Habitat Restaurant Terms
Last updated: 14. July 2020
These Habitat Restaurant Terms (“Terms”) apply to the service relationship between Habitat Logistics Inc. and its subsidiaries and affiliates (collectively, “Habitat”) and the restaurant (“Restaurant”) signing the Habitat onboarding form, as amended from time to time (the “Onboarding Form”), which is incorporated, as amended, into these Terms. These Terms and the Onboarding Form will be together referred to as the “Agreement.” The Agreement is entered into as of the date set forth on the Onboarding Form (“Effective Date”). Capitalized terms not defined herein will have the meanings set forth in the Onboarding Form. THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION; MANDATORY ARBITRATION; CLASS/COLLECTIVE ACTION WAIVER” AFFECTS RESTAURANT’S LEGAL RIGHTS. PLEASE READ IT.
1. Rights and Obligations of Habitat
a. Habitat will provide delivery as a service (“DaaS”) services and other services via Habitat’s proprietary delivery logistics and billing system and its associated web-based and mobile properties and apps (collectively, the “Platform”). If selected on the Onboarding Form, and subject to the terms of the Agreement, Habitat will arrange for the Restaurant to receive other products and services (collectively, the “Third Party Services,” and collectively with the Platform, DaaS and other services provided hereunder, the “Services” and each a “Service”) all of which are sold, designed, created, provided and operated by independent third parties (collectively, the “Habitat Partners”). Habitat may receive a fee or other compensation from a Habitat Partner in consideration of Restaurant’s use of any Third Party Service.
b. Habitat owns all right, title, and interest in and to the Platform and any content supplied by Habitat, and will have sole editorial control over the Platform.
2. Third Party Services
a. Habitat and Third Party Services. Habitat does not provide any of the Third Party Services and has no ownership interest in any of the Habitat Partners.
b. Habitat not Liable for Third Party Services. Habitat may delete, cease working with, cease supporting, change or add Habitat Partners without Restaurant’s consent or notice to the Restaurant. Habitat is not responsible if a Habitat Partner makes any mistakes or if there is a delay, error or malfunction with respect to any aspect of the Third Party Services or if the Third Party Services fail to deliver or yield any particular result, capability or functionality. Restaurant uses each Third Party Service on an “AS IS WHERE IS” basis with all faults. Habitat makes no representations or warranties, and expressly disclaims all express or implied representations and warranties, regarding all Third Party Services including their accuracy, completion, up time, security, controls, fitness for a particular purpose and merchantability of such services. Habitat does not guarantee any minimum number of orders, revenue, functionality or capability arising from any or all of the Third Party Services. Habitat has no obligation to upgrade, update, patch, fix or maintain any Third Party Services.
c. Restaurant Content. In order for Habitat or the Habitat Partners to provide any Services hereunder, Restaurant must provide all logos, contact information, menu and other content required by Habitat or the Habitat Partners. For the Term (as defined below) of the Agreement and for six (6) months thereafter, Restaurant hereby grants to Habitat a royalty-free, worldwide, sub-licenseable, 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 Habitat herein. Habitat may remove Restaurant Content on the Platform at any time if it believes, in its sole discretion, that such Restaurant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity, security or functionality of the Platform.
3. Payment Terms In consideration for Restaurant’s access to the Platform and Habitat’s performance of DAAS, Restaurant will pay Habitat the fees set forth in the Onboarding Form (collectively, the “Fees”). If Habitat receives any fee or commission from a Habitat Partner, either Restaurant shall pay such fee or commission to Habitat or the Habitat Partner will pay such fee or commission to Habitat under a separate agreement between Habitat and such Habitat Partner. If Restaurant owes any fees or other compensation to any Habitat Partner in exchange for its receipt of a Third Party Service, Restaurant shall pay such fees or other compensation to such Habitat Partner under its agreement with such Third Party Partner.
4. Term and Termination
a. Term. The Agreement shall remain in effect for one year from the effective or “Live” date set forth on the Onboarding Form (the “Initial Term”). Unless terminated as set forth in Section 4(b), this Agreement shall automatically renew for successive periods of one year (each a “Renewal Term,” collectively with the Initial Term, the “Term”) unless one party delivers written or email notice to the other party of its intent to terminate this Agreement at least twenty (20) days’ prior to the end of the Initial Term or the then current Renewal Term.
