DiningTek Restaurant Terms
Updated Nov 11, 2022
These DiningTek Restaurant Terms (these “Terms”) apply to the service relationship between Dining Software Group, Inc. d/b/a DiningTek (“DiningTek”) and the restaurant (“Restaurant”) signing the DiningTek Service Order (the “Service Order”), which is incorporated into these Terms. These Terms and the Service Order are referred to together as the “Agreement.” The Agreement is entered into as of the date set forth on the Service Order (“Effective Date”). Certain capitalized terms used the Agreement are defined in the Section below entitled “Definitions” and others are defined in the remaining sections of these Terms or in the Service Order.
THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION AND A CLASS ACTION WAIVER. IT AFFECTS RESTAURANT’S LEGAL RIGHTS. PLEASE READ IT.
- Term and Termination.
- Term. The Agreement begins on the Effective Date and will continue for a period identified in the Service Order as the Initial Term (“Initial Term”), and thereafter shall automatically renew for consecutive (1) year periods (each a “Renewal Term”, and each Renewal Term and the Initial Term, a “Term”), unless either party provides written notice to the other party at least thirty (30) days prior to the end of the then-current Term that it has elected not to renew the Agreement.
- Termination. Either party may terminate the Agreement before the end of the then current Term if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after the non-breaching party provides written notice to the breaching party of such material breach and the actions required to cure such breach. Restaurant may terminate the Agreement for convenience at any time by providing thirty (30) days’ prior written notice of termination and paying to DiningTek an early termination fee (“Early Termination Fee”) equal to (i) the average amount paid or payable to DiningTek each month under the Agreement for the six (6) months preceding such early termination or, if the Agreement is terminated less than six (6) months in to the Initial Term, for all preceding months of the Initial Term, multiplied by (ii) the number of months remaining in the then current Term. [DiningTek may immediately terminate the Agreement if Restaurant provides any third party with access to the Platform in violation of the Agreement and upon such termination Restaurant shall pay to DiningTek the Early Termination Fee (in addition to any other amounts owed to DiningTek).]
- Effect of Termination. Upon termination of the Agreement: (a) any amounts owed by Restaurant to DiningTek will be immediately due and payable, (b) all rights granted to Restaurant and its Authorized Users by DiningTek will immediately terminate, and (C) Restaurant shall immediately cease using the Platform and return all Confidential Information and Devices to DiningTek. Sections 9-21 of these Terms, the corresponding provisions of the Service Order, and any other terms required for the full interpretation of the Agreement following termination of the Agreement, will survive termination of the Agreement.
- Subject to the terms and conditions of the Agreement and solely to extent such services are selected in the Service Order (such services so selected, the “Services”), DiningTek will: (a) enable customers to purchase food and beverages from Restaurant and provide tips, gratuity, or donations to Restaurant via DiningTek’s proprietary ordering, advertising, and payment processing systems located at DiningTek.com and its associated web-based and mobile properties and apps (the “Platform”), including the DiningTek Business app (the “Business App”) and any personalized apps or websites created by DiningTek for Restaurant, (b) grant Restaurant access to the Platform, (c) develop and maintain a personalized mobile application for Order Processing, (d) develop and maintain a personalized website for Order Processing, (e) provide Digital Advertising Services, and (f) lease tablet computers to Restaurant for use with the Platform.
- Platform Access
- Platform Access. Subject to the terms and conditions of the Agreement, DiningTek grants to Restaurant and each of its authorized employees and agents (“Authorized Users”) a nonexclusive, nontransferable, limited right to access and use the Platform. Authorized Users will use passwords or other credentials (“Passwords”) to receive information from and provide information to DiningTek using the Business App. Restaurant is responsible for maintaining the confidentiality of the Passwords and for any unauthorized use or disclosure of the Passwords.
- Equipment and Telecommunications Access. Restaurant is solely responsible for selecting, purchasing, leasing, installing, and maintaining the hardware, equipment, and software necessary to access and use the Platform other than the Platform itself, including any Device leased to Restaurant by DiningTek. Restaurant is responsible for obtaining all Internet access, modems, routers, and telecommunications lines that may be necessary or useful for accessing and using the Platform and receiving Orders.
