Restaurant Agreement
Version 4.0.1
THIS AGREEMENT constitutes a legally binding agreement made between you (whether personal or on behalf of the entity ("Restaurant") and Dola Technology Limited or its affiliates ("Company"); (each a "Party" and collectively the "Parties").
WHEREAS:
The Restaurant wishes to engage the Company to provide the Restaurant with the following:
1. various hardware ("Hardware") to run the Company's POS system;
2. use of software programs, platforms, applications, websites, equipment, technologies and other types of services namely, software-as-a-service that are developed by the Company ("Software"); and
3. various marketing activities to promote the Restaurant ("Marketing Services").
4. client services ("Client Services") that are related to Hardware, Software and Marketing Services.
subject to the provisions of this Agreement.
IT IS AGREED as follows:
1. ENROLLMENT
1.1 In order to use the Software, the Restaurant is required to open an account with the Company ("Account"). During the term of this Agreement, the Restaurant agrees to provide, maintain and update promptly the truth, accurate, up-to-date, and complete information about the Restaurant in the Restaurant registration process. In addition, during the term of this Agreement, the Restaurant will provide the Company with the current menu of the Restaurant and any updates, changes or modifications (the "Restaurant Menu") in the format required by the Company ("Marketing Materials") for the Company to use for any marketing or advertising activities by the Company, in the Company's sole and absolute discretion (the "Marketing Activities"). The Company reserves the privilege to modify, suspend or discontinue any Account for any person or company or account application that provides unreliable, inaccurate or fragmentary information or does not meet the Company's account registration or general requirements.
2. THE HARDWARE
2.1 The Company provides various hardware for Restaurants to run the Company's POS systems. If the Restaurant prefers to choose any other hardware, in a combination with or solely without the Company's hardware, the Company will not be responsible for any hardware failure or related problems. The Restaurant understands and claims that to the full extent permitted by law, the Company has no obligation to handle or solve any hardware failure or problems, and hereby releases the Company and its officers, service providers, all employees, directors, subsidiaries, agents, partners from any responsibilities or from any and all known and unknown, doubtful and undoubtful, published or unpublished claims, disclosed or undisclosed information relating to hardware not provided by the Company, and any losses or damages of any kind of nature (actual and consequential).
2.2 The Parties have agreed on the sale and purchase of the Company's Hardware and the Restaurant agrees to make a one-time payment for the Hardware.
2.3 Title in the Hardware shall pass from the Company to the Restaurant upon delivery of the Hardware to the Restaurant and payment by the Restaurant in full.
2.4 Risk in the Hardware shall pass from the Company to the Restaurant upon delivery of the Hardware and accordingly the Restaurant shall be responsible for insuring the Hardware against all normal risks with effect from the time risk passes.
3. THE SOFTWARE
3.1 The Company grants the Restaurant a limited, non-exclusive, non-transferable, revocable license for use of the Software. It is prohibited for the Restaurant to install and run licensed software or other products, including application software, its hosting services, and accounts on the Company's network. The details of the subscription will be provided by the Company when the Company's employees or agents contact the Restaurant to complete the account setup process.
3.2 The use of Software and the coverage of restaurants in applicable services are provided to end-user customers (hereinafter referred to as the "Customers") through the Company specifically media or media channels (the "Marketplace").
3.3 The Software can be modified, changed, replaced, added, and/or removed for continuous improvements. Such modifications should be entirely decided by the Company at its sole and absolute discretion without prior notice to the Restaurant.
3.4 To facilitate the operation of the Restaurant, the Company provides integration with third-party payment processing providers or acquirers, or delivery platforms (e.g. Foodpanda), but the Company does not make any claims or guarantees about the fitness of such integration and/or any third-party software. The Restaurant will be required to register and comply with the terms and conditions set by third-party providers or acquirers or platforms to use the integration.
(a) The Integration with DELIVERY HERO APAC PTE LIMITED (Foodpanda) provided by the Company will only apply when the Restaurant pay for and uses such additional integration service.
(b) The Company provides the integration to the Restaurant, and the Company will not responsible for any issues and losses occurred beyond what the Software can control. All Terms will be referred to the Contract between Restaurant and the third-party providers or acquirers or platforms.
(c) The Restaurant will be responsible for any losses or damages of any kind of nature (actual and consequential) that are caused by the Restaurant's misuse of the Software and the integration.
