Effective: 01 January 2020
The Terms and Conditions attached hereto (The” Agreement”) is entered into by EAT APPLICATION DMCC, a limited liability company registered in the United Arab Emirates (The “UAE”) under commercial license number DMCC-164040 with principle address at Unit No: 2401, Platinum Tower, Jumeirah Lake Towers, Dubai, UAE (“Eat App”), and the Legal entity as set forth in the Order Form (The “Subscriber”), (each a “Party”, together the “Parties”). Together with the Terms and Conditions attached hereto, this Agreement governs the Subscribers access to and use of Eat App’s reservation system, online reservation network and related services (The “Platform”). Any Terms used but not defined herein will have the meaning assigned to them in the Order Form.
1.1. Grant by Eat App.
Eat App grants the Subscriber a limited, non- transferable, non-sublicensable license to access and use the Platform to (1) manage guest services at the Venue(s), and (2) access to Eat App’s online Reservation Networks, activating the Subscriber’s Venues and allowing online users to create online reservations during the Term of this Agreement (the “Subscription”). The Subscription includes any changes to the Platform made available to the Subscriber by Eat App at no additional cost (an “Update”). Updates are applied automatically to the Platform. The Subscription extends to any Venue personnel authorized to use the Platform (“Users”).
1.2. Grant by Subscriber.
The Subscriber grants Eat App the right to use its Venue(s) names, restaurant description, images, menu, online reviews, and equivalent identifiers (“Restaurant Description”) on the Platform to facilitate the creation of online reservations through its website, www.eatapp.co (the “Site”), mobile applications, widgets that integrate with the Venue websites or third parties that provide reservation management, online reservations or related services including but not limited to Google My Business, TripAdvisor, Zomato.com, Facebook, Instagram, amongst any other future networks (“Reservation Networks”).
1.3. 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 Eat App and agreed to by the Subscriber. Add-Ons may include integrations to Third Party Services, POS (Point of Sale) integration, online payment services, guest loyalty and reward programs. Where Add-Ons are subject to additional terms, the Subscriber must accept such additional terms prior to accessing the Add-Ons.
As part of the Subscription, Eat App will 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.
Eat App provides up to three (3) 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).
Eat App will configure the Platform (“Implementation”) for each Venue(s) as set forth in the Order Form. Implementation includes account setup and provisioning on Eat App and activation of online reservations on Eat App’s Reservation Networks.
2.4. SMS Texts.
Where SMS texting functionality is supported, the Subscriber will be able to send up to 250 SMS texts per month to guests to confirm a reservation, waitlist entry or status (each, a “SMS”). Additional SMS texts will be billed at $0.06 each, unless additional packages are purchased and indicated in the Order Form.
3. INTELLECTUAL PROPERTY
3.1. Platform Information.
Eat App retains all right, title and interest in the platform, the Platform performance, including response times, load averages, usage statistics, and activity logs, (collectively, “Usage Information”) Usage Information, and any derivative works thereof.
3.2. Subscriber Information.
The Subscriber 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 the Subscriber to Eat App under this Agreement (“Subscriber Information”). For clarity, Subscriber 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 Subscriber 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.
Subscriber grants Eat App (a) access, during the Term, to use Subscriber Information solely to provide the Subscription to perform the Services and for routine archival records, and (b), to use aggregated, de-personalized information derived from Subscriber Information, including Guest Information, to improve the Services, develop new offerings, or for other lawful purposes. Eat App may have independent access to certain Guest Information of Subscriber or other Subscriber Information, and nothing in this Section 3.2 limits Eat App’s right to use such information.
All fees in the Order Form (“Fees”) will be due within ten (10) calendar days of the Effective Date stated on the Order Form. Transaction Fees, including but not limited to Online Per Cover Charges, Online Payment Fees, as stated on the Order Form will be due within ten (10) calendar days from Subscriber’s receipt of the invoice.
Online Per Cover fees do not include No-Show or Canceled reservations (“Non-Materialized Reservations”). An automated report (the “Online Cover Report”) will be made available on the first calendar day of every month, with the list of all online reservations from the previous month, where Venues and Users will be allowed to update reservation details and mark reservations as Non-Materialized Reservations. Online Cover Report will be available with edit access for a total of five (5) calendar days after being sent, after which no amendments will be allowed. If a Venue or User marks a valid reservation, where a Reservation has visited the restaurant (“Materialized Reservation”) as a Non-Materialized Reservation, (a “Breached Reservation”), the Subscriber will be charged a penalty of five-hundred dollars ($500.00) per Breached Reservation, and shall constitute a material breach under Section 5.2. Eat App has the right, at any time, to audit the Online Cover Report and contact guests to verify Non-Materialized Reservations. Reservations that include additional promotions or discounts from online and offline platforms including but not limited to Groupon, Entertainer, Zomato Gold are considered Materialized Reservations.
