- 1. Definitions. The following terms have specific definitions:
- a. “We,” “us,” and “our,” means Restaurant Technology Solutions, LLC and its subsidiaries.
- b. “Customer” or “you” means the company agreeing to these Terms, either by clicking to accept these Terms or by entering into an Order Form for the Tech Services.
- c. “Tech Services” means the services and functionality provided by our proprietary restaurant delivery order management technology platform, known as Otter.
- d. “Order Form” means an order form for use of the Tech Services provided by us or our authorized designee. If used, an Order Form shall be deemed incorporated into and part of these Terms.
- e. “Fees” means the service fees payable by you for your use of the Tech Services, as set forth in an Order Form or as otherwise indicated to you (by website or other means) when you agreed to use the Tech Services.
- f. “Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and other third party vendors or service providers that you may elect to use and that we have made available within the Tech Services.
- g. “Your Data” means information and data about you, your business, your end customers and your Third Party Vendors generated during your use of the Tech Services, including information and data obtained from or provided by your Third Party Vendors during your use of the Tech Services.
- 2. Tech Services
- a. We will provide the Tech Services, and you may use the Tech Services, in each case subject to these Terms. Your right to use the Tech Services is non-exclusive, personal to your company and its employees, and is not assignable or transferable. Your authorization to use the Tech Services is contingent on your continued compliance with these Terms.
- b. You will be required to create an account to use the Tech Services, and you are responsible for maintaining the confidentiality of your username and password. You may only access the Tech Services through the tablet device we provide, our website, or our mobile application, unless otherwise authorized by us in writing and you may only use that tablet within your brick and mortar restaurant space. The Tech Services may also be configured to print order details to a printer device which we may provide. Unless otherwise agreed in writing by us, you agree that hardware we provide to you in connection with the Tech Services, if any, is rented to you, not sold, and you may only use the hardware in connection with the Tech Services. You are solely responsible for damage, loss, repair, replacement and other costs if you do not return the hardware in its original condition, normal wear and tear excepted.
- c. We may from time to time modify or improve the Tech Services or add new features or functionality to the Tech Services. We may suspend Tech Services if reasonably necessary for an emergency situation or to stop potential harm, loss or damage to us or the Tech Services or other related systems. Any such suspension will be to the minimum extent and for the shortest duration required to: (a) prevent or terminate the offending use, (b) prevent or resolve the emergency situation, or (c) comply with applicable law.
- 3. Other Rights and Restrictions
- b. The Tech Services, including its “look and feel”, content, software, technology and applicable documentation, are and will remain the exclusive property of us and our licensors and are protected under the laws of the United States and other countries, and we hereby reserve all rights related to the Tech Services. You agree to not let anyone else use the Tech Services or any hardware we provide, and you may not copy, modify, distribute, sell, or lease any part of the Tech Services or hardware. You agree to not reverse engineer or attempt to extract any of the source code of the Tech Services unless we agree in writing or you are allowed to do so by applicable law. You may only access and use the Tech Services for lawful purposes consistent with the purposes for which we intend it to be used.
- c. At your sole option, you may provide feedback or suggestions about the Tech Services to us, and if you do provide such feedback or suggestions, then you agree that we may freely use and exploit such feedback and suggestions for any purpose and without any obligation to you. You agree that we may use your name and logo in connection with supporting and marketing our Tech Services, provided that you may request the removal of your name and logo at any time by sending us an email at email@example.com.
