Carriage House Merchant Agreement
Carriage House has a structured model that focuses on all three sides
of the business model of food supply and can establish coordination
between restaurants, couriers and customers. It allows restaurants and
customers, giving them the ability to track the courier's location to
predict the time of shipment or delivery. Carriage House acts as an
integrator between restaurants and users who want to order food
online. It also offers employment to people looking for full-time or
part-time employment. Thus, the customer segments related to Carriage
House Business Model are: In addition to no commissions, there is a
one-time $250 per location fee to set up menu and online marketing and
you’re advertising on their application. (Click here) Each order is
its own separate contract, in accordance with our contract with
Carriage House. The affiliated restaurant must be paid for orders by
Courier with a company card or Smart phone technology. that are
awarded and accepted by binders by contract if they are delayed by the
application or restaurant.
The platform allows users to find a restaurant and order food on one
side, and on the other, Carriage House gives restaurants access to a
wider clientele. It also benefits people by offering them jobs for the
supply of food. Since its inception, Carriage House has been able to
raise decent financing from investors and has partnered with many
popular restaurant chains in major U.S. cities. Carriage House hires
its own couriers, called Couriers. The delivery rate depends on the
distance from the trip and Carriage House`s connection which is
normally a 10-mile radius. For now, Carriage House focuses solely on
the supply of food, but in the long run it could expand to other
spaces and face fierce competition in the on-demand delivery industry.
Partnership Terms
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Whereas the Partners wish to collaborate in the governance of
the Restaurant, the Partners agree to the following:
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The Partners agree to an affiliated partnership for Carriage
House food delivery to act as a third-party food delivery
service.
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The Restaurant’s principal place of business shall be the
address listed above. All records related to the partnership
or the Restaurant shall be maintained at this address.
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This restaurant partnership agreement shall commence as of the
date it is signed by both partners, and shall continue
indefinitely until rightfully dissolved by either partner.
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The Partners may continue to engage in additional, non-related
business interests, but must disclose those ventures to the
other Partner.
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Restaurant gives Carriage House consent to utilize the
restaurant's logo, menu images and food names for purposes of
marketing merchants on delivery food app and website.
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At time of sign-up, Carriage House charges the restaurant a
one-time signup fee of $250 for addition of the restaurant to
the platform, menu build-out, and marketing.
BEFORE YOU USE THE CARRIAGE HOUSE MARKETPLACE, STOREFRONT,
AND/OR CARRIAGE HOUSE COURIER ("PLATFORM") PLEASE READ THESE
TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET OR STOREFRONT
ORDER ADDENDUM WITH CARRIAGE HOUSE OR USING THE PLATFORM, YOU,
ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING
STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE
TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR
STOREFRONT ORDER ADDENDUM.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT
YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED
BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR,
SETING FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED
EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO
BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE
ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE
CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS
A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE
ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK
RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR
CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO
PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE
SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION
AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT,
AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
1. Definitions.
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“Courier” means independent third-party delivery contractor.
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“Delivery API” means the CARRIAGE HOUSE application
programming interface (API) that allows the Merchant to
exchange information with CARRIAGE HOUSE.
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“CARRIAGE HOUSE Data” shall mean any information that CARRIAGE
HOUSE provides or makes accessible to Merchant through the
CARRIAGE HOUSE Platform, including without limitation Personal
Information.
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“Shopper” means the customer who places an order for Merchant
Products through the CARRIAGE HOUSE Platform or CARRIAGE HOUSE
Site.
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“CARRIAGE HOUSE Marketplace” means CARRIAGE HOUSE’s
proprietary online communication platform where Customers can
view and search for the menus of Merchants and/or place an
order for Merchant Products via the CARRIAGE HOUSE website or
mobile application for delivery by a Courier to the Customer
or for pickup by Customer.
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“CARRIAGE HOUSE Platform” means CARRIAGE HOUSE Marketplace
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“CARRIAGE HOUSE Drive” means the platform that enables
delivery fulfillment for orders placed directly with the
Merchant by the Customer.
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“CARRIAGE HOUSE Services” means CARRIAGE HOUSE Platform and,
CARRIAGE HOUSE Drive, as applicable.
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“Drive Orders” means orders placed by Merchant for delivery
fulfilment by CARRIAGE HOUSE.
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“Drive Term” means the term of the agreement between CARRIAGE
HOUSE and Merchant for CARRIAGE HOUSE Drive.
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“Marketplace Orders” means orders for Merchant Products
through the CARRIAGE HOUSE Platform from Customers for
delivery by Courier.
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“Merchant” means the restaurant or other entity that has
agreed to participate in the CARRIAGE HOUSE Services.
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“Merchant Products” includes all products offered for take-out
or delivery orders at Merchant Stores.
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“Merchant Stores” means the Merchant restaurant locations that
participate in the CARRIAGE HOUSE Services and includes: (i)
Merchant Stores owned and operated by Merchant or its
affiliates, and/or (ii) Merchant Stores owned and operated by
Franchisees of Merchant or its affiliates.
