RESTAURANT DELIVERY PROVIDER AGREEMENT
This Restaurant Delivery Provider Agreement (the "Agreement") governs your access to, and use of, certain services provided by Data Dreamers, L.L.C.("Data Dreamers," "we," "us," or "our"). We provide services to restaurant delivery providers ("Restaurant Delivery Provider", "you" or "your") that help to manage the oftentimes complex communications between diners and restaurants, as well as the diners location where orders are ultimately delivered. Our services enable diners to browse menu items posted by you, or by your restaurant partners, and submit orders through a branded online site. You will receive a notification for each order placed by a diner and our proprietary methods will process the diner's payment and guide you in crafting an optimal delivery route, one that is designed to ensure you make the most deliveries in the least amount of time. Throughout this Agreement we will collectively refer to a diner's ability to submit orders, the consolidation of all those orders in our system, payment processing and delivery route optimization as the "Services."
In order to use our Services you must complete a customer profile, that requires certain pieces of information. We use that information to create a tailored web presence where your diners can submit orders online (the "Diner Site"). For an additional fee, you may elect for us to use the same information used for the Diner Site and tailor a version of our mobile application (the "Diner App") that will be posted in both the Apple Web Store and Google Play for your diners to download. Diners can then use either the Diner Site or the Diner App - whichever is most convenient to them - to submit food order delivery requests directly to you. You hereby grant Data Dreamers a non-exclusive, royalty free, fully paid right to use, reproduce, publish, perform and display the public profile information that you submit when you complete your customer profile on the Diner Site and, if elected by you, also on the Diner App.
In addition to the Diner Site and the Diner App, Data Dreamers has developed the Wisdom GPS mobile software application (the "Wisdom App"). The Wisdom App, the Diner Site and the Diner App comprise the Data Dreamers platform (the "Platform"). For as long as your registration for our Services remains in effect (including payment of all fees required by this Agreement), we will use the Platform to deliver the Services to you.
THIS AGREEMENT FORMS A BINDING CONTRACT BETWEEN YOU AND DATA DREAMERS. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN YOU MAY NOT USE THE PLATFORM.
You agree to fulfill each Delivery Order according to your own Delivery Terms. As a condition of using our Platform, you acknowledge that all Delivery Orders are requests for services to you, not Data Dreamers, and that you are responsible for the Delivery Order to each Diner, including without limitation, (i) the accuracy of a Delivery Order; (ii) the timeliness of a Delivery Order; (iii) damage to personal property related to a Delivery Order, and (iv) compliance with the Delivery Terms. You agree to hold Data Dreamers harmless in connection with any Delivery Order.
2. Limited Permission to Use the Platform. Subject to the terms and conditions of this Agreement, Data Dreamers hereby grants to you limited permission (i) to install and use the Wisdom App on a compatible mobile computing device (e.g., an iPhone) that you own or control (your "Mobile Device"), and (ii) to access and use the Diner Site through compatible browser software, in all cases solely for purposes of receiving the Services and performing your ordinary, lawful business activities as a Restaurant Delivery Provider in accordance with this Agreement.
In the event you elect to provide your Diners with the Diner App and for so long as you continue to pay the required fees, Data Dreamers agrees to make the Diner App available for download by Diners and agrees to grant to Diners limited permission to use the Diner App on a Mobile Device to place Delivery Orders.
3. Usage Restrictions. You may not copy, modify, download or transfer any component of the Platform, in whole or in part. You may not reverse engineer, disassemble, decompile, or translate any portion of the Platform, attempt to derive the source code of any software component of the Platform, create any derivative work from the Platform, or authorize any third party to do any of the foregoing. Any attempt to transfer any of the rights, duties or obligations under this Agreement is void. You may not rent, lease, loan, resell for profit, or distribute the Platform, or any part thereof, nor may you provide access to the Platform over the Internet or any network for use by any third parties. You may not remove or alter any proprietary notice or legend regarding Data Dreamer's proprietary rights in the Platform. You may not use the Platform except in accordance with applicable laws and regulations.