- Modifications. DiningTek reserves the right to change, modify, update, and enhance the Platform and to make access to and use of the Platform or any information or functionality available through the Platform subject to additional terms or conditions.
- Restaurant Content. Restaurant must provide DiningTek with its operating hours, menu, pricing, delivery options and parameters, photographs of menu items, logos, artwork, promotional materials, and such other content and information reasonably requested by DiningTek in the form and/or format required by DiningTek (“Restaurant Content”). The Restaurant Content must be provided through the Business App or as otherwise required by DiningTek. At the request of Restaurant, DiningTek may create photographs or videos of Restaurant’s menu items, facilities, and/or premises (“DiningTek Created Content”), which shall be owned by DiningTek. If Restaurant fails to provide photographs of menu items or to authorize and engage DiningTek to provide DiningTek Created Content, DiningTek is authorized to obtain stock photos (“Stock Photos”) to use instead of Restaurant provided photos and such Stock Photos will be deemed to be Restaurant Content. DiningTek is authorized to make the Restaurant Content and DiningTek Created Content available to customers through the Platform in the manner it deems appropriate and will have sole editorial control over the Platform, including the presentation of any Restaurant Content and DiningTek Created Content. Restaurant is responsible for ensuring the accuracy of all Restaurant Content and DiningTek Created Content and must monitor the Platform and promptly notify DiningTek of any changes to or errors in any Restaurant Content or DiningTek Created Content, including any changes to operating hours, menu items, or pricing. DiningTek will use commercially reasonable efforts to update, take down, or otherwise modify Restaurant Content and/or DiningTek Created Content available on the Platform in the manner requested by Restaurant within forty-eight (48) hours after its receipt of a written request from Restaurant to do so. DiningTek may remove Restaurant Content and/or DiningTek Created Content from the Platform at any time if it believes, in its sole discretion, that such Restaurant Content or DiningTek Created Content is false or misleading, violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Platform.
- Website Access. To the extent requested by DiningTek and reasonably required for DiningTek to provide the Services, Restaurant shall grant DiningTek access to any website maintained by Restaurant to enable DiningTek to modify such websites as necessary to provide the Services and hereby authorizes DiningTek to make any such modifications, which may include, but shall not be limited to, the placement of links for online ordering and applicable branded content, and the publication of specials and promotions run by Restaurant.
- Order Processing. Order Processing through the Platform will not begin until DiningTek has received all Restaurant Content it requires. It may take up to ten(10) business days for Order Processing to be available after Restaurant has provided all necessary Restaurant Content to DiningTek. Once live, DiningTek will accept Orders and payment for Orders through the Platform. Payments will be processed by third-party payment processors.
- Order Notices. When an Order is placed through the Platform, DiningTek will promptly deliver notice of the Order (an “Order Notice”) to Restaurant by push notification through the Business App. Each Order Notice will include the customer name and contact information, items ordered, total price, method of delivery (e.g. pick-up or delivery), and such additional information as DiningTek may elect to provide (“Order Information”) so that Restaurant may fulfill the Order. In addition to providing the Order Notice through the Business App, DiningTek may provide alerts in the manner(s) provided in the Service Order alerting Restaurant that an Order has been received and that it should check the Business App to obtain the Order Information. Restaurant must download and install the Business App on a functioning tablet computer and keep the tablet computer powered on and properly functioning (e.g. volume and brightness at sufficient levels) at all times during Restaurant operating hours so that it may receive Order Notices. DiningTek is not responsible for Restaurant’s failure to receive Order Notices due to any failure of the tablet computer or any telecommunications or electrical equipment or service.
- Order Fulfillment. Following the sending of the Order Notice by DiningTek, Restaurant will be solely responsible for Order fulfillment. Restaurant shall accept all Orders placed through the Platform, confirm receipt of all Orders Notices, and prepare all Orders for pick-up or delivery as indicated in the Order Notice and in the order in which they were received. If the Restaurant opts for self-delivery, and if the Order is for local delivery (by the Restaurant), Restaurant shall be responsible for timely delivery of the Order. DiningTek does not provide delivery services however it connects restaurants with third-party delivery services. If the order is for the 3rd party delivery services, DiningTek will forward the order details to 3rd party delivery services and will collect the delivery fee from the diner to pay the 3rd delivery service.
