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9Fold Restaurant Agreement

This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“You” or “Restaurant”) and 9Fold LLC. This Agreement specifies the terms under which You may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting your assent to this Agreement, You agree to be bound by the terms of this Agreement. If You do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of binding it to this Agreement.

The definitions for some of the defined terms used in this Agreement are set forth in Section 12. The definitions for other defined terms are set forth elsewhere in this Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and 9Fold  (collectively, the “Parties” and each, a “Party”) hereby agree as follows:

 

1. SUBSCRIPTION TO THE PLATFORM; LICENSES; RESTRICTIONS ON USE; HARDWARE ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
  • 1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, 9Fold hereby grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Platform. Restaurant shall be responsible to 9Fold for any and all acts or omissions of the Users. 9Fold reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability.
  • 1.2 License Grants to Restaurant Content and Restaurant Marks.
    1. Subject to the terms of this Agreement, Restaurant hereby grants to 9Fold during the Term:
      • (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content, in whole or in part, through the Platform and in connection with any services 9Fold performs for Restaurant pursuant to the terms as defined below, but solely to the extent necessary for 9Fold to perform such services. 9Fold’s license to modify the Restaurant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to Restaurant.
      • (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant; (2) in connection with 9Fold’s performance of any services; and (3) with the prior consent of Restaurant, in connection with the marketing, advertising, and promotion of 9Fold and the Platform; provided, however, that pursuant to Section 10, 9Fold may list Restaurant as a client of 9Fold and a user of the Platform without having to obtain Restaurant’s consent. All goodwill generated by 9Fold’s use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant.
    2. 9Fold shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) (i) to any subcontractors performing services on 9Fold’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or 9Fold badges or widgets embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to 9Fold with respect to the use of the Restaurant Content and the Restaurant Marks.
  • 1.3 Hardware (Printers, PC’s, Tablets)
    1. 9Fold is not responsible for providing any hardware or technology support on any printers, PC’s, tablets or any other hardware device used by the Restaurant as 9Fold is not a hardware manufacturer or specialist.
    2. 9Fold is not responsible for providing restaurants with any hardware that may be required to accept and process orders.
    3. 9Fold will provide restaurant with various options in which to receive and process online orders in the system for which it is then the duty of the Restaurant to decide on the most appropriate setup and procure the hardware required.

 

2. REGISTRATION, MAINTENANCE OF ACCOUNT, AND 9FOLD WIDGET.
  • 2.1 Registration. During the registration process, 9Fold requires You to create an account, which may include a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating You when Your Users log into the Platform in the future (“Unique Identifiers”). When creating the account, You must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform 9Fold of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. 9Fold will not be liable for any loss or damage caused by any unauthorized use of Your account.
  • 2.2 Maintenance of Account. As 9Fold’s business evolves, it may require additional information, authorizations, and permissions from You after You register in order to provide You access to and usage of the Platform and perform its other obligations under this Agreement. When requested by 9Fold, You shall promptly provide all such information, authorizations, and permissions in accordance with 9Fold’s request. When doing so, You shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to You or immediate termination of Your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so 9Fold can comply with its Know Your Customer obligations), 9Fold shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.
  • 2.3 9Fold Widget. In order to integrate Your website with the Platform, You hereby grant 9Fold the right, during the Term, to embed the 9Fold widget in Your website.  To the extent permission to do so is required from a third party acting on Your behalf (e.g., Your hosting provider, webmaster, etc.), you will assist us in promptly obtaining such permission and any necessary access credentials.
3. PRIVACY

3.1 Privacy. During the Term, 9Fold shall publish to Customers via a pop-up located on Your website a link to 9Fold’s privacy policy that describes the ways in which 9Fold collects, uses, discloses, and protects Customer PII and non-PII.

3.2 DoorDash / Third Party Communications. Although 9Fold only shares the necessary customer data to fulfill the intended purposes, your restaurants use of certain third party integrations such as the 9Fold GO / DoorDash drive integration means you and your customers may be subject to third party privacy policies.  By using these third party integrations you may be consenting to  mobile communications such as text messages for transactional purposes.

