.1. General. “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either party that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential. The Platform, Documentation, and Usage Information is Confidential Information of SevenRooms; Client Information is Confidential Information of Client. Each party may have access to the other party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing party. Each party will additionally treat the terms of this Agreement as Confidential Information.
8.2. Use. Each party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section 8.2, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. The obligations in this Section 8.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect as long as the trade secret is maintained.
8.3. Exceptions. Confidential Information does not include information that is: (a) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (b) rightfully learned by recipient from entities not bound to keep such information confidential, (c) independently developed by recipient; or (d) approved for unrestricted disclosure by the disclosing party. In addition, a recipient may disclose the other party’s Confidential Information as required by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other party of such requirement and cooperates with the other party’s reasonable efforts to prevent or limit the scope of such disclosure, at the other party's expense).
9. WARRANTIES AND DISCLAIMERS
9.1. Performance. The Services will be performed in a professional and workmanlike manner.
9.2. Disclaimer. ASIDE FROM THE LIMITED WARRANTY IN SECTION 9.1, SEVENROOMS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, OR THE SERVICES. SEVENROOMS PROVIDES THE PLATFORM ON AN “AS-IS” BASIS AND DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
10. INDEMNIFICATION; RELEASE
10.1. SevenRooms Indemnity. SevenRooms will indemnify Client (and its affiliates and their shareholders, directors, employees and other agents) against any loss or damages arising from any claim that the Platform, only as used in accordance with the Documentation and this Agreement, infringes the intellectual property rights of a third party. If the Platform or any of its components is found to so infringe, SevenRooms will (in its sole discretion) either (a) procure the right for Client to continue to use the Platform; or (b) modify the Platform to be non-infringing without materially diminishing its functionality. If neither (a) nor (b) is commercially reasonable, SevenRooms may terminate the Agreement upon at least thirty (30) days’ prior written notice and refund to Client any unused, prepaid Subscription Fees. This Section 10.1 sets forth Client’s sole remedy, and SevenRooms’ entire liability, with respect to any indemnifiable claim.
10.2. Client Indemnity. Client will indemnify SevenRooms (and its affiliates and their shareholders, directors, employees and other agents) against any loss or damages arising from any claim arising out of (i) Client’s use of the Platform, Documentation or Services in any manner not expressly permitted hereunder, (ii) Client’s use of any Client Data, and/or (iii) Client’s business or services in any way (including but not limited to claims arising from Client’s guests and/or any violation of any applicable law or regulation), except to the extent that such claim is covered under Section 10.1 above.
11. LIMITATION OF LIABILITY
11.1. Disclaimer; Limits. SUBJECT TO SECTION 11.2, (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) A PARTY’S TOTAL LIABILITY ARISING OUT OF THE AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
11.2. California Residency. IF CLIENT IS A CALIFORNIA RESIDENT, IT HEREBY WAIVES ITS RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
11.3. Exclusions. The limitations in Section 11.1 will not apply to (a) a party’s indemnification obligations; (b) a party’s misappropriation or infringement of the other party’s intellectual property or any misuse of Confidential Information; (c) Client’s failure to pay Fees; or (d) a party’s gross negligence or willful misconduct.
12.1. Dispute Resolution; Arbitration. The parties agree that, except for any action arising out of (i) a party’s breach of its confidentiality obligations hereunder, (ii) a party’s misappropriation or infringement of the other party’s intellectual property; or (iii) Client’s failure to pay Fees, any dispute, claim or controversy arising out of or relating in any way to the Services, the Platform and this Agreement will be determined by binding arbitration or in small claims court (if applicable and the at the choosing of the party bringing the action). In executing this Agreement, Client agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that the parties are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of Client’s use of the Services. To seek arbitration or to file a small claim court action against SevenRooms, Client must first send to SevenRooms, by certified mail, a written notice of its claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, SevenRooms, 122 W 27TH ST, 7TH FLOOR, NEW YORK, NY 10001. If SevenRooms initiates arbitration, it will send a similar written notice to the Client address provided with the Order Form. Following either party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. If the parties cannot reach an agreement to resolve the claim within thirty (30) days after the notice is received, either may commence an arbitration proceeding or file a claim in small claims court. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the parties agree otherwise, any arbitration hearings or small claims court proceedings will take place within 20 miles of SevenRooms’ offices.
