Terms & Conditions
These Sidedoor Terms and Conditions (“Terms”) is entered into between Sidedoor, Inc., a Delaware corporation (“Sidedoor”) and you (“Restaurant”). In consideration of the mutual covenants and promises contained in these Terms, the parties agree as follows:
Services
Sidedoor provides virtual restaurant services for third-party delivery platforms, including but not limited to DoorDash, Grubhub, and Uber Eats. Sidedoor reaches out to Restaurants to become fulfillment centers/kitchens responsible for handling food orders and preparing food for delivery drivers from the aforementioned third-party delivery platforms.
Requirements to launch operations
The parties shall complete the following actions and satisfy the following requirements:
Restaurant will provide to Sidedoor professional photographs of selected menu items (subject to Sidedoor approval), or provide Sidedoor the menu items and a location for Sidedoor to arrange for a professional photographer to take photographs of such menu items.
Sidedoor will evaluate marketing, branding and promotional efforts specific to Restaurant.
Sidedoor may, at Restaurant’s election, provide an order aggregation tablet which Restaurant will use to receive orders from the Delivery Platforms and, at Restaurant’s election, provide a printer to use in connect with such aggregation tablet.
Sidedoor may, at Restaurant’s election, in lieu of an aggregation tablet, integrate its order aggregation software with Restaurant’s point-of-sale (POS) systems for Restaurant to receive orders from the Delivery Platforms.
Restaurant hereby irrevocably appoints Sidedoor as Restaurant’s attorney-in-fact, with such power coupled with an interest, to execute documents and take other actions required on Restaurant’s behalf for the purpose of creating accounts with Delivery Platforms on behalf of Restaurant, to operate and amend such accounts without prior notice to Restaurant, and to otherwise effect the services contemplated by these Terms (as all set forth on Schedule 1).
Intellectual Property
Intellectual Property Rights: “Intellectual Property Rights” means all intellectual property rights or other similar rights throughout the world, however designated, including but not limited to, patent rights, inventions (whether or not patentable), copyrights and works of authorship (whether or not copyrightable), domain names, trademarks, trade names, trade dress, logos, mask works, know-how, rights in software (including all source code, object code and associated documentation), algorithms, data and databases, designs, improvements, proprietary information (including but not limited to customer lists and pricing and business plans) and trade secret rights, together with all registrations and applications for registration of, and all goodwill associated with, any of the foregoing.
Sidedoor IP: Restaurant acknowledges that, as between Restaurant and Sidedoor, Sidedoor owns all right, title and interest, including all Intellectual Property Rights, in and to the: (i) Brands (including any names, trademarks, service marks, trade names or logos of Sidedoor contained therein (collectively, the “Sidedoor Marks”), and any marketing and advertising thereof), (ii) Virtual Menu Items, if any (including recipes thereof which shall constitute a Sidedoor trade secret), (iii) photos and images of menu items paid for by Sidedoor, (iv) Services, including any and all improvements, enhancements or modifications thereto, any software, applications, inventions or other technology developed in connection with these Terms, and (v) any suggestions, ideas, enhancement requests, feedback, recommendations and other data or information provided by Restaurant or any other party relating to the Services (“Feedback”) (collectively, the “Sidedoor IP”). Further, Sidedoor owns all right, title and interest, including all Intellectual Property Rights, in and to any data or statistics compiled or collected hereunder (“Sidedoor Data”). To the extent that any Intellectual Property Rights in any Sidedoor IP or Sidedoor Data vest in Restaurant, Restaurant will, and hereby does, assign any right, title, or interest in or to the Sidedoor IP and Sidedoor Data to Sidedoor. Sidedoor reserves all rights not expressly granted to Restaurant under these Terms.
Restaurant IP: Sidedoor acknowledges that, as between Sidedoor and Restaurant, Restaurant owns all right, title, and interest, including all Intellectual Property Rights, in and to the Restaurant’s intellectual property that exists prior to the Effective Date and all derivative works thereof, such as Restaurant’s name and trademarks, the Original Menu, recipes for the Original Menu items, and photos and images of menu items provided by Restaurant (collectively, the “Restaurant IP”).