- 4. Third Party Vendors
- a. In order to provide you with the Tech Services, we need to access your accounts with certain Third Party Vendors. As such, you appoint us as your agent with authorization to access and use your accounts with Third Party Vendors and Your Data for the purpose of providing you with the Tech Services, and you agree to provide your account login information for such purposes. You also authorize us to access and use information that relates to you or your relationship with the Third Party Vendors and you authorize such Third Party Vendors to disclose Your Data to us. You hereby grant us and our affiliates a nonexclusive, perpetual right to use Your Data and the other information you may enter, upload or make available through the Tech Services to improve our and our affiliates’ products and services and perform relevant industry trend analyses during and after the term of these Terms. We may also aggregate or de-identify Your Data in order to share relevant industry trends with third parties. In connection with your use of the Tech Services, we may access or store personal information (as defined under the California Consumer Privacy Act of 2018 (“CCPA”)) contained in Your Data in multiple countries, including countries outside of your own country, to the extent permitted by Applicable Law. We are considered a “service provider” under the CCPA and will not: (x) sell Your personal information; (y) retain, use or disclose any of Your personal information for any purpose other than for the specific purpose of providing the services or as otherwise permitted under the CCPA; or (z) retain, use or disclose Your personal information outside of our direct business relationship.
- 5. Fees and Payment. You agree to pay us the Fees in accordance with these Terms and any Order Form, as applicable. Subject to your termination rights below, we may modify the Fees at any time with at least 30 days advance notice of any increase. Unless otherwise stated, all Fees are due to us in U.S. dollars and are nonrefundable. You agree to pay all taxes due for the Tech Services, except for taxes on our income. If your payment is overdue, we may (i) charge interest on the overdue amount at 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full, and (ii) suspend or terminate the Tech Services. You agree that we may use a third party provider to process the Fees.
- 6. Term and Termination.
- a. If you entered into an Order Form, your use of the Tech Services is authorized for the time period specified in the Order Form. If you did not enter into an Order Form, or if the time period in your Order Form expires, your use of the Tech Services is authorized on an ongoing month to month basis.
- b. If your Order Form term is within 30 days of expiration, or you are using the Tech Services on a month to month basis, and in either case you no longer want to use the Tech Services, you can terminate the Terms for any or no reason by providing us with at least 30 days notice by sending an email to firstname.lastname@example.org. After the 30 day notice period you will no longer be authorized to use the Tech Services.
- c. A party may terminate these Terms upon written notice to the other party in the event that the other party is in breach of these Terms and does not cure such breach within 30 days, or 10 days for non-payment of notice to the other party thereof. We may terminate these Terms immediately upon written notice to you (i) for your breach of Section 2(a)-(b) or (ii) to comply with a legal requirement or court order, in our reasonable discretion. You may terminate these Terms upon written notice to us in the event that we modify the Terms or Fees and you do not agree to such modifications.
- d. Outstanding payment obligations and the following Sections will survive termination of these Terms: Sections 1, 3, 5-10. Upon termination of these Terms, you agree to immediately return any of our hardware in your possession or control. You agree that we can continue to charge you for the Tech Services until we receive your returned hardware.
- 7. Warranties and Disclaimers.
- a. Each party represents and warrants that it: (a) has full power and authority to enter into these Terms; and (b) will comply with all laws applicable to the provision or use of the Tech Services, as applicable. You further represent and warrant that (a) if you upload any content (including menu items or pictures) to the Tech Services you have all necessary rights to use such content and doing so will not infringe or misappropriate the intellectual property rights of a third party, (b) the individual signing the Order Form or clicking to accept the Terms has the right to bind Customer, (c) you will not violate any obligations to any third party by entering into and performing under the Terms (e.g. if you have chosen to use one or more Third Party Vendors, you do not maintain an exclusive contractual relationship with such Third Party Vendor), (d) you have the right to use, and allow our use of, Your Data and your authorized Third Party Vendor accounts, including the right to appoint us as your agent to access and use your accounts and Your Data as described in these Terms, and (e) if applicable (e.g. required by the Third Party Vendor), you have provided any notices, obtained any consents and satisfied any other requirements under applicable law and any Third Party Vendor agreement, that are necessary for you and us to access and use Your Data as set forth herein.