12.2. Class Action Waiver. The parties agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with its claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
12.3. Timing. Client and SevenRooms agree that any cause of action arising out of or related to this Agreement must commence within six (6) months after the cause of action accrues or such cause of action will be permanently barred.
12.4. Governing Law and Venue. The Agreement will be governed by and interpreted in accordance with the laws of the State of New York. The parties irrevocably consent to the jurisdiction of the state and federal courts located in New York County, New York for any action arising out of the Agreement.
12.5. Independent Contractors. The parties are independent contractors and the Agreement does not create a partnership, joint venture or agency relationship between them. Neither party will represent that it has the power to bind the other.
12.6. Waiver; Severability. A party’s failure to enforce a provision of this Agreement will not waive its right to enforce a subsequent breach of that or any other provision. A court’s determination that any provision of the Agreement is invalid will not affect any other provisions.
12.7. Attribution. SevenRooms may list Client as a its client on the SevenRooms website and marketing materials and may use Client Marks to do so consistent with Client’s style guidelines. The parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
12.8. Assignment. Neither party may assign the Agreement without the other party’s prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a party’s stock or assets and provided that the assigning party provides written notice to the other promptly following any such assignment.
12.9. Force Majeure. Except for payment obligations, neither party will be liable for a failure to perform its obligations under the Agreement as a result of events beyond its reasonable control that can’t be mitigated by the exercise of due care.
12.10. Notices. All legal notices related to this Agreement will be in writing and sent via overnight courier requiring signature on delivery to the party’s address specified on the Order Form. Operational communications, including changing a party’s notice address, may be delivered by email.
12.11. Entire Agreement; Amendment. The Agreement is the entire agreement of the parties with respect to its subject matter. No changes to this Agreement (or an Order Form) will be valid unless made in writing and signed by the parties.
12.12. Execution. The Agreement takes effect upon execution of an Order Form, which may be executed in any number of counterparts, by digital signature, by a scanned signature page in a format such as PDF, or via a recognized electronic consent method. All signature pages or equivalents will be deemed an original, and all of which taken together will constitute a single agreement.
Additional Terms for Certain Platform Components
A. DIRECT DELIVERY CONNECTION PLATFORM
1. The Service Generally; Limitations. The Direct Delivery Connection Platform helps to facilitate Client’s delivery of its own food, beverage and related products to its customers’ homes, offices or other venues. However, Client acknowledges and agrees that SevenRooms is merely providing a technology to assist Client’s provision of delivery services, either by itself or via a so-called “last mile” delivery services providers that actually deliver the products to customers (each a “Delivery Provider.”) For clarity, this means that SevenRooms is not a product delivery provider. Therefore, Client understands and agrees that it retains sole responsibility for its delivery services, its delivered food, beverage and other products and its end-user experience, including any associated complaints, issues or liability arising therefrom. For clarity, the foregoing means that, except for SevenRoom’s limited warranty described above, SevenRooms shall have no liability to Client in relation to Client’s delivery business.
2. Client Obligations. Client will make items available for purchase through the Direct Delivery Connection Platform (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Client will conduct its delivery and general business in accordance with all laws and regulations, including but not limited to those concerning its preparation, handling, storage, labeling, marketing and sale of food and alcohol (but see “Alcohol” below for additional alcohol-related terms). Client represents and warrants that (i) all nutritional information for Available Items, including calorie count or allergen information, that is made available through the Direct Delivery Connection Platform is, and at all times will remain, accurate, (ii) it will not sell or deliver any Available Items that are regulated products, such as alcohol, cannabis, drugs or otherwise, if any, other than in accordance with all laws and regulations, to appropriately screened customers, (iii) Client will not use the Direct Delivery Connection Platform to offer any of the following Available Items: any products that it is not legally permitted to offer people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Client does not have permission to send, (iv) Client will review and stay in good standing under the terms of any of the Delivery Providers that it connects with hereunder (see Section 7 “Delivery Providers” below).
3. Alcohol Delivery Terms.
- CLIENT REPRESENTS, WARRANTS AND COVENANTS TO SEVENROOMS THAT IT WILL NOT, SELL AND DELIVER ALCOHOL UTILIZING THE DIRECT DELIVERY CONNECTION PLATFORM OTHER THAN IN ACCORDANCE WITH THESE ADDITIONAL ALCOHOL DELIVERY TERMS, WHICH INCLUDE ANY ALCOHOL-RELATED TERMS.