- Receipts and Order Communications with Customers. DiningTek will provide each customer with an electronic receipt for its Order in the manner selected by the customer (e.g., text or e-mail) and may send Order confirmation texts, emails, and similar communications regarding Orders to customers (“Order Communications”). DiningTek retains all rights concerning Order Communications and may include third-party advertisements in any such Order Communications.
- Customer Complaints and Refunds. Unless otherwise agreed by DiningTek, all Orders are final, and all corresponding Fees are earned, when the Order is accepted by DiningTek and the Order Notice is sent by push notification to Restaurant. DiningTek will not accept Orders for fulfillment outside of Restaurant’s operating hour as then reflected in the Platform. DiningTek will be responsible for customer support with respect to the Platform. All other customer issues or complaints will be Restaurant’s sole responsibility. DiningTek has no obligation to issue refunds to customers except with respect to any Order processed by DiningTek for fulfillment outside of Restaurant’s operating hours as then reflected in the Platform and in such event the refund shall be Restaurant’s sole remedy. Restaurant may request that DiningTek refund part or all of an Order only if items requested in the Order are out-of-stock, missing, or incorrect. To process a refund, Client must immediately notify DiningTek of the Order and amount to be refunded. All refunds will be processed on Tuesday and Friday of each week, unless such day is on a holiday, then such refund will be processed either the day before or the day after.
- Digital Advertising Services. If the Service Order indicates that Digital Marketing Services will be provided by DiningTek, then the following provisions shall apply:
- Social Media Access and Posting. Restaurant shall provide DiningTek with access to all social media accounts maintained by Restaurant and authorizes DiningTek to make posts through such accounts in accordance with the marketing plan agreed to by Restaurant (the “Marketing Plan”). Unless otherwise specifically provided in the Marketing Plan, social media posts will be made no more than once-per-week per social media account and will be limited to posts suggesting that customers visit or Order from Restaurant or providing updates concerning specials or other information provided by Restaurant to DiningTek. DiningTek will not manage Restaurant’s social media accounts or respond to third-party posts. If DiningTek posts any content that is in error, incorrect, infringing, or otherwise problematic or should be removed on any of Restaurant’s websites or through its social media accounts, DiningTek shall use commercially reasonable efforts to remove such content within forty-eight (48) hours after its receipt from Restaurant of a written request to remove such content. DiningTek’s obligation to use commercially efforts to remove such content at its own cost is and shall be Restaurant’s sole remedy with respect to any such posting.
- Marketing Review. A representative of Restaurant shall meet with DiningTek at least once per month for as long as necessary to discuss the Marketing Plan and current and future marketing, specials, and promotions of Restaurant. Should Restaurant fail to meet with DiningTek at least once per month after DiningTek has made reasonable efforts to accommodate Restaurant’s requests with respect to the timing of such meetings, then DiningTek may either continue providing Digital Marketing Services to Restaurant in accordance with the Marketing Plan and otherwise in its reasonable discretion, including with respect to the content and timing of marketing efforts or to suspend the Digital Advertising Services until such time as Restaurant meets with DiningTek to discuss the marketing efforts.
- Device Lease. If the Service Order provides for the lease of one or more tablet computers to Restaurant by DiningTek (“Device”), then DiningTek will deliver the Device(s) to Restaurant. Any Device provided to Restaurant will remain the property of DiningTek and is provided “as is” without any warranties of any kind either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. DiningTek is not responsible for any defect, damage, or loss to the Device or for repairing or replacing a Device. Restaurant must return the Device in good working order, normal wear and tear accepted, at the end of the Device lease. DiningTek may require Restaurant to return any Device to DiningTek at any time, including, without limitation, in the event the Agreement is terminated. Any Device provided to Restaurant by DiningTek may only be used to access and use the Platform, and may not be used for any other purpose, and may not be transferred, loaned, sold, or otherwise provided in any manner to any third party.
- Fees, Taxes, and Payment Terms
- Fees. In consideration for the Services, Restaurant shall pay to DiningTek the fees and charges set forth in the Service Order (“Fees”).