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“Marketplace Term” means the term of the agreement between
CARRIAGE HOUSE and Merchant for the CARRIAGE HOUSE Platform.
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“Pick Up Orders” means orders for Merchant Products through
the CARRIAGE HOUSE Platform from Customers for pickup by the
Customer.
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“Pick Up Program” means Customers can view and search for the
menus of Merchants and place an order for Merchant Products
via the CARRIAGE HOUSE Platform for pickup by the Customer.
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“Order” means a Marketplace Order, a Pick -Up Order, or a
Drive Order, as applicable.
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“Personal Information” shall mean any information exchanged
under this Agreement that (i) identifies or can be used to
identify an individual (including without limitation, names,
telephone numbers, addresses, signatures, email addresses or
other unique identifiers); or (ii) that can reasonably be used
to authenticate an individual (including without limitation,
name, contact information, precise location information,
access credentials, persistent identifiers and any information
that may be considered ‘personal data’ or ‘personal
information’ under applicable law).
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“Commission Rate” Because CARRIAGE HOUSE has no integration
system or software. We are able to cut the commission rate to
$0.00 per as long as this agreement is in place. In the event
CARRIAGE HOUSE is purchased by another brand they would have
to honor the electronically signed agreement and can’t change
this policy under any circumstances to be modified for a
minimum of 10 years of the finalization of the legal transfer.
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“Schedule for Later Order” shall mean an Order to be fulfilled
at a particular time later in the same day or at a later date.
- “Terms” means the provisions herein.
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“Third Party Platform” means a technology interface, such as a
middleware technology platform, other than the online order
form and the Delivery API that enables Merchant to request
delivery fulfillment and provide information necessary to
enable such delivery fulfillment.
2. The Parties' Relationship.
CARRIAGE HOUSE provides the CARRIAGE HOUSE Marketplace the
web-based technology that connects Merchants, independent
delivery contractors ("Courier") and Customers, as described in
these Terms for CARRIAGE HOUSE Platform. CARRIAGE HOUSE is not a
merchant, seller of goods, or delivery service; it is an online
connection platform. Merchant and CARRIAGE HOUSE agree they are
independent businesses whose relationship is governed by the
Sign-Up Sheet, these Terms, and any applicable terms between the
Parties. Nothing in the Parties' agreements, relationship or
transactions shall create or be construed as creating an agency,
partnership, fiduciary or joint venture relationship between
CARRIAGE HOUSE and Merchant (or Merchant's employees,
representatives or locations), CARRIAGE HOUSE and Courier, or
CARRIAGE HOUSE and Shopper. Except as expressly set forth in the
Sign-Up Sheet, these Terms, and any applicable terms between the
Parties, each Party shall be responsible for its own expenses,
profits and losses.
3. CARRIAGE HOUSE Marketplace Core Responsibilities.
For Merchants that have agreed to participate in the CARRIAGE
HOUSE Marketplace, CARRIAGE HOUSE and Merchant shall have the
following responsibilities during the Marketplace Term:
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CARRIAGE HOUSE Core Responsibilities. CARRIAGE HOUSE will, in
a timely manner:
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Display Merchant’s logo; a listing of the Merchant Stores;
and a menu of Merchant Products on the CARRIAGE HOUSE
Platform;
- Accept Marketplace payments from Courier;
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Forward each Marketplace Order to the relevant Merchant
Store; and
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Forward each Marketplace Order to a Courier, so that the
Courier can pick up the applicable Merchant Product(s)
from the Merchant Store to deliver to the Shopper.
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Merchant Core Responsibilities. Merchant will, in a timely
manner
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Provide CARRIAGE HOUSE with the Merchant’s in-store or
take-out menu, including the price of each item on such
menu;
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Monitor Merchant’s menu and store information on the
CARRIAGE HOUSE Platform, promptly make updates via the
Merchant Portal to reflect the most up-to-date products,
pricing and other information or immediately notify
CARRIAGE HOUSE of any errors or changes in writing;
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Accept all Marketplace Orders placed by CARRIAGE HOUSE
from Merchant’s then-current menu;
- Confirm all Marketplace Orders from CARRIAGE HOUSE;
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Prepare the Merchant Products for each Marketplace Order
for pickup by a Courier’s at the designated time;
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Process Marketplace Orders in the order in which they are
received;
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Notify CARRIAGE HOUSE of any changes to the pricing,
availability, description, or other characteristics of the
Merchant Products;
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Notify CARRIAGE HOUSE of its days and hours of operation,
and remain open for business on CARRIAGE HOUSE the same
days and hours of operation as Merchant’s in-store
business; notify CARRIAGE HOUSE of any changes to
Merchant’s hours of operations on holidays; and notify
CARRIAGE HOUSE if Merchant closes earlier than Merchant’s
standard hours of operation or plans to close earlier than
Merchant’s standard hours of operation;
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Notify all Merchant store staff members of the
relationship with CARRIAGE HOUSE immediately upon
execution of this Agreement;
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Provide the same utensils, napkins, bags and other
materials that Merchant would typically provide in a
standard take-out or delivery order, subject to Section
15(3)(i);
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If CARRIAGE HOUSE collects and passes tips from Customers
to Merchant, Merchant will distribute such tips in
accordance with applicable law, including but not limited
to tip pooling laws.
