TERMS & CONDITIONS
Elite Market Place has developed proprietary food ordering software that is made available to Restaurant Operator for use on its Website (“Software”) and is the copyrighted work of Elite Market Place. Your use of the software is governed by the terms of this agreement (“License Agreement”). You may not install, reinstall, remove or modify any software that is accompanied by or includes this license agreement. Elite Market Place hereby grants to Restaurant Operator a personal, nontransferable, non-exclusive license to use the software for online ordering powered by the Elite Market Place and for no other purpose. Please note that all software languages, including without limitation HTML, Java, Python, Ruby on Rails, CSS, Ajax, C++ and Active X controls (the “Code”), is owned by Elite Market Place. Any reproduction or redistribution of the software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the software and any accompanying documentation and/or technical information are subject to applicable export control laws and regulations of the U.S.A. You agree not to export or re-export the software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions.
The Restaurant Operator acknowledges and agrees that the end-user customers of the Elite Market Place Software Services (the “Customers”) may place orders with the Restaurant/Caterer clients through the Elite Market Place Website or other media or media channels, devices, software, or technologies as may be included within the Elite Market Place Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant/Caterer Menu (the “Customer Orders”). Upon placement of such a Customer Order, Elite Market Place will send confirmation to the Restaurant/Caterer or Restaurant Operator via tablet (or other hardware device), fax number, email address, or SMS or via POS when applicable, and the Restaurant/Caterer should acknowledge the Customer Order to then fulfill to Customer on a timely basis accordingly.
Restaurant/Caterer Menu and Materials
Elite Market Place agrees to provide, and thereafter maintain and promptly update for so long as Elite Market Place this Agreement is effective, true, accurate, current and complete information regarding the Restaurant/Caterer clients as is requested during the Elite Market Place registration process (the “Registration Process”).
For the purposes of republishing over the internet, Restaurant Operator hereby grants to Elite Market Place 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 Elite Market Place Marketing Activities or the Restaurant Operator; and, in connection with Elite Market Place’s exercise of the license rights granted by the Restaurant Operator, Elite Market Place 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. Elite Market Place does not assert any ownership over the Marketing Materials; rather, as between Elite Market Place and the Restaurant Operator, and subject to the rights granted to Elite Market Place herein, the Restaurant Operator shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
Elite Market Place Services enables a Customer to pay for a Customer Order via credit cards. If the Customer Order is paid via credit card, and Elite Market Place provides the processing services, the full purchase price for such Customer Order, including all applicable taxes, shall be processed and received by Elite Market Place. Elite Market Place will deliver to the Restaurant/Caterer the aggregate purchase price of all Customer Orders applicable to the Restaurant/Caterer that were so processed by Elite Market Place, less Elite Market Place ‘s negotiated sales commission percentage (the “Commission Percentage”) and the applicable credit card merchant payment processing fee, via direct nightly or weekly bank deposit. The Restaurant/Caterer will provide their Tax ID that will be used to setup the Elite Market Place account for nightly direct deposit.
Notwithstanding anything to the contrary herein, the Restaurant/Caterer client 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/Caterer’s use of the Website and the Elite Market Place Services. Elite Market Place may charge and collect sales tax from Customers as an agent on behalf of the Restaurant/Caterer clients in accordance with instructions provided by the Restaurant/Caterer clients or applicable law; and, in which case, Elite Market Place will collect such sales tax solely as an agent on behalf of the Restaurant/Caterer clients and shall pay such amount collected to the Restaurant/Caterer client (or as may be otherwise required by applicable law). The Restaurant/Caterer client shall be solely responsible for verifying amounts collected, ling 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/Caterer client, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Restaurant/Caterer client.
Marketplace Operator Representations, Warrants, and Covenants
The Restaurant Operator hereby represents, warrants, and covenants that: (i) the menu prices charged to Customers t Elite Market Place through the Elite Market Place Restaurant/Caterer client Services will not be higher than those charged to any customers that place orders directly with the Restaurant/Caterer client; (ii) it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Restaurant/Caterer’s client operation of its business; (iii) it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Elite Market Place’s policies; (iv) 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 Elite Market Place, its employees, contractors, shareholders and affiliates, for any and all claims relating thereto against Elite Market Place; (v) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant/Caterer’s client Marketing Materials pursuant to the license rights granted to Elite Market Place 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 (vi) The Restaurant/Caterer’s client Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
Elite Market Place Content
Excluding the Marketing Materials, all of the content on the Elite Market Place Website (the “Websites”) and included in the Elite Market Place Services (including without limitation, all source code, databases, functionality, software, website designs, equipment, audio, video, text, photographs and graphics, the “Elite Market Place Content and Assets”), including the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Elite Market Place, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All Elite Market Place graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Elite Market Place in the U.S. and/or other countries.
Term and Termination
This Agreement is effective upon the Restaurant Operator’s initial Registration Process and will remain in full force and effect for so long as the Restaurant Operator is included on the Elite Market Place Website and as long as the Restaurant Operator utilizes Elite Market Place’s food ordering software and purchased or loaned equipment, as part of the Elite Market Place Services. The Restaurant Operator may terminate this Agreement any time, for any reason, with 30-day’s notice, by providing written notice by the Restaurant Operator to Elite Market Place, as Elite Market Place is investing considerable time and capital to provide Restaurant Operator with its Elite Market Place Operator Services. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. Elite Market Place will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant Operator), remove the Restaurant Operator from inclusion in the Elite Market Place Operator Services, remove the embedded software and the Websites.