License to Restaurant IP: Restaurant hereby grants to Sidedoor an irrevocable, perpetual, nonexclusive, full paid-up, royalty-free, transferable, and worldwide right and license to the Restaurant IP, with rights to sublicense through multiple levels of sublicensees, to reproduce, distribute, publicly display, publicly perform, modify, prepare derivative works based upon, and otherwise use and exploit such Restaurant IP to provide the Services under these Terms. The foregoing grant enables Sidedoor to use and otherwise exploit, in any manner, Restaurant IP in connection with any and all: (i) products marketed and distributed under any Brand (including any future product(s), service(s) or business(es) derived therefrom); and (ii) Virtual Menu Items.
License to Sidedoor IP: Sidedoor hereby grants to Restaurant a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to use the Sidedoor IP to the extent such Sidedoor IP is incorporated into the Virtual Menu Items during the term of these Terms solely to arrange, prepare, cook, assemble and package any Virtual Menu Item in connection with the fulfillment of orders. All goodwill and improved reputation generated by Restaurant’s use of the Sidedoor Marks inures to the exclusive benefit of Sidedoor.
Restrictions: Restaurant will not use any Sidedoor IP except as expressly provided in Section 3(e) above. Without limitation, Restaurant will not: (i) use any Sidedoor Mark as part of its name or in connection with any business, or adopt, use or attempt to register any trademark, service mark or trade name that is confusingly similar to any of the Sidedoor Marks; (ii) directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Brands or Virtual Menu Items or to take any other action which may adversely affect Sidedoor’s rights or interest in the Brands or Virtual Menu Items in any jurisdiction; (iii) otherwise violate, contest, challenge, directly or indirectly, any rights or interest of Sidedoor, including any proprietary rights, related to the Brands or Virtual Menu Items; (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Brands; (v) make any modification or enhancement to, or any derivative works of, the Brands or Virtual Menu Items, or any portion thereof; (vi) frame, mirror, copy, sell, resell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Brands, Virtual Menu Items or Services; or (vii) use the Brands or Virtual Menu Items to create or launch a virtual restaurant or service that competes in the marketplace with the Brands or Virtual Menu Items.
Term and Termination
The term of these Terms will start on the Effective Date and continue in effect until terminated by either party in accordance with these Terms. Either party may terminate these Terms for convenience by providing thirty (30) days’ written notice to the other party. Either party may also terminate these Terms, effective on written notice to the other party, if the other party materially breaches these Terms and fails to cure such breach within ten (10) business days after receiving notice of such breach from the non-breaching party. Upon termination of these Terms, all licenses from Sidedoor to Restaurant set forth in Section 3(e) shall terminate and Restaurant will cease all display, advertising, promotion, and use of all of the Brands and Virtual Menu Items created under these Terms. Restaurant will return or destroy, at Sidedoor’s sole option, all Sidedoor Proprietary Information in its possession or control, and at Sidedoor’s request, certify in writing to Sidedoor that the Sidedoor Proprietary Information has been returned, destroyed or, in the case of electronic communications, deleted. Further, Restaurant shall, within ten (10) days following the effective date of termination of these Terms, return any order aggregation tablet provided by Sidedoor to Restaurant. No termination will affect Restaurant’s obligation to pay all fees that may become due or otherwise accrue through the effective date of termination, or entitle Restaurant to any refund.
Revenue Sharing
Sidedoor shall receive all revenue/gross sales generated from orders placed through the virtual restaurants.
Restaurants shall be entitled to receive a percent of gross sales, as revenue share, described in Exhibit A, unless otherwise specified in a separate agreement.
Sidedoor reserves the right to adjust the revenue-sharing percentage at its discretion, with notice to the Restaurants.
Fees and Costs
Services Fees: Restaurants are required to pay a monthly subscription fee for utilizing Sidedoor's services. Two subscription plans are available: Standard and Pro. Each plan is priced separately described in Exhibit A.
Sidedoor reserves the right to waive the subscription fee at its discretion.
Other Fees
Restaurant shall also be responsible for the payment of the additional fees, if any, set forth in Exhibit A and the intended plan chosen by accepting the terms of these Terms.