- Any sales of alcohol by Client (including via any Delivery Partner may only be conducted by Client in accordance with all laws and regulations pertaining to Client’s jurisdiction and third-party contracts. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE FOREGOING, INCLUDING BUT NOT LIMITED TO (I) DETERMINING WHETHER ALCOHOL SALES ARE PERMITTED, (II) ENFORCING ANY LIMITATIONS RELATING TO PERMITTED SALES, (III) CONDUCTING ANY AGE VERIFICATION OR OTHER SCREENING OF CUSTOMERS RELATING TO SUCH SALES, AND (IV) ENSURING ANY DELIVERY PROVIDER SERVICES THAT IT ENGAGES (VIA THIS SERVICE OR OTHERWISE) PERFORM THEIR DELIVERIES IN ACCORDANCE WITH ALL OF THE ABOVE THEIR OWN TERMS AND CONDITIONS.
4. Additional Client Indemnity. In addition to any indemnity obligations that may arise under the SevenRooms MSA, Client will indemnify and hold harmless SevenRooms (and its affiliates and their shareholders, directors, employees and other agents) against any loss or damages, including but not limited to any attorneys fees or other court or enforcement-related expenses, arising from any claim arising out of (i) Client’s use of the Direct Delivery Connection Platform, including any claims by any of Client’s end user customers (ii) Client’s business or services violating these terms or any applicable statute or regulation, in any way and/or (iii) any claim arising out of the actions of any Delivery Provider or other party that Client may engage as part of its use of the Direct Delivery Connection Platform.
5. Client Marketing. If Client chooses to utilize marketing services through the Direct Delivery Connection Platform product and related Services, Client grants SevenRooms permission to access its client database and CRM tool for the purpose of obtaining customer information and communicating with Client’s customers via email or other social marketing.
6. BBOT Service – Incorporated Third-Party Terms; SevenRooms currently provides the Direct Delivery Connection Platform in conjunction with its preferred integrated third-party technology platform provider, Bbot, Inc. (“BBOT”). To access and use the Direct Delivery Connection Platform, Client must agree to be bound by the BBOT Terms and Conditions, set forth below. If Client cannot agree to the BBOT Terms and Conditions, then Client must and cannot use the Direct Delivery Connection Platform. Client’s agreement to any DD Order and these DD Terms indicates Client’s agreement to become bound by the BBOT Terms and Conditions of service located at: https://bbot.menu/terms.
- DOORDASH Service – Incorporated Third-Party Terms. If Client elects to utilize DoorDash for third-party delivery within the Direct Delivery Connection Platform, Client provides its agreement to become bound by the DoorDash terms and conditions of service located at: https://help.doordash.com/merchants/s/terms-of-service-us?language=en_US. In addition, if Client utilizes DoorDash for the sale and distribution of alcohol, Client expressly agrees to also become bound by DoorDash’s Alcohol Addendum, attached as Addendum A-1 hereto.
- STUART Service – Incorporated Third-Party Terms. If Client elects to utilize Stuart for third-party delivery within the Direct Delivery Connection Platform, Client provides its agreement to become bound by the Stuart terms and conditions of service located at: https://stuart.com/terms/
B. CONTACTLESS ORDER AND PAY TERMS AND CONDITIONS
1. SevenRooms Obligations; Disclaimer. The Contactless Order and Pay Service or “COAP Service” provides an on-premise ordering solution for Venue consumer guests that is intended to allow guests to order and pay for their Venue meals and services utilizing their personal mobile devices. However, Client acknowledges and agrees that SevenRooms is merely providing a technology to assist with Venue guests’ ordering and payment. Therefore, Client understands and agrees that it retains sole responsibility for its personnel, services and its food, beverage and other products, including the entirety of its end user experience and any associated complaints, issues or liability arising therefrom. For clarity, the foregoing means that, except for SevenRoom’s limited commitment to provide the Platform as set forth in the Agreement, SevenRooms shall have no liability to Client in relation to Client’s delivery business.