5. Refunds and Re-Orders.
Refunds and re-orders will be addressed as follows:
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Marketplace Order Refunds. In the event that CARRIAGE HOUSE,
in its sole reasonable discretion, has to issue a refund,
credit or re-order on an Customer’s Order, Merchant will
prepare the food to the same specifications as the original
Order (in the case of a re-order) and bear the full cost of
that refund, credit or re-order, as applicable, unless the
refund, credit or re-order is due to the fault of the
Courier’s or CARRIAGE HOUSE.
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Drive Order Refunds. Merchant acknowledges and agrees that
CARRIAGE HOUSE shall be responsible only for facilitating the
delivery of Merchant Product(s) to Customers. Merchant shall
be solely responsible for any customer complaints regarding
Merchant Product(s), including without limitation, complaints
regarding the nature, quality, content, number, or packaging
of Merchant Product(s). Merchant agrees not to refer any
Customer complaints directly to CARRIAGE HOUSE. Any complaints
regarding the timeliness or quality of a Courier’s delivery
service shall be reported by Merchant to CARRIAGE HOUSE. If
Merchant elects to refund a Customer for any reason, such
election shall not obligate CARRIAGE HOUSE to provide a
corresponding reimbursement to Merchant. In the event that a
Merchant Product has been visibly damaged with proof from
Customer, CARRIAGE HOUSE may reimburse Merchant for all or a
portion of the order subtotal. For the purposes of this
agreement, “Merchant Product” is the actual food or beverage
item, not the packaging that contains the Merchant Product. In
no event shall CARRIAGE HOUSE be obligated to issue any
refunds directly to Customers.
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Pick-Up Order Refunds. CARRIAGE HOUSE shall be responsible for
customer support issues relating to the ordering of Merchant
Products and issues relating to a Shopper’s CARRIAGE HOUSE
account. All other customer issues or complaints will be the
Merchant's sole responsibility. In the event that CARRIAGE
HOUSE, in its sole discretion, determines to issue a refund,
credit or re-order for a Customer’s Order, Merchant will
prepare the food to the same specifications as the original
Pick-Up Order (in the case of a re-order) and bear the full
cost of that refund, credit or re-order.
7. Order Equipment.
There will be no equipment
8. Payment, Fees, Title and Taxes.
Payment, fees, and taxes shall be addressed as follows:
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CARRIAGE HOUSE will pay for Marketplace and Pick-Up Orders
fulfilled at time of purchase.
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Merchant agrees, on an ongoing basis, to review and confirm
its transactions, fees and charges on orders and invoices and
via the Merchant Portal, and to promptly communicate to
CARRIAGE HOUSE in writing any claimed inaccuracies, so that
CARRIAGE HOUSE has the prompt opportunity to address and
resolve any issues and so such issues do not persist, which
CARRIAGE HOUSE and Merchant agree is in the best interests of
both parties and their commercial relationship. Merchant
agrees to communicate to CARRIAGE HOUSE any disagreement,
non-conformity or any issue with any transaction, fee, charge
or order within 60 days of the transaction, fee or order.
Merchant shall be deemed to have acquiesced in and ratified,
and to have waived any claim or objection regarding, each
transaction, fee, charge and order if Merchant does not
communicate a written claim or objection to CARRIAGE HOUSE
regarding such transaction, fee, charge or order within such
60-day period.
9. Payment Processing.
Payment processing services for Merchants on the CARRIAGE
HOUSE Platform are provided by Stripe and are subject to
the Stripe Connected Account Agreement, which includes
the Stripe Services Agreement. By agreeing to these Terms,
Merchant agrees to be bound by the Stripe Connected Account
Agreement and the Stripe Services Agreement, as the same may
be modified by Stripe from time to time. As a condition of
CARRIAGE HOUSE enabling payment processing services through
Stripe, Merchant agrees to provide CARRIAGE HOUSE accurate and
complete information about Merchant’s representative and its
business, and Merchant authorizes CARRIAGE HOUSE to share it
and transaction information related to Merchant’s use of the
payment processing services provided by Stripe. Stripe has
been audited by a PCI-certified auditor and is certified to
PCI Service Provider Level 1.
10. Merchant Content and Trademark; Photographs of Menu Items.
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During the Marketplace Term Merchant grants to CARRIAGE
HOUSE a royalty-free, non-exclusive, limited, revocable,
non-transferable, non-sublicensable right and license to use
and display the Merchant Content in the provision of
services to Merchant, including listing Merchant as a
merchant on the CARRIAGE HOUSE Platform, referencing
Merchant as a CARRIAGE HOUSE partner, and to promote
CARRIAGE HOUSE’s products and services. As used herein,
“Merchant Content” includes, without limitation, menus,
photographs (either provided by Merchant or on Merchant’s
website), trademarks, logos and other materials provided by
Merchant to CARRIAGE HOUSE.