Payments to Restaurant
Sidedoor will process payments received from Delivery Platforms on behalf of Restaurant and remit the revenue share amount described in Exhibit A to Restaurant. All costs and fees shall be deducted from the proceeds of the sales on the Delivery Platforms. Restaurant is responsible for remitting any sales taxes to the applicable government agencies. In the event that the proceeds of the sales on the Delivery Platforms in a given month are not sufficient to cover all of the costs and fees owed by Restaurant to Sidedoor, Sidedoor shall have the right to invoice Restaurant for such fees and Restaurant shall pay such fees within fifteen (15) days from receipt of Sidedoor’s invoice.
Sidedoor shall disburse the proceeds after deducting applicable costs and fees to Restaurant every one (1) week.
Restaurant Obligations
Service and Quality Requirements: Restaurant is responsible for maintaining an acceptable level of quality in accordance with industry standards when operating under the Brands. The service and quality requirements include but are not limited to:
Quality of Food: Restaurant shall maintain consistent food quality, as evidenced by reviews on the Delivery Platforms, and use commercially reasonable efforts not to receive sub-par quality and low ratings/unmitigated negative reviews, sustained declines in reviews or deviate from the initial food quality.
Presentation and proper attribution to the Brands: Restaurant shall apply the correct branding materials (logos, stickers, bags etc.) and use the correct containers for each Brand based on the order received from the Delivery Platform.
Orders/operating hours: Restaurant shall use commercially reasonable efforts to maintain the percentage of order errors under 2% of the total orders per month (as indicated by the Delivery Platform metrics), and Restaurant shall not materially change its normal operating hours.
Fulfillment of Orders: When Restaurant receives an order through the applicable Delivery Platform, Restaurant shall promptly arrange, prepare, cook, assemble and package each item specified in the order in a manner consistent with Restaurant’s arrangement, preparation, assembly, and packaging of Restaurant’s similar products for direct sales. Restaurant will use commercially reasonable efforts to adhere to any alterations or specifications with respect to preparation, assembly, and packaging, and including without limitation specific ingredients and recipes, as Sidedoor may direct Restaurant to follow in writing (email accepted) from time to time with respect to the orders. To the extent required by the Delivery Platform, Restaurant will provide all necessary ingredient, allergy and caloric information for each menu item and all products or services marketed and distributed under a Brand pursuant to these Terms.
Restaurant will be responsible for complying with any and all Delivery Platform requirements with respect to each order.
Virtual Menu Items: From time to time, Sidedoor may request that Restaurant arrange, prepare, cook, assemble and package Virtual Menu Items for a Brand as agreed upon in advance by Restaurant. Restaurant shall promptly arrange, prepare, cook, assemble and package each Virtual Menu Item in accordance with Sidedoor’s instructions.
Delivery Platform Obligations: Restaurant acknowledges and agrees that (i) the Delivery Platforms are provided by third parties; (ii) Sidedoor has no responsibility for the Delivery Platforms; and (iii) it will hold Sidedoor harmless from any act or omission of any representative of the Delivery Platform. Restaurant acknowledges and agrees that Restaurant’s use of the Delivery Platforms shall be subject to (and Restaurant agrees it is bound by) each Delivery Platform’s terms and conditions, as they may be modified from time to time (the “Delivery Platform Terms”). The Delivery Platform Terms are hereby incorporated into these Terms by this reference. In addition, Restaurant shall be solely responsible for any and all liability relating to the interaction between Restaurant and the Delivery Platforms and its customers, including bearing the full cost of refunds, credits or re-orders for the Delivery Platform customers and any liability arising from the delivery of alcoholic beverages with the orders to such customers, in accordance with the applicable Delivery Platform Terms.
Exclusivity: Restaurant agrees during the term of these Terms, Sidedoor will be the sole and exclusive provider of the Services to Restaurant. Restaurant acknowledges that Sidedoor may expend significant time and resources to market and develop products and services marketed and distributed under the Brands as well as the Virtual Menu Items. As such, Restaurant agrees that, during the term of these Terms, Restaurant shall not directly or indirectly advertise, market and/or facilitate the sale and/or delivery of any Virtual Menu Items on the Delivery Platforms under any brands other than the Brand without the prior written consent of Sidedoor. For the purpose of clarity, the foregoing restriction shall not prevent Restaurant from selling the Original Menu items through Restaurant’s restaurant.