2. System Requirements; Additional Costs. The ability of Client to implement and utilize the COAP Service, in whole, or in part (and/or at a degraded level) may be made contingent upon its acquisition and integration of certain hardware and/or software applications, which shall be set forth in an applicable Order Form and may be updated from time to time. In addition, the COAP Service may perform better when integrated with certain third-party systems, such as POS (e.g. Toast), QR code generators and payment processors (e.g. Stripe). Depending upon Client’s integrated systems, Client may be required to purchase additional hardware (such as printer boxes) and Client may require or request Venue specific implementation services. Any additional hardware costs or implementation services will (i) be set forth in an applicable Order Form and (ii) may be subject to additional fees stated thereon.
3. User Messaging; User Requirements. To properly communicate the COAP Service functionality to Venue Users, Venue may be required to place specific signage and materials prominently at user tables and other key areas. Unless stated otherwise in any Order Form, (i) all such signage shall be subject to SevenRooms’ prior approval and (ii) at Venue’s own cost. Venue users will also be required to provide payment information for each transaction. In addition, Venue users may only be able to access the COAP Service via certain compatible mobile devices, utilizing certain supported payment applications and products. Users may also be required to register for the service and/or agree to additional terms and conditions of use, from SevenRooms and/or via the user’s third-party payment processing provider. Users will also need to properly utilize the QR code or NFC functionality supported by their device, in accordance with the instructions provided by Venue and within the device via the service.
4. BBOT Service – Incorporated Third-Party Terms. SevenRooms currently provides the Direct Delivery Service in conjunction with its preferred integrated third-party technology platform provider, Bbot, Inc. (“BBOT”). To access and use the Direct Delivery Service, Client must agree to be bound by the BBOT Terms and Conditions, set forth below. If Client cannot agree to the BBOT Terms and Conditions, then Client must and cannot use the Direct Delivery Service. Client’s agreement to any DD Order and these DD Terms indicates Client’s agreement to become bound by the BBOT Terms and Conditions of service located at: https://bbot.menu/terms.
DOORDASH ALCOHOL ADDENDUM
1. BACKGROUND. The Parties entered into the Agreement to market and deliver Merchant Products to consumers in certain markets in the United States. Merchant is a licensed alcoholic beverage retailer, and the Parties wish to incorporate the following terms specific to Alcohol Products to consumers in some or all of the Applicable Jurisdictions. In consideration of the mutual covenants and agreements stated in this Addendum, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to amend the Agreement as follows.
2.1. “Alcohol Laws” means all federal, state, and local laws pertaining to the sale of Alcohol Products, regulations, ordinances, rules, and Alcohol Product regulatory agency policies.
2.2. “Alcohol Licenses” means all applicable Alcohol Licenses, permits, license and/or permit endorsements, and/or authorizations from state and/or local Alcohol Product licensing authorities.
2.3. “Alcohol Products” means alcoholic beverages and other products sold by Merchant.
2.4. “Applicable Jurisdictions” means California, Florida, Missouri, New York, Oregon, Texas, Virginia, and Washington; Aurora, IL; Chicago, IL; Elgin, IL; Evanston, IL; Joliet, IL; Springfield, IL; and Washington, DC and any other jurisdictions that may be added by the parties via the form attached as Exhibit A.
2.5. “Delivery Records” means all delivery information that Merchant is required to record or retain by applicable Alcohol Laws.
2.6. “Damages” means all liability, cost, expense, claim, loss or damages caused by any act or omission by Merchant, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Agreement (but excluding any Damages solely to the extent they arise from the negligence of DoorDash or any Dasher).
2.7. “End Customer” means the purchasing consumer.
2.8. “Merchant Product” means a product sold by Merchant.
2.9. “Order” means an order for Alcohol Products placed by an End Customer.
2.10. “Party” means DoorDash or Merchant, as the context requires.
3. ALCOHOL LAWS.
3.1. Alcohol Laws. Merchant will only send orders to DoorDash during hours where alcohol delivery is legal in the Applicable Jurisdiction. Merchant will offer Alcohol Products for delivery only to the extent authorized by Merchant’s Alcohol Licenses, and in factory sealed containers authorized under Merchant’s Alcohol Licenses and the applicable Alcohol Laws. Merchant will not offer Alcohol Products in “kegs” or other containers the volume of which are 7.75 gallons or more.
