Effective: April 30, 2020
BEFORE YOU USE THE VEGAFOODIES PLATFORM (“PLATFORM”) PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP FORM WITH VEGAFOODIES 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 FORM.
“Delivery API” means the Vegafoodies application programming interface (API) that allows the Merchant to exchange information with Vegafoodies.
“Vegafoodies Data” shall mean any information that Vegafoodies provides or makes accessible to Merchant through the Vegafoodies Platform, including without limitation Personal Information.
“Customer” means the customer who places an order for Merchant products through the Vegafoodies Marketplace.
“Vegafoodies Marketplace” means Vegafoodies’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 Vegafoodies website. This is also referred to herein as the Vegafoodies Platform.
“Marketplace Orders” means orders for Merchant Products through the Vegafoodies Marketplace from Vegafoodies customers.
“Merchant” means the restaurant or other entity that has agreed to participate in the Vegafoodies Services.
“Merchant Portal” is an online website, which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform.
“Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.
“Merchant Stores” means the Merchant restaurant locations that participate in the Vegafoodies Services.
“Marketplace Term” means the term of the agreement between Vegafoodies and Merchant for the Vegafoodies Marketplace.
“PickUp” means the online Vegafoodies communication platform where Customers can place an order for Merchant Products for pick up or delivery by the customer or the customer’s agent at a Merchant location.
“Order Equipment” means and includes any equipment reasonably required by Vegafoodies for Merchant to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.
“PickUp Term” means the term of the agreement between Vegafoodies and Merchant for the PickUp or delivery.
“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).
“Promotion Fee” means the fees collected by Vegafoodies as a commission in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Vegafoodies Platform, which is charged as a percentage of revenues transacted on the Vegafoodies Platform.
“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.
“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: Vegafoodies provides an online marketplace platform using web-based technology that connects Merchants, and customers (“Platform”), as described in these Terms for Vegafoodies Marketplace. Vegafoodies is not a merchant or delivery service; it is an online connection platform. Merchant and Vegafoodies agree they are independent businesses whose relationship is governed by the Sign-Up Form and these Terms. Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Vegafoodies and Merchant (or Merchant’s employees, representatives or locations), or Vegafoodies and customers. Except as expressly set forth in the Sign-Up Form and these Terms, each Party shall be responsible for its own expenses, profits and losses.
3. Marketplace Core Responsibilities. For Merchants that have agreed to participate in the Vegafoodies Marketplace, Vegafoodies and Merchant shall have the following responsibilities during the Marketplace Term:
Vegafoodies Core Responsibilities. Vegafoodies will, in a timely manner:
Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the Vegafoodies Platform;
Accept Marketplace Orders from Customers;
Forward each Marketplace Order to the relevant Merchant Store
Pay the Merchant in accord with the Parties’ agreements, deducting applicable Promotion Fees, marketing fees, subscription fees and Activation Fees.
Merchant Core Responsibilities. Merchant will, in a timely manner:
Provide Vegafoodies with the Merchant’s in-store or take-out menu, including the price of each item on such menu;
Monitor Merchant’s menu and store information on the Vegafoodies Marketplace, promptly make updates via the Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify Vegafoodies of any errors or changes in writing;
Accept all Marketplace Orders placed by Vegafoodies from Merchant’s then-current menu;
Confirm all Marketplace Orders from Vegafoodies;
Prepare the Merchant Products for each Marketplace Order for pickup or delivery by at the designated time;
Process Marketplace Orders in the order in which they are received;
Notify Vegafoodies of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
Notify Vegafoodies of its days and hours of operation, and remain open for business on Vegafoodies the same days and hours of operation as Merchant’s in-store business; notify Vegafoodies of any changes to Merchant’s hours of operations on holidays; and notify Vegafoodies if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;
Notify all Merchant store staff members of the relationship with Vegafoodies immediately upon execution of this Agreement; and
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 12(3)(i).
On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Vegafoodies any inaccuracies.
4. Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:
Marketplace Refunds. In the event that Vegafoodies, 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 Vegafoodies.
5. Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:
Vegafoodies Marketplace. Vegafoodies will pay for Marketplace Orders fulfilled by Merchant each week on a consistent day of the week, subject to change with no less than 10 days notice to Merchants by email or service notification. Vegafoodies shall be entitled to deduct from such payments Promotion Fees, marketing fees, Activation Fees and subscription fees. Merchant agrees Vegafoodies may charge the customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable, as well as an additional markup for Merchant Products, in Vegafoodies’s sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a menu item, Vegafoodies shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to Vegafoodies of such pricing change.
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 Vegafoodies in writing any claimed inaccuracies, so that Vegafoodies has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Vegafoodies and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Vegafoodies 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 Vegafoodies regarding such transaction, fee, charge or order within such 60-day period.
Title: Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the customer upon pickup at the Merchant’s location. Merchant agrees that neither Vegafoodies holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.