5. Payments. You will be required to submit a one-time-non-refundable set up fee and thereafter for each Delivery Order processed using the Platform, you agree to pay the applicable fee according to our then-current published fee table (the "Fee Table"). Data Dreamers may in its sole and absolute discretion change this Fee Table, at any time. A Delivery Order is considered to be "processed" when it has been submitted by a Diner using either the Diner Site or Diner App, and the Delivery Order then appears in the Wisdom App. You will not be charged for Delivery Orders that are processed and then canceled by the Diner, provided that we, in our sole discretion, do not find the number of cancelled orders to be excessive. As provided in the Fee Table, you are required to pay the fee for at least two processed Delivery Orders per day in the applicable month (the "Minimum Monthly Fee Commitment"). The Minimum Monthly Fee Commitment may be waived by us at our sole discretion.
At all times during the Term, you agree to maintain a valid method of payment ("Payment Method") in your customer profile. Data Dreamers will charge your fees due based on the then-current Fee Table, for the previous month between the first (1st) and fifteenth (15th) day of the following month. You will receive a receipt recognizing each payment via email. In the event your Payment Method fails, Data Dreamers may, at its sole discretion, charge interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the date your Payment Method fails until paid.
You shall be solely responsible for and agree to pay, indemnify, and hold Data Dreamers harmless from any and all sales, use, communications, excise, or similar tax or duty, and any other tax not based on Data Dreamers' net income, including penalties and interest and any associated professional fees, and all other imposts levied upon or chargeable with respect to the use, license, sale, or delivery of the Services or other deliverables in respect of this Agreement, and any costs associated with the collection or withholding of any of the foregoing items.
6. Ownership of Intellectual Property Rights. This Agreement grants you only limited permission to access and use the Platform. As between you and Data Dreamers, you acknowledge that Data Dreamers and its licensors own and retain all proprietary rights in the Platform (including the Diner Site, the Diner App, the Wisdom App, and all upgrades to any of the foregoing). The Platform includes copyrighted material, trademarks, and other proprietary information ("Intellectual Property") of Data Dreamers and its licensors. There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved. For the avoidance of doubt, you agree that your permissions to use the Diner Site and the Diner App are limited to the license granted in Section 2. You agree that any questions, comments, or suggestions (collectively, "Feedback") that you send to Data Dreamers shall become the sole property of Data Dreamers. You further agree that Data Dreamers shall be free to use and exploit in any manner any ideas, concepts, know-how, methods, or techniques contained in such Feedback for any purpose without your consent and without payment of any consideration to you, and you hereby assign all rights, title and interest in such Feedback to Data Dreamers.
7. Third Party Trademarks and Content; Copyright Agent. You acknowledge that the Platform may display content, like available menu items, containing text, photos, graphical material, trademarks, and other information and media provided to us by third parties (collectively, "Third-Party Content"). YOU ACKNOWLEDGE AND AGREE THAT DATA DREAMERS IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, CURRENCY, LEGALITY, SUITABILITY OR QUALITY OF THIRD-PARTY CONTENT AND SHALL HAVE NO LIABILITY TO YOU IN CONNECTION WITH THIRD-PARTY CONTENT OR IN CONNECTION WITH ANY PRODUCT, SERVICE, REBATE OFFER OR OTHER OFFERING DESCRIBED THEREIN. You may not reproduce, publicly perform, publicly display, modify, distribute or create derivative works of any Third-Party Content, nor use any Third-Party Content except as provided by the standard functionality offered within the Platform.
Data Dreamers respects the intellectual property rights of third parties. In the event that you have a good faith belief that your copyrights have been violated by the use or display of certain content within the Platform, it is our policy to investigate and promptly undertake efforts to resolve the issue. To notify us regarding an alleged copyright violation, you must provide us with all of the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (ii) identification of the copyrighted work(s) claimed to have been infringed, and information reasonably sufficient to permit us to locate the material; (iii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (iv) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Data Dreamer's designated agent at:
Data Dreamers, L.L.C.