b. Termination for Cause/Termination of Third Party Service. With respect to Habitat and Restaurant’s obligations hereunder, either party may terminate this Agreement or any individual Service hereunder if the other party materially breaches any of its obligations hereunder and fails to cure such breach within ten (10) days of its receipt of a written notice sent by the non-breaching party generally describing the breach (the “Breach Notice”) provided however that there shall be no cure period with respect to a payment breach by Restaurant. Restaurant’s rights and obligations to terminate any Third Party Services shall be subject to Restaurant’s agreement or contract with the Habitat Partner providing such Third Party Service. Restaurant shall communicate any actual or alleged breach by a Habitat Partner or its desire to terminate a Third Party Service to such Habitat Partner directly, and not to Habitat. Restaurant shall not request or rely upon Habitat to communicate any information regarding any actual or alleged breach to a Habitat Partner or termination of a Third Party Service to a Habitat Partner.
c. Partial or Full Termination. In the Breach Notice, the non-breaching party shall declare whether it intends to terminate the entire Agreement or one or more Services provided by Habitat hereunder, and where the non-breaching party elects to terminate just those Service(s) that are the subject of the breach(es) described in the Breach Notice, this Agreement shall remain in full force and effect with respect to all other Services. If the non-breaching party fails to so declare in the Breach Notice, the Breach Notice shall be interpreted as termination of just those Services provided hereunder which are the subject of the breach(es) described in the Breach Notice and this Agreement shall remain in full force and effect with respect to those Services that are not the subject of the breach(es) described in the Breach Notice.
d. Effect of Termination. Upon the termination of this Agreement in its entirety or with respect to one or more services:
(i) Habitat or the applicable Habitat Partner shall no longer provide the terminated Services;
(ii) Restaurant shall immediately cease using any hardware, software, website, internet based service or portal related to any of the terminated Services;
(iii) Restaurant shall, at its cost, and within ten (10) days of the termination of this Agreement or the applicable terminated Service return (the “Return Period”) any hardware or related equipment and accessories related to the terminated Services to Habitat at an address designated by Habitat. If Habitat does not receive such hardware or related equipment and accessories within the Return Period or in the same condition in which such hardware or related equipment and accessories was provided to Restaurant, ordinary wear and tear excepted, Restaurant shall pay Habitat or the applicable Habitat Partner within ten (10) days after the expiration of the Return Period an amount equal to the replacement value of such hardware or related equipment and accessories as decided by Habitat or the applicable Habitat Partner, in its sole reasonable discretion;
(iv) Restaurant shall cease using any Customer Data (as defined below) and shall delete the Customer Data, and all copies thereof, from its internal systems and files; and
(v) any obligation of Restaurant to pay Habitat or any Habitat Partner for Services prior to the termination of this Agreement or any such Service shall survive the termination or expiration of this Agreement.
5. Ownership of Customer Data; Confidentiality.
a. Habitat Owns Customer Data. With respect to (i) any activity of a customer or user on a website provided by Habitat or a Habitat Partner (if Restaurant selects such Service on the Onboarding Form), including the customer’s placing of an order through such a website or (ii) any order delivered to the customer via DAAS provided by Habitat, Habitat, not Restaurant, shall own all right, title and interest in and to all Customer Data, and with respect to subsection (ii), only to the extent that Restaurant, prior to such DAAS service, is not a party to a written contract with a third party under which such third party owns such Customer Data.
b. Confidentiality. Restaurant shall maintain the confidentiality of all non-public information, including without limitation, the Customer Data, that it acquires or has access to in the course of receiving the benefits of this Agreement including via or in connection with DAAS, the Platform or the Third Party Products, as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Restaurant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, the Confidential Information. Restaurant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by Habitat, Restaurant will deliver to Habitat (or destroy at Habitat’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form. Restaurant will use Confidential Information for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Restaurant’s obligations hereunder. Restaurant (and any other persons to whom Restaurant provides any Confidential Information only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current best practices in Restaurant’s industry in order to protect, handle, and secure Confidential Information. Restaurant is responsible for any breach of this provision by any third-party service provider (excluding a Habitat Partner) engaged by Restaurant.
c. Customer Data. “Customer Data” means (i) any and all information about customers generated, used or collected by Habitat or Restaurant in connection with DAAS, the Platform or the Third Party Products, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s) and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” “personally identifiable information” or “personal information” of a Restaurant customer under applicable law. Restaurant acknowledges that all Customer Data is the sole and exclusive property of Habitat. Restaurant will notify Habitat in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with Habitat concerning any remedial measures and any disclosures to affected parties, in each case as requested by Habitat or required under applicable law.
6. Representations and Warranties. Throughout the Term, Restaurant represents, warrants and covenants to Habitat and each Habitat Partner: (i) 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; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Restaurant Content will not infringe or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or 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); (v) it will provide accurate tax rates and calculations to Habitat; and (vi) 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, 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 Habitat with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify Habitat if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time during the Term.