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If photographs of Merchant’s menu items are not available or
if they do not meet CARRIAGE HOUSE’s requirements, as
reasonably determined by CARRIAGE HOUSE, then Merchant
consents to CARRIAGE HOUSE (i) engaging a professional
photographer to take photographs of Merchant’s menu items
(ii) enhancing the quality of Merchant’s existing
photographs or (iii) using stock photos of the menu item,
and displaying such photographs on the CARRIAGE HOUSE
Platform as representations of Merchant’s menu items;
provided that Merchant may contact CARRIAGE HOUSE support to
have such photographs removed from the Merchant’s store
listing and, in such event, CARRIAGE HOUSE will comply in a
timely manner.
11. Confidential Information.
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The term “Confidential Information” shall mean any
confidential or proprietary business, technical or financial
information or materials of a party (“Disclosing Party”)
provided to the other party (“Receiving Party”) in
connection with this Agreement, whether orally or in
physical form, and shall include the terms of this
Agreement. Without limiting the foregoing, CARRIAGE HOUSE
Data is the Confidential Information of CARRIAGE HOUSE.
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Confidential Information does not include information that:
(i) was rightfully known to the Receiving Party without
restriction on use or disclosure prior to such information's
being disclosed to the Receiving Party in connection with
this Agreement; (ii) was or becomes public domain other than
by the fault of the Receiving Party; (iii) was or is
received by the Receiving Party on a non-confidential basis
from a third party that, to the Receiving Party's knowledge,
was not at the time under any obligation to maintain its
confidentiality; or (iv) the Receiving Party can demonstrate
by documentary records was independently developed by the
Receiving Party without access to, use of or reference to
any Confidential Information.
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The Receiving Party shall: (i) not access or use
Confidential Information other than as necessary to exercise
its rights or perform its obligations in accordance with
this Agreement; (ii) except subject to its compliance with
Section 11(d), not disclose or permit access to Confidential
Information other than to its or any of its employees,
officers, directors, consultants, agents, independent
contractors, service providers, subcontractors and legal
advisors (“Representatives”) who need to know such
Confidential Information for purposes of the Receiving
Party's exercise of its rights or performance of its
obligations under and in accordance with this Agreement, and
prior to any such disclosure are bound by written
confidentiality and restricted use obligations at least as
protective of the Confidential Information as the terms set
forth in this Section; and (iii) safeguard the Confidential
Information from unauthorized use, access or disclosure
using at least the degree of care it uses to protect its
most/similarly sensitive information and in no event less
than a reasonable degree of care.
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If the Receiving Party is compelled by applicable Law to
disclose any Confidential Information then, to the extent
permitted by applicable Law, the Receiving Party shall
promptly notify the Disclosing Party in writing of such
requirement so that the Disclosing Party can seek a
protective order or other remedy or waive its rights under
Section 11(c) and provide reasonable assistance to the
Disclosing Party, at the Disclosing Party's sole expense, in
opposing or seeking protective limitations on disclosure.
12. Data Privacy and Security.
1. General. Merchant agrees not to access, collect, store,
retain, transfer, use, disclose, or otherwise process in any
manner CARRIAGE HOUSE Data, including without limitation
Personal Information, except as required to perform under this
Agreement. Merchant shall keep CARRIAGE HOUSE Data secure from
unauthorized access and maintain the accuracy and integrity of
CARRIAGE HOUSE Data in Merchant’s custody or control by using
appropriate organizational, physical and technical safeguards.
If Merchant becomes aware of any unauthorized access to
CARRIAGE HOUSE Data, Merchant will immediately notify CARRIAGE
HOUSE, consult and cooperate with investigations and
potentially required notices, and provide any information
reasonably requested by CARRIAGE HOUSE. Merchant agrees to
implement and use security procedures, protocols or access
credentials as reasonably requested by CARRIAGE HOUSE and will
be responsible for damages resulting from Merchant’s failure
to comply. Merchant will not allow any third party to use the
CARRIAGE HOUSE Platform and will be responsible for damages
resulting from sharing Merchant’s login credentials with
unauthorized third parties or otherwise permitting
unauthorized access to Merchant’s account. Merchants may not
allow any third party to copy, modify, rent, lease, sell,
distribute, reverse engineer, or otherwise attempt to gain
access to the source code of the CARRIAGE HOUSE Platform;
damage, destroy or impede the services provided through the
CARRIAGE HOUSE Platform; transmit injurious code; or bypass or
breach any security protection on the CARRIAGE HOUSE Platform.
13. Termination.
Merchant may terminate this Agreement for any reason at any
time upon seven (7) days prior written notice. CARRIAGE HOUSE
may terminate this Agreement or any promotion under this
Agreement for any reason at any time upon written notice.