3.2. Seller of Record. Merchant is the seller of all Alcohol Products under the Agreement. Merchant further agrees that it shall be solely responsible for the issuance of any refunds, to the extent permitted under state law. Merchant shall at all times be solely responsible for determining the selection and setting the price of all Alcohol Products sold in connection with this Agreement. For avoidance of doubt, title for all Alcohol Products sold under this agreement shall pass directly from Merchant to the End Customer on Merchant’s licensed premises prior to DoorDash taking possession of any Alcohol Products for delivery.
3.3. DoorDash Obligations. DoorDash holds no federal or state alcoholic beverage retail permits or licenses in its name and DoorDash conducts its activities under this Agreement on Merchant’s behalf at Merchant’s express direction, and under the authority of Merchant’s Alcohol Licenses as Merchant’s agent. DoorDash shall not have the authority to offer, solicit, peddle, or sell alcoholic beverages and will not be deemed to have offered, solicited, peddled, or sold any Alcohol Products sold by Merchant. The Parties agree that DoorDash shall not receive any proceeds for the sale of Alcohol Products.
3.4. Change in Laws. In the event that any government agency or regulatory body provides guidance that any terms of this Addendum are in violation of, or prohibited by, any Alcohol Laws, such terms shall be deemed to be amended or deleted to conform to such Alcohol Laws. Alternatively, in such circumstances, either Party may terminate this Agreement upon written notice to the other Party.
4. DELIVERY PROCESS.
4.1. Merchant Responsibilities. The Merchant responsibilities mirror those of the Agreement.
4.2. Dasher Responsibilities. In addition to the DoorDash responsibilities in the Agreement, Dashers will pick up Orders from Merchant’s licensed premises and deliver them to the addresses provided by the applicable End Customers. Upon delivering an Order, Dashers shall: (1) request and review valid, government-issued identification demonstrating that the recipient is 21 years of age or older; (2) verify that the recipient is not visibly intoxicated; and (3) collect and record Delivery Records.
4.3. Records. DoorDash will provide all such records to Merchant for Merchant’s recordkeeping requirements pursuant to Alcohol Laws. Merchant shall maintain and retain Delivery Records in a manner fully compliant with Alcohol Laws. Merchant further agrees to maintain the confidentiality of all End Customer and recipient data contained in the Delivery Records and not use such data for any purpose other than to maintain records as required by Alcohol Laws. Merchant agrees to indemnify, defend, and hold harmless DoorDash against all liabilities, damages, and costs incurred by DoorDash as a result of any violation by Merchant of this provision.
5. STATE-SPECIFIC PROVISIONS. If Merchant operates locations in the following states, these provisions will apply. Merchant acknowledges these state-specific provisions are not inclusive of all Alcohol Laws, and that Merchant may be subject to additional Alcohol Laws.
5.1. Florida: Dashers assigned to deliver orders containing Alcohol Products will act as agents of the End Customer.
5.2. Texas: Merchant will not offer (1) delivery of Alcohol Products in excess of 5.0% ABV or (2) delivery to addresses in dry counties or counties or localities where the sale or delivery of Alcohol Products is prohibited. Merchant represents and warrants that it has the necessary capabilities to accurately comply with wet and dry regulatory restrictions in Texas.
5.3. Oregon: Merchant warrants that it has obtained Same-Day Delivery approval from the Oregon Liquor Control Commission. Merchant will affix a notice to the outermost surface of each package containing Alcohol Products that states: “Contains alcohol: signature of person age 21 years or older required for delivery”. Merchant further agrees that it will not send DoorDash orders (i) containing Alcohol Products after 8:30 p.m. or (ii) containing a quantity of Alcohol Products that exceeds the quantity limitation imposed by OR. Admin. Rs. 845-006-0392, 845-006-0396, and any other applicable state laws or regulations for the time of day at which the order is placed.
5.4. Missouri: Merchant will affix a notice to the outermost surface of each package containing Alcohol Products that states: “CONTAINS ALCOHOL; SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY.”
5.5. Virginia: Dashers assigned to fulfill orders containing Alcohol Products will act as agents of the Merchant in compliance with Va. Code Ann. § 4.1-212.1(C). Pursuant to 3 Va. Admin. Code 5-70-225(F), Merchant will affix a notice in 16-point type or larger in a conspicuous location on the outside of each package of Alcohol Products to be delivered in Virginia that states: “CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER REQUIRED FOR DELIVERY.” Such notice shall also contain the Merchant’s Delivery Permit number.