7. Indemnification and Defense. Restaurant will defend and indemnify and hold Habitat and the Habitat Partners (including their respective investors, directors, employees, officers and agents) harmless from any and all claims, actions, proceedings, liabilities, judgments, damages, expenses, fines, penalties, demands and costs (including reasonable attorney’s fees and court courts) arising out of (a) Restaurant’s or any of its employees’, contractors’, representatives’ or agents’ (i) acts or omissions, (ii) contracts, arrangements or agreements with any third party, including any Third Party; (iii) provision, calculation, reporting (or failure to do so) or remission (or failure to do so) of any assessments or taxes; (b) any claim that any aspect of the Restaurant Content infringes upon the intellectual property of a third party, (c) any claim under the Fair Labor Standards Act or any state law corollary including without limitation, any minimum wage, tipping or overtime claims made by or on behalf of Restaurant or any of its employees, agents, contractors or representatives, (v) any actual or alleged violation of law by or on behalf of Restaurant or any of its employees, agents, contractors or representatives, or (vi) any actual or alleged breach of this Agreement by or on behalf of Restaurant or any of its employees, agents, contractors or representatives. Restaurant’s defense and indemnity obligations hereunder shall survive the termination of this Agreement or the termination of any Service(s) related to the claim that is the subject of indemnification and defense. Habitat or the Habitat Partner will provide prompt notice to Restaurant of any potential claim subject to indemnification and defense hereunder. Restaurant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Habitat and any Habitat Partner who Restaurant is defending or indemnifying, provided that Habitat or a Habitat Partner may use counsel of its choice at its own expense. Restaurant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of Habitat and any Habitat Partner who Restaurant is defending or indemnifying, which will not be unreasonably withheld. Habitat and any Habitat Partner who Restaurant is defending or indemnifying will reasonably cooperate with Restaurant in the defense of the claim, at Restaurant’s expense.
8. Dispute Resolution; Mandatory Arbitration; Class/Collective Action Waiver. RESTAURANT AND HABITAT AGREE THAT ANY AND 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 AT WWW.ADR.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 PHILADELPHIA, PA 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.
9.LIMITATION OF LIABILITY/LIMITATION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, HABITAT AND ALL HABITAT PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE DAAS, THE PLATFORM, THE THIRD PARTY PRODUCTS AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE DAAS, THE PLATFORM AND THE THIRD PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER HABITAT NOR ANY HABITAT PARTNER WILL BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM THE FAILURE, ERROR, DELAY OR UNAVAILABILITY OF ANY SERVICE, INCLUDING WITHOUT LIMITATION,THE PLATFORM, THE DAAS, ANY THIRD PARTY SERVICE OR PRODUCT OR RESTAURANT CONTENT. HABITAT 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 OR ANY SERVICE, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF HABITAT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. HABITAT’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF FEES PAID TO HABITAT FOR DAAS BY RESTAURANT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
10. Miscellaneous Terms Habitat and Habitat Partners on the one hand, and Restaurant on the other hand, are independent contractors, and nothing herein may be construed to create any agency, partnership or joint venture between or among them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party except the Habitat Partners under Sections 2(c), 3, 4(d), 5 and 7 through 10 inclusive. Notwithstanding anything to the contrary herein, in no event shall Restaurant be deemed to be a third party beneficiary under any agreement or arrangement between Habitat and a Habitat Partner. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between these Terms of Service and an Onboarding Form, the terms of the Onboarding Form shall control. Habitat hereby reserves the right to update and modify these Terms at any time at its sole discretion. Restaurant agrees that Habitat’s publishing of the revised Terms on its website and Restaurant’s continued use of any Services shall constitute sufficient notice to Restaurant of the updated Terms. It is Restaurant’s responsibility to review these Terms periodically to ensure its knowledge of any changes and Restaurant’s compliance with these Terms. The Agreement may not be amended by Restaurant unless such amendment is signed by an authorized representative of Habitat. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. Except for Restaurant’s obligation to pay for any Service hereunder, a party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Restaurant may not assign the Agreement without the prior written consent of Habitat, and if permission is secured, the assignor will provide Habitat with advance written notice so that payment can be directed appropriately. Any assignment by Restaurant in violation of this provision will be null and void. Habitat may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. Sections 1, 2, 4(d), 5, 7, 8, 9, 10 and 11 and any other terms required for the full interpretation of the Agreement following termination of this Agreement or one or more particular Services will survive any termination of the Agreement.
11. Notices. All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) 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 provided on the Onboarding Form under “Restaurant Address” or such other address provided by Restaurant and accepted by Habitat in writing. All notices to Habitat will be sent to the below, unless otherwise provided by Habitat:
Habitat Logistics Inc.
309 Cherry Street
Philadelphia, PA 19106
Attn: Legal Notices
Rev. 11/19. Copyright Habitat Logistics Inc. All rights reserved.