Email shall suffice for written notice. Neither Merchant nor
CARRIAGE HOUSE will be required to pay any fee in connection
with a termination by either party, or be liable to the other
as a result of termination of this Agreement for any damages,
for the loss of goodwill, prospective profits or anticipated
income, or for any expenditures, investments, leases or
commitments made by either Merchant or CARRIAGE HOUSE.
14. Modifications.
CARRIAGE HOUSE reserves the right, at its sole discretion, to
change, suspend, or discontinue the Platform (including
without limitation, the availability of any feature or
content) at any time. CARRIAGE HOUSE may, at its sole
discretion, remove Merchant Products or Stores from the
CARRIAGE HOUSE Platform if CARRIAGE HOUSE determines that such
Merchant Product or Merchant Store could subject CARRIAGE
HOUSE to undue regulatory risk, health and safety risk, or
other liability. CARRIAGE HOUSE also may revise these Terms
from time to time. We will notify Merchants of material
revisions via a service notification or an email to the email
address associated with your account. By continuing to access
or use the Services after those revisions become effective,
you agree to be bound by the revised Terms.
15. Representations and Warranties; Additional Responsibilities;
Warranty Disclaimer.
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Each party represents and warrants that it has the full
right, power, and authority to enter into and perform its
obligations under this Agreement without breaching any
obligation to any third party.
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Each party represents and warrants that it will comply with
all applicable laws and regulations in its performance of
this Agreement, including without limitation (i) all
applicable data protection and privacy laws, and (ii) all
applicable laws related to third party intellectual property
and other proprietary rights.
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Merchant further represents, warrants and agrees that (i) it
will comply with all applicable laws, rules, standards and
regulations relating to licenses, health (including
Proposition 65 in California), food packaging and accessory
items (including but not limited to food ware, plasticware,
and other disposable restaurant supplies), and food safety
and sanitation, (ii) it has informed CARRIAGE HOUSE of any
required consumer-facing warnings, charges, opt-in
requirements, and instructions associated with Merchant
Product(s) and it will inform CARRIAGE HOUSE of any such
warnings, charges, opt-ins, and instructions that become
required in the future, (iii) it will disclose common
allergens in any Merchant’s menu items listed on the
CARRIAGE HOUSE Platform, (iv) it will only list menu items
or products for sale, product descriptions, and prices on
the CARRIAGE HOUSE Platform, (v) it will not include any
age-restricted products (including but not limited to
alcohol and tobacco) in Merchant’s menus on the CARRIAGE
HOUSE Platform or request delivery of any age-restricted
products through the CARRIAGE HOUSE Platform without first
entering into a separate agreement with CARRIAGE HOUSE
memorializing the promotion, sale and delivery of such
products in compliance with the laws of the applicable state
in which such products will be sold, (vi) it will not
disclose any information related to a Courier’s or a
Customer to a third party (except as required to comply with
law or pursuant to a court order), (vii) it will comply with
the guidelines CARRIAGE HOUSE publishes that govern any
content Merchant posts on the CARRIAGE HOUSE Platform or
Merchant Portal, and (viii) it will comply with its
obligations under Section 4(b)(iii) and 4(b)(iv) of this
Agreement.
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EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, CARRIAGE HOUSE HEREBY EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
REGARDING THE CARRIAGE HOUSE PLATFORM, THE DELIVERY API,
EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY
QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. Merchant acknowledges that the operation
of the Platform may from time to time encounter technical or
other problems and may not necessarily continue
uninterrupted or without technical or other errors and
CARRIAGE HOUSE shall not be responsible to Merchant or
others for any such interruptions, errors, or problems or an
outright discontinuance of the Platform nor for any
guarantee of results with respect to the CARRIAGE HOUSE
services or Platform. Both Parties acknowledge that neither
party has any expectation or has received any assurances for
future business or that any investment by a party will be
recovered or recouped or that such party will obtain any
anticipated amount of profits by virtue of this Agreement.