 

4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
  • 4.1 Fees; Refund Policy; Taxes. As consideration for the rights granted in Section 1, Restaurant shall pay 9Fold its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Restaurant and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if Restaurant orders any Additional Products and Services through the functionality of the Platform, it shall pay 9Fold’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Fees”). 9Fold may modify the Fees at any time on written notice to Restaurant (including via Restaurant’s individual account in its orders.9fold.me/admin dashboard), and any such modification shall go into effect thirty (30) days after such notice. The Subscription Fee shall be locked for the first year of any monthly subscription. 4.2 Payments to 9Fold. 9Fold shall authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and Restaurant hereby consents to the same. If Your restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Your restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date You can begin taking Orders or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, 9Fold shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
  • 4.3.1 Payments to Restaurant; Orders.
    • 9Fold may use Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders.
    • You must enter into the Connected Account Agreement (“CAA”) with Stripe and its sponsoring bank. The CAA is available at https://stripe.com/connect-account/legal. By accepting this Agreement, You agree: (i) that You have downloaded or printed the CAA; and (ii) that You have reviewed and agree to the CAA. Please note that 9Fold is not a party to the CAA and that You, Stripe, and Stripe’s sponsoring bank are the three parties to the CAA and that 9Fold has no obligations or liability to You under the CAA. If You have questions regarding the CAA, please contact Stripe as described in the CAA. If payment for an Order is processed through Stripe, the next business day after an Order settles, which will ordinarily be one (1) to two (2) business days from the actual Order date (depending upon Your bank’s settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; and (iii) the following credit card transaction charges:  MasterCard, Visa, Discover, and American Express: 3.25% + $.30 per order.  You hereby authorize 9Fold and/or Stripe to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a daily basis. As per Stripe policy on refunds; All restaurant order refunds are subject to processing fees if refund takes place after order has been captured for the days sales – these processing fees are the full responsibility of the restaurant and will be deducted from the restaurants upcoming payout balance or directly from restarurants designated bank account via ACH if the balance cannot satisfy amount needed to cover the processing fees.   Disputes on payments will be handled in the following fashion: Disputes designated as “Fraud” by banks/card networks will be covered by 9Fold up to $250 per calendar month per individual restaurant location. Disputes designated under other categories such as “Product Unacceptable” “Duplicate Charge” or “Other”, will not be covered by 9Fold’s fraud protection guarantee. If/after the $250 threshold has been passed in a given calendar month, all disputes will be reversed thereafter and are the responsibility of the restaurant. A dispute fee no greater than $15 will also be charged per each dispute in question. 9Fold will assist and advocate on behalf of the restaurant to fight any disputes given the timeframe provided by the banking institution. The restaurant is responsible for gathering any evidence and communicating with the end user (the one disputing payment) in order to provide the processor with evidence.
  • 4.3.2 Customer (End User) Charges
    • 9Fold may charge certain service fees on a per order basis directly to the customer during checkout. These fees may vary based on variety of factors such as but not limited to; 1. additional software add-ons or services being used by the restaurant, 2. Being part of a discontinued subscription plan structure 3. Covering costs incurred by system updates and infrastructure changes. Although 9Fold charges the customer (end user) by default, the restaurant may choose at their sole discretion to absorb a portion of those fees or the fee in its entirety by requesting to do so in writing with a 9Fold client success or customer service representative. 
    1. RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT 9FOLD IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPE FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE, AS APPLICABLE, PURSUANT TO THE CAA OR MSA, AS APPLICABLE. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES 9Fold FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
    2. You hereby authorize 9Fold to process Orders via the Restaurant website widget. To the extent refunds cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize 9Fold to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such refunds on a weekly basis. For the avoidance of doubt, 9Fold assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(e).
  1. 4.4 Taxes On Orders. In connection with all Orders, You shall: (i) ensure that the tax rates set forth in Your 9Fold dashboard are correct; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and the processing of such Orders for Customers (excluding any taxes imposed or based on 9Fold’s income).
  2. 4.5 Subscription Plans. At any time during the monthly subscription, Restaurant may cancel monthly subscription without penalty.
  3. Google Pay & Apple Pay. The use of Google Pay or Apple Pay is subject to the terms and conditions, including the privacy policies, of Google and Apple, respectively.  By using Google Pay, customers accept the Google Pay API Terms of Service found here: https://payments.developers.google.com/terms/sellertos

 

 

  1. TERM AND TERMINATION.
  • 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
  • 5.2 Termination. Either Party may terminate this Agreement: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any or no reason, upon thirty (30) days prior written notice to the other Party (without penalty or liability).
  • 5.3 Effect of Termination. Upon termination of this Agreement:
    1. Restaurant shall be paid any amounts due from transactions as per normal business procedure outlined in above terms.
    2. 9Fold shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.2 and any other amounts due under this Agreement; and
    3. All rights and licenses granted hereunder will immediately cease, and Restaurant will immediately cease all access to and use of the Platform and 9Fold may draw against the Deposit, as set forth in Section 1.3.
    4. 9Fold shall remove the 9Fold widget from Your website, and You shall assist us in doing so.