- Customers who purchased the DiningTek Online Ordering License will not pay monthly subscription fees and delivery commissions for the duration of 3 years from the date of purchase. The customer will pay applicable credit card fees for each online order. (DiningTek Online Ordering License fee is non-refundable.)
- Taxes. Fees are exclusive of Taxes and Restaurant shall pay or reimburse DiningTek for all Taxes arising out of the Agreement or the transactions contemplated by the Agreement.
- Payment Terms. DiningTek utilizes the services of various merchant processing systems. All amounts collected from customers of Restaurant shall be processed by the merchant processing system chosen by [DiningTek] (the “MPS”). At the option of Restaurant, DiningTek shall direct the MPS to either (a) separate from the Gross Order Amount all Fees and Taxes due hereunder and remit such Fees and Taxes to DiningTek and the remainder directly to Restaurant, or (b) remit the entire Gross Order Amount to DiningTek and DiningTek shall deduct all Fees and Taxes due hereunder from the Gross Order Amount and remit the remainder to Restaurant. Such remittance by DiningTek to Restaurant shall be made on a weekly basis unless an alternative remittance schedule is provided for in the Service Order. DiningTek may invoice Restaurant on a weekly or monthly basis for any Fees and Taxes not paid to it in the foregoing manner and Restaurant shall pay the amounts invoiced within seven (7) days of the date of the invoice. DiningTek shall not be liable to Restaurant for any delays in payment caused by the MPS, Restaurant, or any third party, including as a result of Restaurant providing DiningTek with incorrect bank account and routing information. If requested by DiningTek, Restaurant agrees to pay Fees and Taxes through ACH or another automatic payment mechanism acceptable to DiningTek. Fees and Taxes paid are non-refundable and DiningTek may assess interest on unpaid Fees and Taxes from the due date until the date paid at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Fee or Tax is overdue, DiningTek may suspend provision of the Services, including access to the Platform, until the overdue Fee or Tax has been paid in full. Restaurant agrees to pay all costs incurred by DiningTek in collecting overdue Fees, Taxes. and interest, including reasonable attorneys’ fees.
- Non-Solicitation. Restaurant covenants and agrees that during each Term and for a period of 18 months following the termination of the Agreement, Restaurant, its agents and affiliates, and any one acting by, for, or at the request or direction of any of the foregoing, shall not, directly or indirectly: (i) induce, or attempt to induce, any employee or independent contractor of DiningTek to leave the employ of or engagement by DiningTek, or in any way interfere with the relationship between DiningTek and any of its employees or independent contractors; (ii) employ, hire or otherwise retain any person who is or was an employee or independent contractor of DiningTek while such person has any relationship with DiningTek and for one hundred eighty (180) days thereafter; or (iii) solicit or induce, or attempt to solicit or induce, any prior, existing or prospective customer, supplier, licensor, licensee, lessor or other business relation of DiningTek to cease or refrain from doing business with, or reduce its business with, DiningTek.
- Ownership and Licenses. DiningTek owns all right, title, and interest in and to the Platform and any content supplied by DiningTek including, but not limited to any DiningTek Created Content and any other digital images, photographs, or videos taken by or on behalf of DiningTek to be used in connection with providing the Services to Restaurant. For the term of the Agreement and for six (6) months thereafter, Restaurant hereby grants to DiningTek a royalty-free, worldwide, sub-licensable, transferable, fully paid-up, irrevocable right and license to use the Restaurant Content on the Platform, and for marketing and promotional purposes via any means now known or hereinafter developed. Restaurant owns all right, title, and interest in and to the Restaurant Content, subject to the license granted to DiningTek herein.