Non-Circumvention: During the term of these Terms, Restaurant shall not directly or indirectly solicit or entice, or attempt to solicit or entice, any customers of the Brands for purposes of diverting their business from the Brands to Restaurant’s restaurant. For purpose of clarity, the foregoing restriction shall not prevent Restaurant from soliciting any customer that it can demonstrate was a customer of its restaurant prior to the launch of the Brands.
Non-disparagement: Restaurant acknowledges and agrees that in no case shall Restaurant disparage or denigrate the Brands or products or services of Sidedoor, or do or omit to do anything that may adversely affect the reputation of Sidedoor, including in any form of communication, marketing or promotion.
Compliance with laws
Restaurant represents, covenants, and warrants that Restaurant will comply with all applicable laws and regulations, including retail food, alcoholic beverage or other health and safety code, rule, or regulation in its performance under these Terms.
Equipment
Restaurant will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, internet connection, counter space, kitchen licenses, ingredients, cookware etc. (collectively, “Equipment”). Restaurant will also be responsible for maintaining the security of the Equipment and if provided, Restaurant account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Restaurant account or Equipment with or without Restaurant’s knowledge or consent.
Insurance
Restaurant, at its sole expense, agrees that throughout the term of these Terms, and for one (1) year thereafter, to maintain: (a) a commercial general liability (including product liability) insurance policy in amounts not less than as required by law or that is common practice among prudent, professionally managed companies in such party’s business; (b) workers’ compensation insurance and (c) food borne illness insurance in such amounts as Sidedoor shall require from time to time. All insurance maintained by Restaurant shall (i) be in a form reasonably satisfactory to Sidedoor, with an insurance carrier reasonably satisfactory to Sidedoor; and (ii) be primary insurance and any insurance carried by Sidedoor or its affiliates shall be excess insurance only. All such insurance shall be subject to modification or cancellation only upon ten (10) days’ notice to each certificate holder and to Sidedoor. Restaurant, promptly following Sidedoor’s request, shall furnish Sidedoor with a certificate of insurance in such coverage, such certificate to be in a form acceptable to Sidedoor.
Confidentiality; Proprietary rights
Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of Disclosing Party). Proprietary Information of Sidedoor includes but is not limited to non-public information, inventions, processes, methods, products, know-how, trade secrets, patent applications, and other proprietary information regarding features, functionality and performance of the Service. Proprietary Information of Restaurant includes only non-public data regarding operations history provided by Restaurant to Sidedoor to enable the operations contemplated by these Terms (“Restaurant Data”). Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except as necessary to perform its obligations under these Terms or as otherwise permitted herein) or divulge to any third person any such Proprietary Information, except to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Proprietary Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms, for a period of five (5) years following the disclosure thereof, provided, however, with respect to any Proprietary Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Proprietary Information remains subject to trade secret protection under applicable law. Disclosing Party agrees that the foregoing will not apply with respect to any information that Receiving Party can document: is or becomes generally known or available to the public through no act or failure to act by the Receiving Party; was rightfully in its possession or known by Receiving Party prior to receipt from Disclosing Party; was rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; was independently developed without use of or access to any Proprietary Information of Disclosing Party; or is required to be disclosed by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Indemnification
Restaurant shall, at its sole expense, indemnify, defend and hold Sidedoor and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers, shareholders, members, and representatives (collectively, “Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and costs) (collectively, “Losses”) incurred in connection with any judicial or non-judicial claim, action, demand, suit or proceeding (collectively, “Claims”) brought against an Indemnitee insofar as such Claim is based upon allegations relating to: (i) Restaurant’s restaurant, the Original Menu, Restaurant’s Equipment and other property, or Restaurant’s employees (including, without limitation, Claims relating to taxes owed in connection with the sale of the menu items or food safety and illness, injury, death, or damage as a result of the delivery, consumption or use of any menu item); (ii) fulfillment of any order; (iii) use of the Brands, Virtual Menu Items or Services not in accordance with the terms of these Terms, (iv) Restaurant’s failure to comply with all applicable laws and regulations or (v) any breach or alleged breach of these Terms. Restaurant may not settle or otherwise dispose of any Claim against an Indemnitee without Sidedoor’s prior written approval. This Section 12 does not affect Sidedoor’s liability for death or personal injury arising from its own gross negligence, nor its liability for any other liability which cannot be excluded or limited under applicable law.