(d) The Restaurant agrees to perform and procure the performance of its obligations under this Agreement in compliance with all applicable law and rules set by the third-party providers or acquirers or platforms. The Company will not be responsible for negotiating the terms or involve in the disputes between the Restaurant and the third-party providers or acquirers or platforms.
(e) Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry.
(f) Unless expressly provided elsewhere in this Agreement, each Party shall be responsible for and bear all the costs, charges and expenses incurred by it in connection with and incidental to the preparation and completion of this Agreement and all other documents referred to therein.
3.5 The Restaurant acknowledges and agrees that Customers can place orders with the Restaurant through the Marketplace or other media that may be included in the Software, for the food and beverages, and take-out, and/or dine-in services in connection therewith, as is described in the Restaurant Menu (the "Customer Order"). When a Customer Order is placed, the Company will send an electronic notice to the Restaurant through the Company's POS system or other means provided to and agreed by the Restaurant. The Customer Order will be successfully established as soon as the Restaurant confirms the order.
3.6 The Restaurant should do its best to deliver the Customer Order to the Customer in a timely manner. The Restaurant shall keep appropriate records as proof of order delivery (if applicable) for future reference.
3.7 The Marketplace allows Customers to pay the Customer Order through QF Pay International Ltd. or then-current payment providers by credit card and/or Alipay and/or Wechat Pay and/or other electronic payment methods to the Restaurant. If the Customer Order is paid by credit card or any other payment methods described above, the full purchase price of the Customer Order, including business tax, value-added tax or VAT and any other applicable taxes (collectively referred to as "Taxes"), shall be processed and collected by the third party payment provider, which will be delivered to the Restaurant by the third party payment provider based on the relevant agreement between the third party payment provider and the Restaurant.
3.8 The Restaurant is and will be responsible for all Taxes, payments, fees and all other liabilities related to the computation, payment and collection of taxes related to Customer Orders, Software and Marketplace.
4. THE MARKETING SERVICES
4.1 The Company may carry out various Marketing Activities to promote the Restaurant and the Restaurant Menu, providing all such Marketing Activities are decided by the Company in its sole and absolute discretion and the Marketplace may be changed without notice from time to time to reflect any such changes.
5. TERM AND TERMINATION
5.1 This Agreement shall take effect from the date of first registration of the Restaurant and will continue to be valid and in full force when the Restaurant continues to use the Software.
5.2 For any reason, either the Company or the Restaurant can terminate this Agreement at any time by giving one month written notice to the other through email. Neither party shall be liable for damages suffered by the other party as a result of any such termination.
5.3 Upon terminating the Agreement:
(a) Restaurant must export their data;
(b) the Company will delete the Restaurant from the Marketplace and the Software as soon as applicable and without notifying the Restaurant. The Company will not be responsible for the loss of data of the Restaurant; and
(c) each Party shall pay the outstanding amounts owed for related Customer Orders immediately.
5.4 If this Agreement is terminated by the Restaurant, no refund, offset or claim should be made against the Subscription Fee.
5.5 In the event of the termination of this Agreement, the Subscription Fee shall continue to be payable during the notice period, whether or not the Restaurant uses the Software or the Company providing Marketing Services during that period.
5.6 Without prejudice to other rights of the Company under this Agreement, on termination of this Agreement for any reasons whatsoever, the Restaurant shall immediately pay to the Company all of the Company's outstanding unpaid invoices.
6. SERVICE FEES
6.1 The Restaurant shall pay the one-off fees for purchasing the Hardware ("Hardware Fee").
6.2 The Restaurant can subscribe to the Software and Marketing Services on a yearly basis.
6.3 If the Restaurant shall not have paid the Company in respect of any outstanding and undisputed invoice seven (7) days after the invoice has become due the Restaurant shall pay to the Company interest at the rate of three (3) per cent per month or part month on any outstanding sum in respect of that invoice.
The Restaurant agrees to settle the Hardware Fee and/or the Subscription Fee payment within seven (7) days after the date of each invoice. Failure to make payment on time will result in the suspension of the delivery of the Hardware or the use of the Software and Marketing Services.
6.4 After this contract is signed, the Restaurant must pay all the outstanding fees to use the Software and Marketing Services. To avoid the interruption of service, the Restaurant agreed to pay Subscription Fee in time and before the expiration of the license for the use of the Software and Marketing Services. Failure to comply with or otherwise pay the Subscription Fee due may lead to the cancellation of the use of the Software and Marketing Services and the termination of the Restaurant Account.