6. Payment Processing.
Payment processing services for Merchants on the Vegafoodies Marketplace are provided by Stripe and Mollie and are subject to the Stripe Agreement and Mollie Agreement, which includes the Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by these Agreements, as the same may be modified by Stripe or Mollie from time to time. As a condition of Vegafoodies enabling payment processing services through Stripe or Mollie, Merchant agrees to provide Vegafoodies accurate and complete information about Merchant’s representative and its business, and Merchant authorizes Vegafoodies to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe or Mollie.
7. Merchant Content and Trademark; Photographs of Menu Items.
During the Marketplace Term, as applicable, Merchant grants to Vegafoodies a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use and display the Merchant Content in the provision of providing services to Merchant. 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 Vegafoodies.
If photographs of Merchant’s menu items are not available or if they do not meet Vegafoodies’s requirements, as reasonably determined by Vegafoodies, then Merchant consents to Vegafoodies engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the Vegafoodies Marketplace as representations of Merchant’s menu items; provided that Merchant may contact Vegafoodies support to have such photographs removed from the Merchant’s store listing and, in such event, Vegafoodies will comply in a timely manner.
8. Confidential Information.
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, Vegafoodies Data is the Confidential Information of Vegafoodies.
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.
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 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.
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 and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
9. Data Privacy and Security.
General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Vegafoodies Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Vegafoodies Data secure from unauthorized access and maintain the accuracy and integrity of Vegafoodies Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Vegafoodies Data, Merchant will immediately notify Vegafoodies, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Vegafoodies. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Vegafoodies and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Vegafoodies Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Vegafoodies Platform; damage, destroy or impede the services provided through the Vegafoodies Platform; transmit injurious code; or bypass or breach any security protection on the Vegafoodies Platform.
Delivery API. During the Term, Vegafoodies grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the Vegafoodies Drive services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.
Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice. Vegafoodies 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 Vegafoodies 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 Vegafoodies.
Vegafoodies 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. Vegafoodies may, at its sole discretion, remove Merchant Products or Stores from the Vegafoodies Marketplace if Vegafoodies determines that such Merchant Product or Merchant Store could subject Vegafoodies to undue regulatory risk, health and safety risk, or other liability. Vegafoodies also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://zakelijk.vegafoodies.nl/algemene-voorwaarden-merchants/.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.
12. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
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.
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.
Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed Vegafoodies of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Vegafoodies 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 Vegafoodies Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Vegafoodies Marketplace or request delivery of any age-restricted products through the Vegafoodies Platform without first entering into a separate agreement with Vegafoodies 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, (v) it will not disclose any information related to a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, VEGAFOODIES HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE VEGAFOODIES 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 Vegafoodies 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 Vegafoodies 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.
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 Vegafoodies, (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 above Sections 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”). In addition, Merchant will defend, indemnify and hold harmless Vegafoodies 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 Vegafoodies. 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. Vegafoodies assumes no liability, and shall have no liability, for any infringement claim pursuant to section above based on Merchant’s access to and/or use of the Vegafoodies Platform following notice of such an infringement claim; any unauthorized modification of the Vegafoodies Platform by Merchant; or Merchant’s combination of the Vegafoodies Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
14. Limitation of Liability.
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO VEGAFOODIES BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 13 (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.
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.
16. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH VEGAFOODIES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 16 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
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 Vegafoodies may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Vegafoodies 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. IF YOU AGREE TO ARBITRATION WITH VEGAFOODIES, 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 VEGAFOODIES IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Vegafoodies registered agent. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
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. The arbitration will decide the rights and liabilities, if any, of you and Vegafoodies. 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 Vegafoodies.
Waiver of Jury Trial. YOU AND VEGAFOODIES WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Vegafoodies are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 14(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Waiver of Class or Consolidated Actions; Severability. YOU AND VEGAFOODIES 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 Vegafoodies 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 17, and all other provisions of this Section 16 (Dispute Resolution) shall remain in force. If any provision of this Section 16 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 16.
Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Vegafoodies can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Vegafoodies in writing of your intention to opt out by sending a letter, by First Class Mail, to Vegafoodies B.V., euterpestraat 67, 5631HN, Eindhoven, The Netherlands. 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 Vegafoodies username (if any), the email address you used to set up your Vegafoodies 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 merchant 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.
Survival. This Arbitration Agreement will survive any termination of your relationship with Vegafoodies.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Vegafoodies 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.
17. Litigation Class Action Waiver: To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 16, 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.
18. Franchisees. Franchisees operating a restaurant 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 Vegafoodies to the Franchisee.
19. Communications from Vegafoodies. Merchant agrees to accept and receive communications from Vegafoodies, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to Vegafoodies. 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 Vegafoodies and its affiliated companies. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.
20. General Provisions.
As set forth on the Sign-Up Form between Merchant and Vegafoodies, the Sign-Up Form and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the Netherlands without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 16 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of Eindhoven, The Netherlands. Merchant may not assign this Agreement in whole or in part without Vegafoodies’s prior written consent. Vegafoodies may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties’ agreements must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Form (or any updated address properly noticed hereunder). Vegafoodies’s address euterpestraat 67, 5631HN, Eindhoven, The Netherlands.