16. Indemnification.
Each party (the “Indemnifying Party”) will defend, indemnify,
and hold harmless the other party, its subsidiaries and
affiliates, and their respective officers, directors,
shareholders, employees, and agents (the “Indemnified Party”)
from and against any and all claims, damages, losses and
expenses (including reasonable attorney’s fees)
(collectively “Losses”) with respect to any third-party claims
arising out of or related to: (i) any bodily injury (including
death) or damage to tangible or real property to the extent
caused by the Indemnifying Party’s personnel and, in the case
of CARRIAGE HOUSE, Courier’s (or, in the case of Merchant as
the Indemnifying Party, caused by the Merchant Products); (ii)
any claims that the Indemnifying Party breached its
representations, warranties or covenants set forth in Section
11 and Section 12, and Section 15 of this Agreement; (iii) the
violation of the intellectual property of the third party by
the Indemnifying Party’s logos, trademarks, trade names,
menus, documentation, or other intellectual property
(collectively, “Materials”); or (iv) in the case of Merchant
as the Indemnifying Party, Merchant’s failure to distribute
tips as required by applicable law. In addition, Merchant will
defend, indemnify and hold harmless CARRIAGE HOUSE from any
and all Losses related to any violation or alleged violation
of any applicable retail food or other health and safety code,
rule, or regulation related to Merchant Product(s), except to
the extent such Losses were caused directly by the gross
negligence or willful misconduct of CARRIAGE HOUSE. In each
case the Indemnified Party shall provide the Indemnifying
Party with (a) prompt notice of any claims such that the
Indemnifying Party is not prejudiced by any delay of such
notification, (b) the option to assume sole control over
defense and settlement of any claim, and (c) reasonable
assistance in connection with such defense and settlement (at
the Indemnifying Party’s expense). The Indemnified Party may
participate in the defense or settlement of such a claim with
counsel of its own choice and at its own expense; however, the
Indemnifying Party shall not enter into any settlement
agreement that imposes any obligation on the Indemnified Party
without the Indemnified Party’s express prior written consent.
CARRIAGE HOUSE assumes no liability, and shall have no
liability, for any infringement claim pursuant to section
15(4) above based on Merchant’s access to and/or use of the
CARRIAGE HOUSE Platform following notice of such an
infringement claim; any unauthorized modification of the
CARRIAGE HOUSE Platform by Merchant; or Merchant’s combination
of the CARRIAGE HOUSE Platform with third party programs,
services, data, hardware, or other materials which otherwise
would not result in such infringement claim.
17. Limitation of Liability.
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW
OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO CARRIAGE HOUSE BY
MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO
THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE
EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE
LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST
PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR
PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT,
CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
(II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR
IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL
AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT
GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL
NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
18. Insurance.
During the term of the Agreement and for one year after, each
party will maintain adequate insurance in amounts not less
than as required by law or that is common practice in such
party’s business. Upon request, each party will provide the
other with current evidence of coverage. Such insurance shall
not be cancelled or materially reduced without thirty (30)
days prior written notice. In no event shall the limits of any
insurance policy be considered as limiting the liability of a
party under this Agreement.
19. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU
TO ARBITRATE DISPUTES WITH CARRIAGE HOUSE FOOD DELIVERY AND
LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION
19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION
AGREEMENT”.
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Scope of Arbitration Agreement. Any dispute, controversy or
claim arising out of, relating to or in connection with this
contract, including the breach, termination or validity
thereof, shall be finally resolved by binding arbitration,
rather than in court, except that (1) you may assert claims
in small claims court if your claims qualify, so long as the
matter remains in such court and advances only on an
individual (non-class, non-representative) basis; and (2)
you or CARRIAGE HOUSE may seek injunctive relief in court
for infringement or other misuse of intellectual property
rights (such as trademarks, trade dress, domain names, trade
secrets, copyrights, and patents). CARRIAGE HOUSE and
Merchant agree that, because both are business entities that
mutually benefit from streamlined and confidential
resolution, this Arbitration Agreement shall apply to all
disputes arising from or relating to the subject matter of
this Agreement or the relationship between the parties and
their personnel. In that regard, this Arbitration Agreement
shall be binding upon and enforceable by not only the
parties, but also their affiliates, and their owners,
officers, directors, managers and employees. This
Arbitration Agreement shall apply, without limitation, to
all claims that arose or were asserted before the Effective
Date of this Agreement. CASES HAVE BEEN FILED AGAINST
CARRIAGE HOUSE —AND OTHERS MAY BE FILED IN THE FUTURE—THAT
ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS
ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH
CASES. IF YOU AGREE TO ARBITRATION WITH CARRIAGE HOUSE, YOU
ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR
SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS,
COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY
AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST
CARRIAGE HOUSE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF
SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR
OTHER RELIEF BY AN ARBITRATOR.
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Informal Resolution. You and CARRIAGE HOUSE agree that
good-faith informal efforts to resolve disputes often can
result in a prompt, low-cost and mutually beneficial
outcome. You and CARRIAGE HOUSE therefore agree that, before
either you or CARRIAGE HOUSE demands arbitration against the
other, we will personally meet and confer, via telephone or
videoconference, in a good-faith effort to resolve
informally any claim covered by this mutual Arbitration
Agreement. If you are represented by counsel, your counsel
may participate in the conference, but you shall also fully
participate in the conference. The party initiating the
claim must give notice to the other party in writing of its,
his, or her intent to initiate an informal dispute
resolution conference, which shall occur within 60 days
after the other party receives such notice, unless an
extension is mutually agreed upon by the parties. To notify
CARRIAGE HOUSE that you intend to initiate an informal
dispute resolution conference, merchantservices@werechd.com,
providing your name, telephone number associated with your
CARRIAGE HOUSE account (if any), the email address
associated with your CARRIAGE HOUSE account, and a
description of your claim. In the interval between the party
receiving such notice and the informal dispute resolution
conference, the parties shall be free to attempt to resolve
the initiating party’s claims. Engaging in an informal
dispute resolution conference is a requirement that must be
fulfilled before commencing arbitration. The statute of
limitations and any filing fee deadlines shall be tolled
while the parties engage in the informal dispute resolution
process required by this paragraph.
