Restaurant Agreement
This Restaurant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant"), and KodeXperts Software Solutions Private Ltd and its affiliates (collectively, "Fudiyo"), regarding the Restaurant's use of Fudiyo' website, currently located at http://www.Fudiyo.com (including the webpages contained or hyperlinked therein and owned or controlled by Fudiyo, the "Website"), Fudiyo mobile application and the Restaurant's inclusion in applicable services provided by Fudiyo via the Website (as determined by Fudiyo from time to time and in its sole and absolute discretion) and such other media or media channels, devices, software, technologies or Mobile applications as Fudiyo may choose from time to time (the "Fudiyo Services").
Restaurant Menu
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"). Fudiyo 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 Fudiyo'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 Fudiyo with the Restaurant's current menu, and any updates, changes, or modifications thereto (the "Restaurant Menu"), in such format as is requested by Fudiyo (collectively, the "Marketing Materials"). It will be requested for Fudiyo' inclusion in the Website and the Fudiyo Services or for any marketing, or advertising activities undertaken by Fudiyo, in its sole and absolute discretion (the "Fudiyo Marketing Activities"). The Restaurant hereby grants to Fudiyo 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 Fudiyo Services, or the Fudiyo Marketing Activities; and, in connection with Fudiyo' exercise of the license rights granted by the Restaurant. Fudiyo 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. Fudiyo does not assert any ownership over the Marketing Materials; rather, as between Fudiyo and the Restaurant, and subject to the rights granted to Fudiyo herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
Orders
The Restaurant acknowledges and agrees that the end-user customers of the Fudiyo Services (the "Customers") may place orders with the Restaurant through the Fudiyo Website or Mobile App or media channels, devices, software, or technologies included within the Fudiyo Services. The Customer may use these services for the food and beverages for pick-up, delivery, and table reservation services in connection therewith, as is set forth on the Restaurant Menu (the "Customer Orders".) Upon placement of such a Customer Order, Fudiyo will send electronic confirmation thereof to the Restaurant via the email address currently in the Restaurant's Website account information or via such other delivery method as Fudiyo and the Restaurant may agree upon (the "Order Confirmation"), and which Order Confirmation contains a confirmation code for the Customer Order. Fudiyo currently follows the Order Confirmation with an automatic email (the "Email Confirmation"). Fudiyo requests that the Restaurant confirm receipt of the Order Confirmation by Accepting or Rejecting Customer Orders via Fudiyo Website or Mobile App; these Email Confirmations are saved in the database and the Restaurant hereby consents to such recording (and will notify all of its employees and service providers that receive the Email Confirmations that the email will be saved).
When the Restaurant provides a Customer with the applicable Customer Order (either via pick-up, delivery or reservation), the Restaurant agrees to have the Customer sign the Fudiyo 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 Fudiyo copies of this executed Order Receipt Form upon request by Fudiyo.
Payment
Fudiyo Services currently allow a Customer to pay for a Customer Order via credit card, debit card, net banking (using PayUMoney Payment gateway), or through payment directly to the Restaurant. If the Customer Order is paid via credit card, debit card, net banking , the full purchase price for such Customer Order, including sales and any other applicable taxes, shall be processed and received by Fudiyo, and at least once per calendar month Fudiyo will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by Fudiyo, and less Fudiyo' commission percentage (the "Commission Percentage") and the applicable credit card merchant payment processing, via direct bank deposit or check, as determined by Fudiyo. If the Customer Order is to be paid directly to the Restaurant, then, at least once per calendar month, Fudiyo may invoice the Restaurant for the Commission Percentage due on applicable Customer Orders. 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 Fudiyo' 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.
Taxes
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 Fudiyo Services. Fudiyo 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. In such case, Fudiyo 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, delivery, and table reservation services (if applicable), by the Restaurant.
Restaurant Representations, Warrants, and Covenants
The Restaurant hereby represents, warrants, and covenants that:
- The prices charged to Customers through the Fudiyo Services will not be higher than those charged to any customers that place orders directly with the Restaurant.
- It will comply, and prepare, sell, market, and provide all foods in strict compliance, with all central (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.
- It will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Fudiyo' then-current policies.
- 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 Fudiyo for, any and all claims relating thereto against Fudiyo.
- 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 Fudiyo 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
- The Restaurant's Marketing Materials do not violate any state or central (federal) law, rule, or regulation applicable thereto, including with respect to electronic advertising.
Fudiyo Content
Excluding the Marketing Materials, all of the content on the Website and included in the Fudiyo Services (including without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics, the "Fudiyo Content"), including the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Fudiyo. These are subject to copyright and other intellectual property rights under India, United States and foreign laws and international conventions. All Fudiyo graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Fudiyo in India, United States and/or other countries. Fudiyo' 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 Fudiyo. The Restaurant agrees not to circumvent, disable, or otherwise interfere with any security related features of the Website or the Fudiyo Services, or any other features that seeks to either prevent or restrict the use or copying of any Fudiyo Content or enforce limitations on use of the Website, the Fudiyo Services, or the Fudiyo Content therein.
Customer Data
"Customer Data" means any and all identifiable information about purchasers generated or collected by Fudiyo or the Restaurant, including, but not limited to, purchasers' name, shipping addresses, email addresses, phone numbers, and purchaser preferences and tendencies. The Restaurant agrees that the Restaurant will only use the Customer Data in fulfilling the applicable Customer Order and in complying with the Restaurant's obligations in this Agreement, and the Restaurant agrees that Customer Data will not be used to enhance any file or list of the Restaurant or any third party. The Restaurant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Restaurant agrees that it will not copy or otherwise reproduce any Customer Data other than for fulfilling the applicable Customer Order. The Restaurant (and any other persons to whom the Restaurant provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data. If any Customer Data is collected by the Restaurant (or otherwise on its behalf), the Restaurant shall ensure that it (and any applicable third parties) adopt, post, and processes the Customer Data in conformity with an appropriate and customary privacy policy.