Unless paid for in advance, the monthly billing fee will automatically begin 30 days from the time of sign up unless “Go Live” is delayed by Elite Market Place.
Early termination may trigger an early termination fee (dependent on negotiated monthly service fee) or higher per month for the remaining term.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. The Restaurant Operator will return “loaned” equipment (when applicable). 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.
If there is a dispute between the Restaurant Operator and a Customer, including chargebacks, the Restaurant Operator understands and agrees that Elite Market Place is under no obligation with respect thereto, and the Restaurant Operator, to the fullest extent permitted by law, hereby releases Elite Market Place and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and 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 Elite Market Place Operator 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 Elite Market Place Services shall be governed and construed by the law of the State of Hawaii, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Elite Market Place arising out of or related in any respect to this Agreement, the Website, or the Elite Market Place Operator Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over Honolulu County, Hawaii, and the Restaurant Operator hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with Elite Market Place; subject, however, to the right of Elite Market Place, at Elite Market Place’s 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 Operator 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 Operator related in any way to this Agreement, the Websites, or the Elite Market Place Operator Services be instituted more than two (2) years after the cause of action first arose.
To the fullest extent permitted by law, Elite Market Place and its affiliates, 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 Elite Market Place services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement. Elite Market Place makes no warranties or representations about the accuracy or completeness of the website’s or the Elite Market Place services’ content or the content of any other websites linked to the website, and assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content and materials, (b) personal injury or property damage, of any nature whatsoever, resulting from the Restaurant Operator’s access to and use of the website and the Elite Market Place services, (c) any unauthorized access to or use of Elite Market Place‘s servers and/or any and all personal information and/or financial information stored therein, (d) any interruption or cessation of transmission to or from the website or otherwise with respect to the Elite Market Place services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the Elite Market Place services by any third party, and/or (f) 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 Elite Market Place services.
Limitations of Liability
In no event shall Elite Market Place or its affiliates or each of their respective directors, officers, employees, shareholders, contractors, service providers, affiliates, or agents be liable to Restaurant Operator or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from the website or the Elite Market Place services, even if Elite Market Place has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, and to the fullest extent permitted by law, Elite Market Place’s liability to Restaurant Operator for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by the Restaurant Operator to Elite Market Place for the Elite Market Place 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 Operator, some or all of the above disclaimers or limitations may not apply to the Restaurant Operator, and the Restaurant Operator may have additional rights.
if the Marketplace Operator is a California resident, the Restaurant Operator waives California civil code section 1542, which says: “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. ”
The Restaurant Operator hereby agrees to defend, indemnify and hold Elite Market Place and its affiliates, and each of their respective directors, officers, employees, contractors, shareholder, services providers, and agents (collectively, the “Elite Market Place Indemnitees”) harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any party due to or arising out of the Restaurant Operator’s Marketing Materials, the Websites, the Elite Market Place Operator Services, or any breach by the Restaurant Operator of this Agreement. Notwithstanding the foregoing, Elite Market Place reserves the right, at the Restaurant Operator’s expense, to assume the exclusive defense and control of any matter for which the Restaurant Operator may be required to indemnify an Elite Market Place Indemnitee, and the Restaurant Operator agree to cooperate, at the Restaurant Operator’s expense, with Elite Market Place’s defense of such claims. Elite Market Place will use reasonable efforts to notify the Marketplace Operator of any such claim, action, or proceeding, which may be subject to this indemnification upon Elite Market Place becoming thereof.
Elite Market Place hereby agrees to defend, indemnify and hold the Restaurant Operator and it’s affiliates, and each of their respective directors, officers, employees, contractors, shareholder, services providers, and agents (collectively, the “Restaurant Operator Indemnitees”) harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any party due to or arising out of Elite Market Place’s Marketing Materials, the Websites, the Elite Market Place Operator Services, or any breach by Elite Market Place of this Agreement.
Except as explicitly stated otherwise, any notices given to Elite Market Place shall be given by email to email@example.com. Any notices given to the Restaurant Operator shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Restaurant Operator from time to time); provided, however, that Elite Market Place may also give notices via regular mail.
Additionally, the Restaurant Operator may contact Elite Market Place at the address, email and telephone number provided below (as may be updated by Elite Market Place from time to time) with respect to any complaint regarding the Elite Market Place Services or to receive further information regarding the Elite Market Place Services.
ELITE MARKET PLACE
900 Fort Street Mall, Suite 1240
Honolulu, HI 96813
Attn: Customer Support
Phone: (808) 734-7559
This Agreement constitutes the entire agreement between the Restaurant Operator and Elite Market Place regarding the use of the Elite Market Place Services; provided, further, that the Restaurant Operator’s use of and access to the Websites and the Elite Market Place Operator Services shall also be subject to the Term of Use. The failure of Elite Market Place 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 Operator’s account with Elite Market Place (including the Websites and the Elite Market Place Operator Services) may not be assigned by the Restaurant Operator without Elite Market Place’s express written consent. Elite Market Place 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.
Notwithstanding anything to the contrary herein, Elite Market Place reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Websites and the Elite Market Place Operator Services (or any part thereof) with or without notice. The Restaurant Operator agrees that Elite Market Place shall have no liability to the Restaurant Operator or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the Elite Market Place Operator Services.