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Arbitration Rules and Forum. This Arbitration Agreement is
governed by the Federal Arbitration Act in all respects. If
for whatever reason the rules and procedures of the Federal
Arbitration Act cannot apply, the state law governing
arbitration agreements in the state in which you reside
shall apply. Before a party may begin an arbitration
proceeding, that party must send notice of an intent to
initiate arbitration and certifying completion of the
informal dispute resolution conference pursuant to paragraph
19(2). If this notice is being sent to CARRIAGE HOUSE, it
must be sent by email to the counsel who represented
CARRIAGE HOUSE in the informal dispute resolution process,
or if there was no such counsel then by mail to General
Counsel, 2000 East 12ave #75271 Tampa Fl 33675. The
arbitration will be conducted by JAMS under its rules and
pursuant to the terms of this Agreement, but in the event of
a conflict between the two, the provisions of this
Arbitration Agreement shall supersede any and all
conflicting arbitration administrator’s rules or procedures.
Arbitration demands filed with JAMS must include (1) the
name, telephone number, mailing address, and e-mail address
of the party seeking arbitration; (2) a statement of the
legal claims being asserted and the factual bases of those
claims; (3) a description of the remedy sought and an
accurate, good-faith calculation of the amount in
controversy, enumerated in United States Dollars (any
request for injunctive relief or attorneys’ fees shall not
count toward the calculation of the amount in controversy
unless such injunctive relief seeks the payment of money);
and (4) the signature of the party seeking arbitration.
Disputes involving claims and counterclaims under $250,000,
not inclusive of attorneys’ fees and interest, shall be
subject to JAMS’s most current version of the Streamlined
Arbitration Rules and procedures available
at http://www.jamsadr.com/rules-streamlined-arbitration/;
all other claims shall be subject to JAMS’s most current
version of the Comprehensive Arbitration Rules and
Procedures, available
at http://www.jamsadr.com/rules-comprehensive-arbitration/.
JAMS’s rules are also available at www.jamsadr.com (under
the Rules/Clauses tab) or by calling JAMS at 800-352-5267.
Payment of all filing, administration, and arbitration fees
will be governed by JAMS’s rules. If JAMS is not available
to arbitrate, the parties will select an alternative
arbitral forum. You may choose to have the arbitration
conducted by telephone, video conference, or in person in
the country where you live or at another mutually agreed
location.
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Arbitrator Powers. The arbitrator, and not any federal,
state, or local court or agency, shall have exclusive
authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation
of this Arbitration Agreement including, but not limited to
any claim that all or any part of this Arbitration Agreement
is void or voidable. All disputes regarding the payment of
arbitrator or arbitration-organization fees including the
timing of such payments and remedies for nonpayment, shall
be determined exclusively by an arbitrator, and not by any
court. The arbitration will decide the rights and
liabilities, if any, of you and CARRIAGE HOUSE. The
arbitration proceeding will not be consolidated with any
other matters or joined with any other proceedings or
parties. The arbitrator will have the authority to grant
motions dispositive of all or part of any claim or dispute.
The arbitrator will have the authority to award monetary
damages and to grant any non-monetary remedy or relief
available to an individual under applicable law, the
arbitral forum’s rules, and this Agreement (including this
Arbitration Agreement). The arbitrator will issue a written
statement of decision describing the essential findings and
conclusions on which any award (or decision not to render an
award) is based, including the calculation of any damages
awarded. The arbitrator shall follow the applicable law. The
arbitrator has the same authority to award relief on an
individual basis that a judge in a court of law would have.
The arbitrator’s decision is final and binding on you and
CARRIAGE HOUSE.
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Waiver of Jury Trial. YOU AND CARRIAGE HOUSE WAIVE ANY
CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND
RECEIVE A JUDGE OR JURY TRIAL. You and CARRIAGE HOUSE are
instead electing to have claims and disputes resolved by
arbitration, except as specified in Section 19(1) above.
There is no judge or jury in arbitration, and court review
of an arbitration award is limited.
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Waiver of Class or Consolidated Actions; Severability. YOU
AND CARRIAGE HOUSE AGREE TO WAIVE ANY RIGHT TO RESOLVE
CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A
CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND
DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST
BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS
BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED
OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER
CUSTOMER OR USER. If, however, this waiver of class or
consolidated actions is deemed invalid or unenforceable with
respect to a particular claim or dispute, neither you nor
CARRIAGE HOUSE is entitled to arbitration of such claim or
dispute. Instead, all such claims and disputes will then be
resolved in a court as set forth in Section 20, and all
other provisions of this Section 19 (Dispute Resolution)
shall remain in force. If any provision of this Section 19
is adjudged to be void or otherwise unenforceable, in whole
or in part, the void or unenforceable provision shall be
severed and such adjudication shall not affect the validity
of the remainder of this Section 19. Nothing in this
provision shall prevent you or CARRIAGE HOUSE from
participating in a class-wide settlement of claims.