- b. Your access and use of the Tech Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Tech Services, other actions that we may elect to take, or issues with Third Party Vendors. You agree that we are not liable to you or to any third party for any interruption, modification, suspension, or discontinuance of the Tech Services. We do not make any other commitments or warranties about our Tech Services or how they will perform for you other than as expressly stated in these Terms, unless required under applicable law. We do not provide any implied warranties, such as the implied warranties of non-infringement, merchantability, and fitness for a particular purpose, unless required under applicable law.
- 8. Indemnity and Limits of Liability.
- a. Unless prohibited by applicable law, you agree to indemnify us and our affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (a) your breach of these Terms or any agreement with a Third Party Vendor; (b) Your Data or the content you provide us; (c) unlawful use of the Tech Services; or (d) your gross negligence or willful misconduct.
- b. You agree that our total liability arising out of or relating to these Terms and your use of the Tech Services, in the aggregate, is limited to the lesser of (1) US$1,000 or (2) the fees that you paid to use the Tech Services in the 12 months before the event giving rise to the liability. You agree that we won’t be responsible for your loss of profits, revenues, business opportunities, goodwill, or anticipated savings, indirect or consequential loss, or punitive damages in connection with your use of the Tech Services or these Terms. This limitation will not apply to liability due to our gross negligence, willful misconduct, or that otherwise can not be limited or excluded by applicable law.
10. Arbitration. Except for claims or disputes related to protecting a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to these Terms or your use of the Tech Services will be settled by binding arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which they deem proper in the circumstances, only to the extent permitted by these Terms, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees and expenses. Each party agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding between you and us and/or our affiliates will not be consolidated with any other arbitration proceeding involving us or any other person or entity.
(i) We are constantly looking to evolve and create new products and services to make your use of the Tech Services more efficient and useful. As such, we developed new products and services (collectively, “Additional Products”) which you can use in accordance with the terms below.
(ii) Additional Products You Have Elected to Use
- Website Services. The Website Services allows you to use the Tech Services in a self-serve manner to develop and create a website. Website Services shall be considered a Tech Service.
- Intellectual Property
- Users of the Website Services (whether you or others) may provide us with content, including without limitation text, photos, images, music, audio, videos, fonts, logos, stickers, code and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Tech Services as described in this Agreement. User Content includes without limitation content you post to the Website Services.
- When you provide User Content via the Services, you grant us (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Tech Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Tech Services.
- Any and all Order Data made through the Website Services shall be owned by us. We grant you a limited, non-exclusive, royalty free, revocable right to use the Order Data (with exception to any Personal Information) solely as needed to perform the services requested by the end user or end customer. “Order Data” shall mean any and all end user order information including without limitation Personal Information. “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).
- You represent and warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license your User Content via the Tech Services and in the manner set forth in this Agreement. If we use your User Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Tech Services may be protected by others' intellectual property, trade secret or other rights. Please don't copy, upload, download or share content unless you have the right to do so.
- Privacy. In certain circumstances you may receive Personal Information to perform the Services. However, except as otherwise authorized in writing or as required to fulfill the order, you agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Order Data. If you become aware of any unauthorized access to Personal Information, you will immediately notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us and will be responsible for damages resulting from your failure to comply. You may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Website Services; damage, destroy or impede the services provided through the Website Services; transmit injurious code; or bypass or breach any security protection on the Website Services. Both parties agree to the terms of Exhibit A to this Addendum.
- Indemnifications. Unless prohibited by applicable law, you agree to indemnify and defend us and our affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (i) any infringement or misappropriation of the intellectual property of any third party for any User Content you post on the Website Services, and (ii) violation of any applicable laws (including any data privacy laws and Tax laws).
- You are responsible and liable for determining any and all Taxes required to be assessed, incurred, collected, paid or withheld for all sales and other transactions arising from the use of the Tech Services. You also are responsible and liable for (a) determining whether Taxes apply to your sale of menu items, products and services, payments received, and any other transactions arising from or out of your use of the Tech Services, and (b) calculating, collecting, reporting or remitting any Taxes to the appropriate tax and revenue authorities. Any guidance, estimates, or other information provided on the Tech Services related to Taxes is not intended to be tax advice and purely for informational purposes and shall not be taken as tax advice. We specifically disclaim any and all liability for such Taxes.