4.2. Payment Options.
You may elect to have your Fees automatically deducted either via accepted credit card or ACH (the “Automatic Payment Options”), at no additional charge, By providing your payment information for any Automatic Payment Options, you agree that we will charge you for all fees, as indicated in the Order Form, when they become due to us (“Automatic Charges”) and you agree to keep such payment information up to date. For an additional fee of twenty-five dollars ($25.00) per transaction, you may also elect to be invoiced and make manual payments via check or wire, with payments due within ten (10) days from your receipt of the invoice. If you have pre-purchased an online cover package (“Pre-Paid Covers”), then your Online Per Cover fees will automatically be deducted from your credit balance and you will receive a monthly Statement of Accounts with the remainder credits available in your account. No refunds apply to Pre-Paid covers.
Subscriptions will automatically renew at the rates then in effect, until cancelled as set forth in Section 5.1. For clarity, during any Subscription Term, you agree to pay any Transaction Fees that become due, as well as all Subscription Fee payments set forth on your Order Form that are applicable to the entire Subscription Term, regardless of whether you use the Platform or Services for the entirety of such period. Any early termination of an Order Form or this Agreement (other than due to Eat App’s material breach) will not relieve you of this obligation.
Eat App may change the Terms of this Agreement, its Fees and billing practices and upon written notice to you as indicated in Clause 8.2, provided that (i) any pre-paid fees will not be affected by such change and (ii) in the event of any price increases, you will have thirty (30) days to reject any such change by providing a written termination notice to Eat App. If you do not provide a written notice of termination within such thirty-day period, then you will be deemed to have approved and accepted such changes.
4.5. Late Payment.
Eat App may assess a late payment charge of one and a 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 the Subscriber fails to pay overdue Fees within five (5) days of notice that payment is late, Eat App 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 5.2 herein.
The Fees do not include any taxes, duties or similar assessments of any nature that may be imposed on the Services or Subscription (“Taxes”). Subscriber is responsible for paying all Taxes. Eat App will use commercially reasonable efforts to list Taxes as a separate line item on each invoice.
5. TERM AND TERMINATION
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 two (2) years 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 Effective Date indicated on the Order Form. 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 (the “Non-Renewal Notice”) to the expiration of the then-current Term, or as earlier terminated pursuant to Section 5.2.
5.2. 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. Eat App may additionally terminate this Agreement upon shorter written notice if in the reasonable judgement of Eat App, Subscriber’s Venue or Users are acting in a manner that would create imminent and material risk to Eat App.
5.3. Effects of Termination.
Upon expiration or termination of the Agreement or an Order Form, (a) Subscriber’s license to the Platform will terminate and the Subscriber will stop using the Platform and (b) each party will return or destroy any Confidential Information of the other party in its possession. Unless the Subscriber terminates this Agreement for Eat App’s material breach, no prepaid fees will be refunded, and the Subscriber will remain responsible for all Subscription payments for the then-current Term.
6.1. Confidential Information.
“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, and Usage Information is Confidential Information of Eat App; Subscriber Information is Confidential Information of Subscriber. 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.
Each Party hereby agrees to indemnify, defend and hold harmless the other Party, and their respective directors, employees and agents from and against any suits, claims, actions, demands, liabilities, expenses and/or losses, including reasonable legal expenses and reasonable attorneys’ fees (“Losses”) to the extent such Losses result from any: (a) breach of the Agreement or applicable law by such indemnifying Party; (b) negligence or willful misconduct of the indemnifying Party, its Affiliates or (sub)licensees, or their respective directors, employees and agents in the performance of the Agreement
8.1. Entire Agreement.
This Agreement constitutes the entire understanding and agreement of the Parties relating to the subject matter of this Agreement and supersedes, cancels and replaces all prior agreements between the Parties which relate to the same subject matter whether written, oral, express or implied, or which would be inferred from the correspondence, oral statements or conduct of the Parties, and all such agreements shall be deemed to have terminated by mutual consent with effect from the Effective Date.
All legal notices and changes related to this Agreement will be in writing and sent to the Subscriber’s email indicated on the Order Form. All notices required to be given to Eat App shall be in writing and sent to this address: Office 2401, Platinum Tower, Cluster I, JLT, Dubai, United Arab Emirates.
8.3. Governing law and Dispute.
This Agreement shall be governed by and construed in accordance with the laws of the England and Wales. Any dispute or difference between the parties in relation to or arising from this Agreement (including the formation, performance, interpretation, nullification, termination or invalidation of this Agreement) shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Center.
Eat App may list Subscriber as a its client on the Eat App website and marketing materials, and may use the Subscriber’s Restaurant Description to do so consistent with Subscriber’s style guidelines. The Parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
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.
The Services are provided by:
EAT APPLICATION DMCC
Platinum Tower, 2401, JLT
Dubai, United Arab Emirates