For purposes of this Agreement, the restrictions set forth herein on the Restaurant's use of Customer Data do not apply to:
- Data from any customer who was a customer of Restaurant prior to the Restaurant using the Website or the Fudiyo Services, but only with respect to data that was so previously provided to the Restaurant by such customer; or
- Data supplied by a customer directly to the Restaurant who becomes a customer of the Restaurant and who explicitly opts in to receive communications from the Restaurant for the purposes for which such Customer Data will be used by Merchant. It will be provided in all cases, that the Restaurant handles and uses such Customer Data in compliance with applicable Laws and the Restaurant's posted privacy policy.
Term and Termination
This Agreement is effective upon the Restaurant's initial Registration Process; it will remain in full force and effect for so long as the Restaurant is included on the Website as part of the Fudiyo Services. Fudiyo 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. Fudiyo will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant), remove the Restaurant from inclusion in the Fudiyo Services and the Website.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders before 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.
Disputes
If there is a dispute between the Restaurant and a Customer, the Restaurant understands and agrees that Fudiyo is under no obligation with respect thereto, and the Restaurant, fully permitted by law. The Restaurant hereby releases Fudiyo and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors. The Restaurant 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 Fudiyo 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 Fudiyo Services shall be governed and construed by the law of the State of Maharashtra, excluding such state's conflicts of law rules. Any legal action of whatever nature by or against Fudiyo arising out of or related in any respect to this Agreement, the Website, or the Fudiyo Services shall be brought solely in the applicable central (federal) or state courts located in or with jurisdiction over Pune, Maharashtra. The Restaurant hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with Fudiyo; subject, however, to the right of Fudiyo, at Fudiyo' 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 Fudiyo Services be instituted more than two (2) years after the cause of action first arose.
Disclaimers
TO THE FULLEST EXTENT PERMITTED BY LAW, FUDIYO 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 FUDIYO SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FUDIYO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S OR THE FUDIYO SERVICES' CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE. FUDIYO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
- ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS,
- PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE RESTAURANT'S ACCESS TO AND USE OF THE WEBSITE AND THE FUDIYO SERVICES,
- ANY UNAUTHORIZED ACCESS TO OR USE OF FUDIYO' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
- ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR OTHERWISE WITH RESPECT TO THE FUDIYO SERVICES,
- ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE FUDIYO SERVICES BY ANY THIRD PARTY, AND/OR
- 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 FUDIYO SERVICES.
Limitations Of Liability
IN NO EVENT SHALL FUDIYO OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, 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 FUDIYO SERVICES. THIS APPLIES EVEN IF FUDIYO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED, HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, FUDIYO'S LIABILITY TO RESTAURANT FOR ANY CAUSE WHATSOEVER. REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE RESTAURANT TO FUDIYO FOR THE FUDIYO 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 NONE OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY APPLY TO THE RESTAURANT, AND THE RESTAURANT MAY HAVE ADDITIONAL RIGHTS.
Indemnity
The Restaurant, hereby agrees to defend, indemnify and hold Fudiyo and its affiliates, and each of their respective directors, officers, employees, services providers, and agents (collectively, the "Fudiyo Indemnitees"), harmless from and against, any loss, damage, liability, claim, or demand. It includes reasonable attorneys' fees and expenses, made by any party due to or arising out of the Restaurant's Marketing Materials, the Website, the Fudiyo Services, or any breach by the Restaurant of this Agreement. Notwithstanding the foregoing, Fudiyo 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 Fudiyo Indemnitee, and the Restaurant agree to cooperate, at the Restaurant's expense, with Fudiyo' defense of such claims. Fudiyo will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding, which may be subject to this indemnification upon Fudiyo becoming thereof.
Insurance
The Restaurant, at all times shall maintain comprehensive public liability insurance (which may be under a blanket policy). It should insure the Restaurant against any liability arising due to the lease, use, occupancy of maintenance of its premises and all areas appurtenant thereto and the operation of the business. It will have a limit of not less than $2,000,000 (or equivalent Indian Rupees) combined single limit for injury to, or death of, one or more persons per occurrence, and for damage to tangible property per occurrence.
Notices
Except as explicitly stated otherwise, any notices given to Fudiyo shall be given by email to info@fudiyo.com. Any notices given to the Restaurant shall be sent 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 Fudiyo may also give notices via regular mail.
Additionally, the Restaurant may contact Fudiyo at the address and telephone number provided below (as may be updated by Fudiyo from time to time) with respect to any complaint regarding the Fudiyo Services or to receive further information regarding the Fudiyo Services.
Fudiyo.com
1/21 Shreeman Society
Karvenagar,
Pune 411052
Attn: Fudiyo Restaurant Support
Email: info@fudiyo.com
Phone: 020-65206520
Miscellaneous
This Agreement constitutes the entire agreement between the Restaurant and Fudiyo regarding the use of the Fudiyo Services; provided, further, that the Restaurant's use of and access to the Website and the Fudiyo Services shall be subject to the Term of Use (currently available here Fudiyo.com/termsofuse). The failure of Fudiyo 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 Fudiyo (including the Website and the Fudiyo Services) may not be assigned by the Restaurant without Fudiyo' express written consent. Fudiyo 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.
Modifications
Fudiyo 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, Fudiyo 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 Fudiyo Services (or any part thereof) with or without notice. The Restaurant agrees that Fudiyo 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 Fudiyo Services.