C/O Fullsteam Operations LLC
Attn: Ed Graf
197 East University Drive
Auburn, AL 36832
9. Disclaimer of Warranties. THE PLATFORM IS PROVIDED BY DATA DREAMERS ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATA DREAMERS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, DATA ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT DATA DREAMERS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE PLATFORM WILL BE ERROR-FREE, THAT ERRORS IN THE PLATFORM WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION DISPLAYED WITHIN THE PLATFORM OR ACCESSED THROUGH THE PLATFORM WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, OR THAT THE PLATFORM OR ANY MATERIALS AVAILABLE FOR DOWNLOAD VIA THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you.
10. Limitation of Liability. IN NO EVENT SHALL DATA DREAMERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY CLAIMS IN CONNECTION WITH THE PLATFORM AND ANY DELIVERY ORDER OR DELIVERY TERMS, AND INCLUDING ANY CLAIMS FOR LOSS OF PROFITS, LOST OR CORRUPTED DATA, OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER DATA DREAMERS WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CLAIM OR THE THEORY OF LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL DATA DREAMERS BE LIABLE TO YOU, IN AGGREGATE FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT, FOR MONETARY DAMAGES IN EXCESS OF SUMS PAID BY YOU FOR THE SERVICES DURING THE CALENDAR MONTH PRECEDING THE EVENT GIVING RISE TO LIABILITY. YOU UNDERSTAND THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS OF THIS AGREEMENT, AND WITHOUT THIS LIMITATION OF LIABILITY DATA DREAMERS WOULD BE UNWILLING TO GRANT YOU THE LICENSE AND RIGHTS GRANTED UNDER THIS AGREEMENT.
11. Contract Parties. You acknowledge and agree that this Agreement is a contract directly between you and Data Dreamers. If your Mobile Device is an Apple product, you acknowledge that Apple is not a party to this Agreement and shall have no obligations or liabilities to you or to any third party in connection with this Agreement. You agree, however, that Apple is an intended third-party beneficiary of this Agreement and shall have the authority to enforce this Agreement against you, including, without limitation, the disclaimers and limitations of liability set forth in this Agreement.
12. Your Representations and Warranties. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. Termination. The Agreement will be in effect as of the date that you complete your customer profile and continue until terminated (the period during which this Agreement remains in effect, the "Term"). You may terminate this Agreement at any time by electing termination from the available functionality within the administrative features of the Diner Site, provided that, if you have purchased a subscription to the Services for a specific period of time (e.g., a one-year subscription), the Agreement will remain in effect for that period, and upon expiration, the Term shall automatically renew and extend for additional periods equal to the initial Term, unless you provide written notice of your intention not to renew at least thirty (30) prior to the expiration of the applicable term. We may terminate this Agreement upon written notice identifying your breach of any material term, provided that you fail to cure your material breach within fifteen (15) calendar days, or we may terminate this Agreement at any time upon written notice if we discontinue the Services. Data Dreamers shall immediately stop providing you the Services upon any termination or expiration of this Agreement. In the event of any termination, all amounts you owe Data Dreamers, including any Minimum Monthly Fee Commitments, shall become immediately due and payable.
15. Government End Users. The Platform is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire access to the Platform with only those rights set forth herein.
16. Informal Dispute Resolution; Applicable Law and Jurisdiction. You agree that, prior to instituting any suit or action in any court, you will exercise reasonable efforts to resolve any disputes arising in connection with this Agreement through informal, good faith discussions with us, and you will first permit us a reasonable opportunity to resolve any such disputes before resort to any court proceedings. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.