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Opt Out. CARRIAGE HOUSE’s updates to these Terms of Service
do not provide a new opportunity to opt out of the
Arbitration Agreement if you had previously agreed to a
version of CARRIAGE HOUSE’s Terms of Service and did not
validly opt out of arbitration. CARRIAGE HOUSE will continue
to honor the valid opt outs of merchants who validly opted
out of the Arbitration Agreement in a prior version of the
Terms of Service. If you create a CARRIAGE HOUSE account for
the first time on or after December 9, 2020, you may opt out
of this Arbitration Agreement. If you do so, neither you nor
CARRIAGE HOUSE can force the other to arbitrate as a result
of this Agreement. To opt out, you must notify CARRIAGE
HOUSE in writing of your intention to opt out by sending a
letter, by First Class Mail, to CARRIAGE HOUSE, Inc., 2000
East 12ave #75271 Tampa Fl 33675. Any attempt to opt out by
email will be ineffective. To be effective, your opt-out
notice must be postmarked no later than 30 days after your
first order on the Platform. Your notice must include your
name and address, your CARRIAGE HOUSE username (if any), the
email address you used to set up your CARRIAGE HOUSE account
(if you have one), and a CLEAR statement that you want to
opt out of this Arbitration Agreement. The letter may opt
out, at most, only one merchant, and letters that purport to
opt out multiple merchants will not be effective as to any.
No merchant (or his or her agent or representative) may
effectuate an opt out on behalf of other persons. If you opt
out of this Arbitration Agreement, all other parts of this
Agreement will continue to apply to you. Opting out of this
Arbitration Agreement has no effect on any other arbitration
agreements that you may have entered into with us or may
enter into in the future with us.
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Survival. This Arbitration Agreement will survive any
termination of your relationship with CARRIAGE HOUSE.
Modification. Notwithstanding any provision in the Agreement
to the contrary, we agree that if CARRIAGE HOUSE makes any
future material change to this Arbitration Agreement, it
will not apply to any individual claim(s) that you had
already provided notice of to the Company.
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Modification. Notwithstanding any provision in the Agreement
to the contrary, we agree that if CARRIAGE HOUSE makes any
future material change to this Arbitration Agreement, it
will not apply to any individual claim(s) that you had
already provided notice of to the Company.
20. Litigation Class Action Waiver.
To the extent allowed by applicable law, separate and apart
from the Mutual Arbitration Provision found in Section 19,
Merchant agrees that any proceeding to litigate in court any
dispute arising out of or relating to this Agreement, whether
because Merchant opted out of the Arbitration Provision or any
other reason, will be conducted solely on an individual basis,
and Merchant agrees not to seek to have any controversy, claim
or dispute heard as a class action, a representative action, a
collective action, a private attorney-general action, or in
any proceeding in which Merchant acts or proposes to act in a
representative capacity (“Litigation Class Action Waiver”).
Merchant further agrees that no proceeding will be joined,
consolidated, or combined with another proceeding, without the
prior written consent of all parties to any such proceeding.
If a court of competent jurisdiction determines that all or
part of this Litigation Class Action Waiver is unenforceable,
unconscionable, void or voidable, the remainder of this
Agreement shall remain in full force and effect.
21. Franchisees.
Franchisees operating a branded restaurant or store concept
licensed by Merchant may participate in the Program pursuant
to the terms and conditions of this Agreement provided that
the individual franchisee: (1) is in compliance with its
franchise agreement; and (2) enters into an agreement in
substantially the same form as the Supplemental Agreement
provided by CARRIAGE HOUSE to the Franchisee. Unless the
parties mutually agree otherwise in writing, all Merchant
owned branded restaurant(s) and store concept(s) shall be
included and subject to the terms hereunder.
22. Partner Code of Conduct.
Merchant agrees to comply with the Partner Code of
Conduct which may be updated by CARRIAGE HOUSE from time to
time.
23. Communications from CARRIAGE HOUSE.
Merchant agrees to accept and receive communications from
CARRIAGE HOUSE or Courier’s, including via email, text
message, calls, and push notifications to the cellular
telephone number Merchant provides to CARRIAGE HOUSE. Merchant
acknowledges that Merchant may receive communications
generated by automatic telephone dialing systems and/or which
will deliver prerecorded messages sent by or on behalf of
CARRIAGE HOUSE, its affiliated companies and/or Courier’s.
Merchant may opt out of such communications in Merchant’s
Account Settings or by replying “STOP” from the mobile device
receiving such messages.
24. Attorneys’ Fees.
In any legal action to enforce the terms of this Agreement,
the prevailing party in such action shall be entitled to
recover its reasonable attorneys’ fees and costs from the
other party.