- Restaurant Representations, Warranties, and Covenants. Restaurant represents, warrants and covenants that: (a) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (c) Restaurant owns or has sufficient rights to use all rights, title and interest in and to the Restaurant Content, including, without limitation, any images, writings, drawings, graphics, music or otherwise, and that the Restaurant Content does not and will not infringe or otherwise violate the rights of any third party; (d) to the extent required by law, any person whose image, name or likeness appears in any of the Restaurant Content where such image, name or likeness was photographed or otherwise recorded by or on behalf of Restaurant has (i) knowingly and validly consented to the use thereof, (ii) executed and delivered a sufficient, valid and enforceable “image and likeness” release, (iii) waived and released their rights with respect to Restaurant’s use of their image, name or likeness, including rights of privacy and publicity, and (iv) is of legal age and capacity to consent to such use of their image, name or likeness, execute and deliver such release and waive such rights; (e) it will comply with all applicable retail food, beverage (including alcohol), and other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (f) it will provide accurate Tax rates and calculations to DiningTek; and (g) it will remit to the applicable taxing authority all legally-required Taxes and will file all required Tax returns and forms. In the event that Restaurant includes alcohol in its menu on the Platform, Restaurant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Restaurant will provide DiningTek with a copy of the Liquor Licenses and all renewals thereof and will immediately notify DiningTek if any Liquor License is not renewed or if it is revoked, cancelled, or surrendered at any time during the term of the Agreement. Restaurant is responsible for ensuring that any recipient of alcohol, whether picked-up or delivered, is at least 21 years of age by requiring a valid government-issued identification card at the time of pick-up or delivery.
- Indemnification. Restaurant will indemnify and hold DiningTek (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings, and damages arising out of Restaurant’s activities, including, without limitation, (a) any third-party transactions or financing arrangement; (b) Restaurant’s provision, calculation, reporting, payment or remission of Taxes; (c) any breach or alleged breach of the representations, warranties, or covenants set forth in the Agreement, or (d) any content posted on Restaurant’s website or social media accounts. DiningTek will provide prompt notice to Restaurant of any third-party claim subject to indemnification hereunder and Restaurant will assume the defense of the third-party claim through counsel designated by it and reasonably acceptable to DiningTek, provided that DiningTek may use counsel of its choice at its own expense. Restaurant will not settle or compromise or consent to the entry of any judgment with respect to any claim or matter for which DiningTek may be entitled to indemnification hereunder without the written consent of DiningTek, which will not be unreasonably withheld. DiningTek will reasonably cooperate with Restaurant in the defense of any third-party claim at Restaurant’s expense.
- Warranty Disclaimer and Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, DININGTEK AND ALL DiningTek PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE PLATFORM, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER DiningTek NOR ANY DiningTek PARTNER WILL BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM The SERVICES, any RESTAURANT CONTENT, or the FAILURE OF THE PLATFORM. DiningTek WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RESTAURANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF diningtek has been made aware of THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. dinintek’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF fees EARNED BY DiningTek DURING THE three (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT that GAVE RISE TO SUCH liability. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Dispute Resolution.Restaurant and DiningTek agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available atadr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Denver, CO, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability, or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
“Customer Data” means (a) any and all information about customers generated or collected by DiningTek or Restaurant through the Platform or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies, and (b) any additional or other information that may otherwise be considered “personal data” or “personal information” under applicable law.
[“Digital Advertising Services” means the posting of advertising materials through digital channels, including social media, in accordance with the Marketing Plan agreed to by Restaurant.]
“Gross Order Amount” means the gross amount of the Order, including tips, gratuity, donations, and Taxes, and before deducting any Fees.
“Order” means an order for food or service from Client placed by a Customer through the Platform.
“Ordering Processing” means the process of receiving an Order, processing payment therefor, delivering the corresponding Order Notice to Restaurant, and remitting the payment less all Fees and Taxes to Restaurant.
“Tax” or “Taxes” means any sales, use, value added, and other taxes (other than taxes on DiningTek’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by the Agreement that are imposed by any government, governmental agency or other authority.
- Notices. All notices (other than Order Notices, which shall be given as provided herein) under the Agreement must be in writing and will be deemed to have been duly given if given on the earliest to occur of (a) upon delivery, or refusal of delivery, if personally delivered; (b) on the third business day after deposit with the United States Postal Service if sent by certified mail; (c) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (d) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Restaurant will be sent to Restaurant at the address or e-mail address provided on the Service Order under “Restaurant Information,” or such other address or e-mail address provided to DiningTek by Restaurant and accepted by DiningTek in writing. All notices to DiningTek will be sent to the below, unless otherwise provided by DiningTek:
Dining Software Group, Inc.
390 Interlocken Crescent, Suite 350
Broomfield, CO 80021
Attn: Legal Department