Indemnification Procedure: Restaurant will be notified in writing of any such Claim above and permitted to defend and compromise such Claim, except that Sidedoor’s consent is required for those compromises or settlements imposing any financial obligation or admission of liability upon Sidedoor or involving Sidedoor’s Intellectual Property Rights, such consent not to be unreasonably withheld. Sidedoor will have the right but not the obligation to employ separate counsel and participate in the defense of any such Claim(s) at Sidedoor’s sole cost. If Restaurant does not assume or conduct the defense on behalf of Sidedoor: (i) Sidedoor may defend against and consent to the entry of any judgment or enter into any settlement with respect to any Claim in any manner it reasonably deems appropriate and Sidedoor need not consult with or obtain any consent from Restaurant in connection with any such defense, consent or settlement; (ii) Restaurant will remain responsible for any Claims and Losses Sidedoor may suffer resulting from, arising out of, relating to, in the nature of or caused by any third party Claims to the fullest extent provided herein; and (iii) Restaurant will remain responsible and will reimburse Sidedoor for any Claims and Losses Sidedoor may pay, incur or otherwise suffer resulting from, arising out of, relating to, in the nature of, or caused by such third party Claims, and this obligation will survive the termination or expiration hereof.
Warranty and disclaimer
Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and (ii) it has the full right, power, and authority to enter into these Terms, to grant the rights and licenses granted under these Terms and to perform its obligations under these Terms.
With respect to orders and menu items prepared by Restaurant’s restaurant, Restaurant represents and warrants that: (i) Restaurant will fulfill each order in accordance with any and all Delivery Platform requirements; (ii) each menu item shall be made using quality ingredients, within its “sell by” date, and in accordance with all applicable food safety practices and regulations; (iii) each menu item will be safe, merchantable, fresh, and the menu items shall not and will not be contaminated, degraded, mislabeled, misbranded or materially inconsistent with any description provided to Sidedoor, or adulterated within the meaning of applicable law; (iv) the weight(s), measurement(s), size(s), nutrition, allergy and caloric information (all as applicable), and any other information provided in connection with the menu items and/or their packaging (or in connection with any menu) shall be complete, accurate, and true, and consistently comply with all relevant applicable laws and regulations related to labeling; (v) will not be prepared and held under unsanitary conditions; and (vi) will be consistent with its original quality when received by the applicable end consumer (assuming proper storage and handling after delivery).
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, COMPANY EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE NUMBER OF ORDERS RESTAURANT WILL RECEIVE IN CONNECTION WITH THE SERVICES, NOR DOES COMPANY REPRESENT OR WARRANT THAT RESTAURANT WILL RECEIVE ANY INCREASED SALES OF MENU ITEMS OR BUSINESS AS A RESULT OF THE SERVICES OR THIS AGREEMENT. RESTAURANT ACKNOWLEDGES AND AGREES THAT (I) THE DELIVERY PLATFORMS ARE PROVIDED BY THIRD PARTIES AND NOT BY COMPANY; AND (II) COMPANY MERELY FACILITATES RESTAURANT’S INTERACTIONS WITH THE DELIVERY PLATFORMS AND HAS NO RESPONSIBILITY FOR THE DELIVERY PLATFORMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of liability
EXCEPT FOR: (I) A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11 OR (II) FRAUD OR WILFUL MISCONDUCT BY COMPANY, COMPANY WILL NOT BE LIABLE TO RESTAURANT FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO RESTAURANT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY RESTAURANT TO COMPANY IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN RESTAURANT AND COMPANY, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
Independent contractors
Restaurant and Sidedoor are independent contractors in all matters relating to these Terms, and these Terms will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between Restaurant and Sidedoor.