7. RESTAURANT'S REPRESENTATIONS, WARRANTS AND COVENANTS
7.1 The Restaurant hereby declares and agrees that:
(a) it will strictly comply, and prepare, market, sell and provide all foods and beverages, with all applicable rules, regulations, standards and laws of all government authorities where the business of the restaurant operates, pertains to food preparation, marketing, sale, safety and any other aspects applicable to the Restaurant operations;
(b) it will not sell or provide any potentially hazardous food, alcoholic beverages, tobacco products, or any other items prohibited by the local law;
(c) it bears all risks to people and property caused by its contact (or its employees or service providers), and waives and agrees to compensate the Company for any and all claims related to the Company;
(d) the creation, distribution, transmission, public display and performing, accessing, downloading and copying of the Marketing Materials according to the license rights granted to the Company by this Agreement does not and will not infringe exclusive rights, including but not limited to the copyrights, patents, trademarks, trade secrets of any third party, both correlated and non-correlated to the Company; and the Marketing Materials do not disobey any laws, rules or regulations, including which relates to electronic advertising of all countries and regions.
7.2 If the Customer lodges a complaint or dispute, the Restaurant understands and agrees that the Company is not obliged to deal with this complaint or dispute, to the maximum extent permitted by law, and hereby releases the Company and its officials, directors and employees, service providers, partners, affiliated enterprises, agents and successors from any obligations or any losses incurred in connection with, any and all demands, claims and damage (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising from or in any way in connection with Customer disputes.
7.3 If the Restaurant is acting as a representative to help a company or business use the Company's Software, the Restaurant must declare to the Company that the said company or business accepts all the terms in this Agreement.
8. DISCLAIMERS
8.1 To the maximum extent permitted by law, the Company and its affiliated companies and their respective responsible officers, directors, members, employees and agents disclaim and shall not bear all express or implied warranties related to this Agreement, Services and any use thereof, including but not limited to implied warranties of merchantability, fitness for certain purposes, and non-infringement.
8.2 The Restaurant agrees that the Hardware, Software and Marketing Services are provided in "as is" condition. Any use is at the sole and absolute risk of the Restaurant. The Company does not make any guarantees or representations regarding the accuracy or completeness of the content of the Hardware, Software and Marketing Services or the content of any other Marketplace related websites, and assume no responsibility and liability for any (a) confusions, mistakes, omissions, errors, or any blunders of any Marketing Materials, (b) any kind of asset damage or personal hurt, of any nature, caused by the Restaurant's access to and use of Hardware, Software and Marketing Services, (c) unauthorized access to or use of the Company's servers and/or all personal and/or financial information stored therein, (d) communication or discontinuance of conveyance to or from the Restaurant from or to the Company, (e) any bugs, viruses, trojan horse or other similar things that can be transmitted or passed to or through Hardware, Software and Marketing Services by any third party (f) any errors or omissions of any content and materials, or any kind of loss or damage caused by any contents published, disseminated or otherwise provided by the Hardware, Software and Marketing Services.
9. LIMITATION OF LIABILITY
9.1 In no case shall the Company or its affiliates or their respective officers, directors, employees, service providers, partners, affiliates or agents be responsible or liable to Restaurant or any third party for any direct, indirect, special, incidental or consequential damages or losses caused by the use of or misuse of or inability to use the Hardware, Software and Marketing Services, errors or mistakes or loss of any data, costs of data recovery, any third-party claims or any other similar losses, losses of profits, losses of business, goodwill, downtime or special, incidental or punitive damages of any nature or any reason, no matter what form of action is, whether in contract, tort or otherwise, even if the Company has been informed of the possibility of such damages. Nevertheless, anything conflicting in this Agreement, and to the full extent permitted by law, the Company's liability to Restaurant for damage caused by any reasons, regardless of the form of the action, will in any case be limited to the amount paid, if any, by the Restaurant to the Company for Services during the period of 2 months before any cause of action first arises.
9.2 Local laws may prohibit the limitations on implied warranties or the exclusion or limitations of certain damages. If these laws apply to Restaurants, some or all of the above disclaimers or limitations may not apply to Restaurants based on the laws, and Restaurants may have some other rights.
10. COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS
10.1 The Restaurant hereby grants the Company:
(a) a global license that is non-exclusive, transferable, royalty-free, and fully paid for use, irrevocable, copying, public performance, public display, reforming, translation, excerpts (in whole or in part), and distribution of such Marketing Materials including any trademark, firm, service logo, logo, telephone number and address therein, for any purpose including marketing, commerce, advertising, promotional activities or otherwise; and
(b) a sublicensing right, in connection with the Marketing Services.
10.2 In connection with the Company's exercise of the license rights granted by the Restaurant, the Company can prepare derivative works of all or any part of the Marketing Materials or integrate them into other works. The license hereby granted will apply to any form, media, or technology now known or developed later. The Company does not claim any ownership of Marketing Materials; on the contrary, between the Company and Restaurant, and subject to the rights granted by this Agreement, the Restaurant shall be the owner of its Marketing Materials and intellectual property rights related thereto.
10.3 The Company, its affiliate and its licensors retain all rights, ownership, title and interests of all intellectual property rights in the Software, in addition to any modifications, developments and/or improvements to all old and new materials of correlating works. In addition, the Company owns the intellectual property rights of the photo or video taken by the Company for the Restaurant.
10.4 The Restaurant agrees not to:
(a) copy any Software or any of its derivatives directly or indirectly or through a third party to create any computer software program, computer system or document that is identical or substantially similar in function, visual or other aspects or to create derivative products;
(b) directly or indirectly, or in any way through third parties, try to acquire the source code of the Software, disassemble or decompile, or reverse engineer any of the Software, or attempt to acquire the source code of the Software in any means, or infringe intellectual property rights and interests in any Software or its related trademark or trademark name, including any copyright, trade secrets or patent;
(c) use, copy or infringe any content contained in the Software, or in trademark and/or logo contained on the Marketplace (hereinafter referred to as "Content"), owned or licensed by the Company; and
(d) circumvent, disable or otherwise interfere with any security-related work in the Marketplace or the Software, or any other function that leads to either prevent or restrict the use or replication of any Content or restrict the use of the Marketplace.
11. INDEMNITY
11.1 The Restaurant agrees to defend, indemnify and detain the Company and its subsidiaries and their respective officers, directors, employees, service providers and agents (collectively known as "Indemnitee(s)") free from and against any loss, judgements, penalties, interest, liability, suffering, claim or demand, including acceptable legal fees, investigations, audit, inquiry and expenses, made by any party due to or arising from the Marketing Materials of the Restaurant, Marketplace, Hardware, Software and Marketing Services or any violation of Restaurant against this Agreement. Despite the above clauses, the Company reserves the exclusive right to defend and control any matter that the Restaurant may be obligated to indemnify an Indemnitee at the Restaurant's expense, and the Restaurant agrees to cooperate with the Company's defence to such claims at the Restaurant's expense. The Company will make reasonable efforts to notify the Restaurant of any such claims, lawsuits or procedures that may be subject to this indemnification when the Company becomes thereof.
12. CONFIDENTIALITY
12.1 All non-public, confidential, or proprietary information of one Party ("Disclosing Party"), disclosed by the Disclosing Party to the other Party ("Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement, as well as the terms and conditions and the existence of this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorised by the Disclosing Party in writing.
12.2 Each Party may disclose the other Party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party's confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Upon the Disclosing Party's request, the Receiving Party shall promptly return all documents and other materials received from the Disclosing Party.
12.4 The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorised use or disclosure of Confidential Information, and will co-operate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorised use.
13. CUSTOMER DATA AND PRIVACY POLICY
13.1 "Customer Data" refers to any and all identity information about the Customer generated or collected by the Company or the Restaurant, including but not limited to the Customer's name, address, email address, telephone number, and the Customer's preferences and tendencies. The Restaurant undertakes to comply with the provisions of the Personal Data (Privacy) Ordinance (Cap. 486) ("PDPO") (and/or the relevant statute / act / ordinance in the jurisdiction of the Restaurant) and the Company's current privacy policy at all the time. Restaurants and the Company act as data processors and should ensure compliance with PDPO when using such data.
13.2 The Restaurant hereby acknowledges and agrees that the Company may process, transmit and/or store Customer Data for providing the Software and Marketing Services. By submitting Customer Data to the Company, the Restaurant agrees that the Company and its affiliates may process, transmit and/or store Customer Data only to the extent necessary for, and for the sole purpose of, enabling the Company to perform its obligations and provide better services to the Restaurant to under this Agreement. The Restaurant agrees to obtain all necessary consents and make all necessary disclosures before collecting and using the Customer Data.