5.6. Washington: Merchant will affix a notice to the outermost surface of each package containing Alcohol Products that states all of the following: (a) the package contains “liquor”; (b) the recipient must be 21 years of age or older; and (c) delivery to intoxicated persons is prohibited.
6. PAYMENTS AND PROCESSING.
6.1. Processing. The End Customer’s payment for all Orders containing Alcohol Products shall be processed by a third-party payment processor, and all proceeds for Orders shall be remitted to Merchant. Merchant agrees that it shall pay DoorDash any fees due to DoorDash under this Agreement by authorizing Stripe to remit such fees to DoorDash after Orders are processed and Merchant has received all sales proceeds for Orders.
6.2. Returns. 6.2.1. DoorDash shall not process any returns, exchanges, or substitutions of Alcohol Products that have been delivered to End Customers. DoorDash will inform End Customers that requests for returns or exchanges should be handled directly by Merchant, in accordance with Merchant’s standard return policy. Merchant will handle all End Customer support issues relating to such refunds or returns.
6.2.2. An Alcohol Product will be deemed undeliverable in the following circumstances: (i) the recipient does not present valid identification indicating that he or she is at least 21 years of age, (ii) the recipient is visibly intoxicated; (iii) the recipient is not available to receive the delivery; (iv) the Alcohol Product is damaged prior to delivery to the recipient; or (v) there are other circumstances that would render the delivery of the Alcohol Product unreasonable or unlawful, as determined in DoorDash’s sole discretion. In the event that an Alcohol Product is undeliverable, DoorDash will communicate to Merchant that the delivery was not completed and Pursuant to Merchant’s direction, DoorDash shall return the Alcohol Product to the Merchant Location from which it was picked up.
7. REPRESENTATIONS AND WARRANTIES. In addition to the representations and warranties set forth in the Agreement, and notwithstanding anything in the Agreement to the contrary, the Parties make the following representations, warranties, and covenants.
7.1. Mutual. DoorDash and Merchant hereby represent and warrant that each complies and shall continue to comply during the term of the Agreement with all applicable laws necessary for each to perform its obligations under this Addendum and the Agreement.
7.2. DoorDash. DoorDash hereby represents and warrants that it shall ensure that Dashers fulfilling Orders that include Alcohol Products: (1) will be 21 years of age or older; (2) will have received orientation materials relating to the delivery of Alcohol Products in accordance with Alcohol Beverage Laws, including verifying that recipients are at least 21 years of age and identifying whether individuals are visibly intoxicated; and (3) will collect information required for record-keeping purposes by Alcohol Laws.
7.3. Merchant. Merchant hereby represents and warrants that Merchant (i) shall promptly inform DoorDash of any regulatory or governmental inquiry that could reasonably jeopardize Merchant’s legal ability to sell or deliver Alcohol Products or otherwise perform its obligations under this Agreement; (ii) holds and will maintain in good standing throughout the term of this Agreement the Alcohol Licenses required for the sale of Alcohol Products directly to consumers in Applicable Jurisdictions, including but not limited to any Alcohol Licenses required to accept orders for Alcohol Products from consumers direct or through a third party via the internet and/or to deliver Alcohol Products to End Customers; and (iii) currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for alcoholic beverage regulatory compliance related to DoorDash’s activities and any sales or deliveries of Alcohol Products under this Agreement.
8. INDEMNIFICATION. The Indemnifying Party will defend, indemnify, pay and hold harmless the Indemnified Party from and against any third-party claims arising from the breach of any representations or warranties or covenants made under this Addendum. Notwithstanding the foregoing, Merchant assumes all responsibility for, shall bear all liabilities and expenses and shall indemnify and hold DoorDash harmless from all Damages caused by any act or omission by Merchant, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Agreement (but excluding any Damages solely to the extent they arise from the negligence of DoorDash or any Dasher).
9. LIMITATION OF LIABILITY. THE PARTIES AGREE THAT (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS ADDENDUM, FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, AND (ii) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS ADDENDUM SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM.
10. CONFLICT. If there is a conflict between the provisions of this Addendum and the Agreement, the provisions of this Addendum will control.