17. General Provisions. This Agreement is between you and Data Dreamers, and you may not transfer, assign or delegate this Agreement to anyone without the express written permission of Data Dreamers. Any attempt by you to assign, transfer or delegate this Agreement without the express written permission of Data Dreamers shall be null and void. You acknowledge that Data Dreamers will have the right hereunder to seek an injunction if necessary to stop or prevent a breach of your obligations hereunder. The paragraph headings in this Agreement are included only to help make the Agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between Data Dreamers and you with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements regarding this subject matter. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
Contact Information. If you have any questions about this Agreement and/or regarding the Platform, please contact Data Dreamers at:
Hours: 8:30 to 5:30 ET
The Restaurant Delivery Service ("RDS") named on the website from which you accessed these terms (the "RDS," "we," "us," or "our"), provides restaurant delivery services to you (the "Services"). RDS uses the website (the "Site") to deliver the Services. We may also make a mobile application available that you may use to access the Services (the "App" and together with the Site, the "Platform"). These Terms of Delivery Service (the "Agreement) govern your use of the Platform and your receipt of the Services.
We have partnered with Data Dreamers, L.L.C. ("Data Dreamers") to assist us in creating and managing the Platform. Data Dreamers provides us a service of distributing and maintaining the Platform on our behalf. You acknowledge however that Data Dreamers is not a party to this Agreement and has no liability in connection with the provision of Services to you. ACCORDINGLY IN NO EVENT SHALL DATA DREAMERS HAVE ANY LIABILITY IN CONNECTION WITH YOUR RIGHTS UNDER THIS AGREEMENT, NOR IN CONNECTION WITH THE SERVICES THAT WE PROVIDE TO YOU.
By installing the App or accessing the Site, you are agreeing to the terms of this Agreement between you and RDS. By using the Platform you agree to adhere to all the guidelines, policies, terms and conditions described in this Agreement. This Agreement is legally binding. If you do not agree to these guidelines, policies, terms and conditions then you must not use the Platform.
1. Permission to Use the Site. Subject to your acceptance and continue adherence to the terms and conditions of this Agreement, you are hereby granted a limited permission (i) to access and use the Site through compatible browser software, and (ii) to use, perform, and display the App on a compatible mobile computing device (e.g., an iPhone) that you own or control (your "Mobile Device"), in all cases solely to submit Delivery Orders in accordance with this Agreement.
2. Usage Restrictions. You may not use, copy, modify or transfer the Platform or any component of the Platform, in whole or in part. You may not reverse engineer, disassemble, decompile, or translate the Platform, attempt to derive the source code of any software comprising the Platform, create any derivative work from the Platform, or authorize any third party to do any of the foregoing. Any attempt to transfer any of the rights, duties or obligations under this Agreement is void. You may not rent, lease, loan, resell for profit, or distribute the Platform, or any part thereof, nor may you provide access to the Platform for third parties in the nature of a service bureau or application services provider. You may not remove or alter any proprietary notice or legend regarding Data Dreamer's proprietary rights in the Platform. You may not use the Platform except in accordance with applicable laws and regulations.
3. Ownership of Intellectual Property Rights. The App is licensed to you, not sold, and you are only permitted to use the Site for the sole purpose of submitting Delivery Orders. You acknowledge that RDS and its licensors own and retain all proprietary rights in the Platform (including all Upgrades thereto). The Platform includes copyrighted material, trademarks, and other proprietary information ("Intellectual Property") of RDS, and its licensors. There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved. You agree that any questions, comments, or suggestions (collectively, "Feedback") that you send to us shall become the sole property of RDS. You further agree that RDS shall be free to use and exploit in any manner any ideas, concepts, know-how, methods, or techniques contained in such Feedback for any purpose without your consent and without payment of any consideration to you, you hereby assign all rights, title and interest in such Feedback to RDS.
This Agreement may contain certain supplemental terms, that are located below. In the event of a conflict between the terms located below and the terms provided above, the terms provided above shall always supersede and govern.