 

6. OWNERSHIP.
  • 6.1 Intellectual Property. 9Fold owns and shall own all right, title, and interest in and to the Platform including all source code, object code, operating instructions, and interfaces developed for or relating to the Platform, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “9Fold Intellectual Property”). Restaurant will have no rights with respect to the 9Fold Intellectual Property other than those expressly granted hereunder. Restaurant owns and shall own all right, title, and interest in and to the Restaurant Content and the Restaurant Marks, including all copyrights and other intellectual property rights relating thereto (the “Restaurant Intellectual Property”). 9Fold will have no rights with respect to the Restaurant Intellectual Property other than those expressly granted hereunder. In addition, Restaurant shall own all Data; provided,however, that Restaurant hereby irrevocably grants 9Fold a perpetual, royalty free, non-exclusive, sublicensable, assignable license to reproduce and use such Data to perform its obligations hereunder and for any purpose set forth in 9Fold’s privacy policy.
  • 6.2 Usage of Data. Although Restaurant owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and 9Fold’s privacy policies.

 

7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
  • 7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Restaurant, any franchise agreement.
  • 7.2 Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform; (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders that are scheduled to be delivered to a Customer by a third-party delivery service, Restaurant shall package the Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order is available for pickup upon the third-party delivery service’s arrival; (v) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order that includes alcohol, Restaurant shall abide by such laws, including, without limitation, checking Customer’s ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; 7.3 Disclaimer.
    1. 9FOLD CANNOT GUARANTEE THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM,, AND IT’S COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY 9FOLD HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” 9FOLD MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
    2. 9FOLD HAS MADE EVERY EFFORT TO DISPLAY PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH 9FOLD WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.

 

8. LIMITATION OF LIABILITY.

EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO 9FOLD HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS;  (C) YOUR BREACH OF SECTION 1.4; (II) 9FOLD’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO 9FOLD UNDER THE APPLICABLE ORDER; AND

 

9. INDEMNIFICATION.

Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, You shall indemnify, defend, and hold harmless the 9FOLD Indemnified Parties from and against any and all Losses incurred by such 9FOLD Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Your breach or alleged breach of the Incorporated Terms and/or Section 4.4; (ii) an Adverse Event; or

 

10. PUBLICITY.

During the Term, 9Fold shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that You are a client of 9Fold and a user of the Platform. In addition, upon the reasonable request of 9Fold, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, You, if requested by 9Fold, shall make one (1) or more representatives available for a strategic press interview.

 

11. MISCELLANEOUS PROVISIONS.

The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement is entered into in the State of New York and shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in New York, NY pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, 9Fold may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and it is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that 9Fold may modify this Agreement at any time by posting such modification on Your individual account in Your dashboard, by email or verbally by phone and any such modification shall go into effect thirty (30) days after it is so posted. It is Restaurant’s responsibility to check for such modifications on a regular basis.

 

12. DEFINITIONS.
  • 12.1 “Additional Products and Services” means products and services, other than access to the Platform, that You may order from 9Fold, including, without limitation, website development services, marketing services, and paper products/marketing collateral.
  • 12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order.
  • 12.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
  • 12.5 “Customer” means a party that submits an Order.
  • 12.6 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
  • 12.7 “Effective Date” means the date You accepted this Agreement.
  • 12.8 “Intellectual Property” has the meaning specified in Section 6.
  • 12.10 “Menu” means Your menu submitted to 9Fold, as updated by You from time to time.
  • 12.11 “Order” means a meal order for Your food and/or beverages submitted by Customers through 9Fold via the Platform.
  • 12.12 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
  • 12.14 “Restaurant Content” means any content submitted by You to 9Fold, including, without limitation, the Menu.
  • 12.15 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
  • 12.16 “Term” has the meaning specified in Section 5.1.
  • 12.17 “User” means an employee or agent of Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.