13.3 The Restaurant confirms that the Restaurant is solely responsible for any Customer Data that may be contained in the Hardware, Software and Marketing Services. Any processing of the Customer Data according to the Restaurant's instructions which will not place the Company in breach of applicable data protection laws. Prior to processing, the Restaurant will inform the Company about any special categories of data contained within Customer Data and any restrictions or special requirements in the processing of such special categories of data, including any cross-border transfer restrictions.
13.4 The Restaurant reserves the right to export Customer Data from the Software and maintain it, as long as the data is processed with reasonable security measures and its use is in accordance with PDPO and the Company's current privacy policy at all the time.
13.5 The Company reserves the right to use the Customer Data and share such data with third-party affiliates for enhancing the performance of the Hardware, the Services and/or the Marketing Activities. All these third-party affiliates and partners must keep any and all data that they may access confidential. The Restaurant agrees to inform and obtain the consent from the Customer for allowing the Company to process the Customer Data for the aforesaid purposes.
13.6 The Restaurant acknowledges that the Company and its affiliates may use the Customer Data for the performance of applicable Customer Orders. The Restaurant (and any other person who provides any Customer Data to the Restaurant) will implement and comply with reasonable security measures to protect, process and secure Customer Data.
14. MISCELLANEOUS
14.1 Each of the Parties warrants its power to enter into this Agreement and has obtained all necessary approvals to do so.
14.2 Nothing in this Agreement shall be transferred without the express written consent of both Parties.
14.3 If any clause of part of the clause of this Agreement is illegal, void or unenforceable, that clause or that part of the clause is deemed to be separate from this Agreement and will not affect the validity and enforceability of any remaining clauses.
14.4 This Agreement contains all the terms and conditions agreed between the Parties as to the subject matter of this Agreement, and supersedes in all respects, all previous correspondences, undertakings, agreements and arrangements (if any) between the Parties with respect to the same subject matter, whether written or oral.
14.5 Any notice or other communication given to a Party under or in connection with the Agreement shall be in writing, addressed to that Party at its registered office or such other address as that Party may have specified to the other Party in writing in accordance with this clause, and shall be by mail or email.
14.6 No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy hereunder preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party or any breach by any other Party of any provision hereof shall be deemed to be a waiver of a subsequent breach of that or any other provision hereof.
14.7 The Parties are not partners or joint venturers nor is the Company able to act as agent of the Client save as authorised by this Agreement.
14.8 Except as otherwise expressly stated, this Agreement does not confer any rights on any person or Party (other than the Parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong).
14.9 The Company may modify this Agreement from time to time, and such changes will:-
(a) be reflected on the Company's website and/or the Marketplace;
(b) be effective 30 calendar days after being posted on the Company's website and/or the Marketplace;
(c) not apply retrospectively; and
(d) not apply to any dispute arising before the effective date of such change.
14.10 Notwithstanding clause 14.9, the Company reserves the right to modify, change, alter, suspend, discontinue or otherwise temporarily or permanently amend the Services and the Marketplace (or any part thereof) with or without notice at any time and from time to time. The Restaurant agrees that the Company is not responsible and liable to the Restaurant or any third party for any changes, modifications, alterations, suspensions, discontinuance, or amendment of the Marketplace and Services.
14.11 This Agreement may be executed in any number of counterparts which together shall constitute one agreement. Any Party may enter into this Agreement by executing a counterpart and this Agreement shall not take effect until it has been executed by all Parties.
14.12 The Enrollment procedure mentioned in Clause 1 in this Contract is not for Entry Plan Subscribers and it only includes the initial menu and account setup, two times of menu adjustments, and one time (2-hour) on-site training service. All new requests for adjustments and arrangements will be charged based on the terms of the Client Services below. However, the Company strongly suggests the Restaurants make any adjustments by themselves. Before the (2-hour) on-site training service, the Restaurant should make sure the onsite condition should be met by the requirements of the Company.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 This Agreement is governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People's Republic of China.
15.2 If any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement is unable to be resolved between both parties, then it shall be referred to and finally resolved by the exclusive jurisdiction of the courts of Hong Kong.