Governing law; Dispute resolution
This Terms is governed by the laws of the State of California, without giving effect to principles of conflicts of law. Subject to Section 17, any dispute arising out of, relating to or concerning these Terms will be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in Orange County, California. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. RESTAURANT AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with Restaurant’s or Sidedoor’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Equitable Relief
Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 11 or, in the case of Restaurant, Section 3(f) these Terms with respect to Sidedoor’s Intellectual Property Rights, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without having to post a bond or other consideration. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Force Majeure
Neither party will be responsible for any failure or delay in the performance of its obligations under these Terms (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Final provisions
This Terms constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements between the parties regarding the same subject matter. Sidedoor may modify the terms of these Terms from time to time in its sole discretion, and such modifications will be effective immediately, provided, however, Sidedoor will provide at least 10 days’ advance notice for any material modifications to the terms. If Sidedoor modifies these Terms, Sidedoor will provide an updated version of the Terms to Restaurant via email or post it to its website (at https://www.trysidedoor.com/), and may also send other communications to Restaurant. If Restaurant does not agree to the modifications, Restaurant may terminate these Terms, effective on written notice to Sidedoor. Failure to enforce any provision of these Terms will not constitute a waiver of such provision. With the exception of the Class Action Waiver in Section 16 of these Terms, if any provision is deemed invalid or unenforceable, the other provisions will remain in full force and effect. Parties may execute these Terms by electronic signatures or by facsimile in counterparts, which taken together will constitute one instrument. Restaurant may not assign or transfer these Terms without the prior written consent of Sidedoor. Sidedoor may freely assign these Terms, in whole or in part, without the consent of Restaurant. Nothing contained in these Terms will be deemed to create any third party beneficiary right upon any third party whatsoever. Any notice under these Terms must be in writing and delivered personally or by overnight courier or sent by email. The section headings of these Terms are for convenience only and have no value for interpretation of these Terms. For purposes of these Terms: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and (ii) the word “or” is not exclusive. The parties agree to contract electronically and that electronic signatures will have the same weight and effect as originals.
Survival
The following provisions survive termination or expiration of these Terms: 3 (Intellectual Property), 7 (Non-disparagement), 12 (Insurance), 13 (Confidentiality. Proprietary rights), 14 (Indemnification), 15 (Warranty and disclaimer), 16 (Limitation of liability), 18 (Governing law; Dispute resolution), 19 (Equitable Relief), 21 (Final provisions) and 22 (Survival).
Contact Information
For any inquiries or concerns related to this Agreement, please contact Sidedoor at team@trysidedoor.com or (949) 694-6292.
Schedule 1
Power of Attorney
Restaurant hereby irrevocably designates and appoints Sidedoor (and any of Sidedoor’s designated officers or employees) as Restaurant’s attorney-in-fact, to act for and on Restaurant’s behalf to: (a) send notifications and requests (including via electronic communication) for verification of accounts in connection with the Delivery Platforms (“Accounts”); (b) open, manage and modify Accounts in either Restaurant’s entity name or restaurant name; (c) receive and open any mail, including email, addressed to Restaurant for the purpose of managing the Accounts; (d) endorse Restaurant’s name on any checks or other forms of payment or security that may come into Sidedoor’s possession; (e) notify the Delivery Platforms and associated parties with respect to the Accounts to pay Sidedoor directly; (f) sign Restaurant’s name on any invoice or bill of lading relating to any Account, drafts against a Delivery Platform, schedules and assignments of Accounts, verifications of Accounts, and notices to the Delivery Platforms; (g) demand, collect, receive, sue, and give releases to any Delivery Platform for the monies due or which may become due upon or with respect to the Accounts and to compromise, prosecute, or defend any action, claim, case or proceeding relating to the Accounts; (h) settle and adjust disputes and claims relating to the Accounts for amounts and upon terms which Sidedoor determines to be reasonable; (i) execute on behalf of Restaurant any and all instruments, documents, financing statements, and W-9 forms to perfect Restaurant’s interests in the Accounts and (j) do all acts necessary to otherwise effect the services contemplated by these Terms. For the avoidance of doubt, the foregoing appointment novates any previous appointments that may have been made orally or in writing.
EXHIBIT A
Revenue Sharing
Revenue Share to Restaurant: 35% of Gross Sales
Fees
Standard Plan Subscription Fee: $149/month
Pro Plan Subscription Fee: $299/month
Early Termination Fee, when Restaurant cancels their subscription within 30 days of the launch of any virtual restaurant created by Sidedoor: $500
By accepting these terms, Restaurant acknowledges, has read, has understood, and agrees to be bound by this Terms of Service Agreement.