- We may be obligated under applicable laws to report certain information to tax and revenue authorities (“Tax Information”) and/or you with respect to your use of the Tech Services. Upon request, you shall provide us with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law. If you use our Tech Services you acknowledge that we may report to the applicable tax and revenue authorities the required Tax Information (including the total amount of payments you received during the relevant reporting period). We also may, but are not obligated to, send to you the Tax Information reported.
- Taxes include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods and services tax or similar taxes, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority (“Taxes”).
- Limitations. You represent, warrant, and agree that you will not otherwise use the Website Services in a manner that:
- Violates any law, ordinance, or regulation, including privacy, employment, and other laws referenced above;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of your account or anyone else’s (such as allowing someone else to log in to the Website Services as you);
- Attempts, in any manner, to obtain the password, account, or other security information from any other user;
- Violates the security of any computer network, or cracks any passwords or security encryption codes;
- “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Website Services (through use of manual or automated means);
(iii) In addition, we may create and require compliance with additional policies, rules and regulations when participating in the Additional Products. We will provide you with 3 days prior written notice before such policies, rules, or regulations take into effect. Notwithstanding anything to the contrary, we may modify or discontinue the Additional Products at any time, and we can suspend or terminate your use of the Additional Products at any time with or without notice to you. You may terminate this Addendum (but not the Agreement) by providing three (3) days written notice to us.
(iv) IT IS UNDERSTOOD THAT THE ADDITIONAL PRODUCTS MAY CONTAIN ERRORS, MAY NOT FUNCTION PROPERLY, AND ARE PROVIDED FOR LIMITED TESTING AND FEEDBACK ONLY. THE ADDITIONAL PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THE ADDITIONAL PRODUCTS IS AT YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE ADDITIONAL PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) to any agreement that links to this DPA (the “Agreement”) relating to certain Services entered into between Otter (“Otter”) and the customer as described in the Agreement (“Vendor”), to reflect the parties’ agreement about the Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws. References to the Agreement will be construed as including without limitation this DPA. In event of any conflict or inconsistency between the provisions of the Agreement and DPA, the terms of this DPA shall prevail.
- Definitions. “Data Protection Laws” means all applicable laws data privacy and security laws and regulations, including, but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), California Consumer Privacy Act of 2018 (“CCPA”), Personal Data Protection Act 2012 (Singapore) and the Privacy Act 1998 (Cth) (“Australian Privacy Principles”); “Personal Data” means information relating to an identified or identifiable natural person, or as otherwise defined by Data Protection Laws; “Data Subject,” “Controller,” “Processor,” and Processing” shall have the meaning as defined under the GDPR, or the applicable Data Protection Laws. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.
- Processing of Personal Data.
- Roles of the Parties. The parties acknowledge and agree that, each party is an independent controller in common and not a joint controller. Each party shall comply with Data Protection Laws and its obligations in connection with the processing of Personal Data. Data Protection Laws may in the future change, or be scheduled to change. In such instances, upon the reasonable request by either party, the parties shall promptly meet to discuss, agree and document appropriate changes to the DPA.
- Data Requests and Complaints. Each party may deal at its discretion with all data subject requests and complaints that it receives directly from a Data Subject or the person making the complaint. Each party will also agree to provide reasonable and prompt assistance as reasonably needed to respond to such inquiries or to other complaints received by the Data Subject. The Vendor shall notify Otter of data subject requests within 3 days of receipt by the Vendor of such data subject request or complaint involving Otter.
- Security. Vendor will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the Data Subjects. In assessing the appropriate level of security, Vendor shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed. Upon becoming aware of a Personal Data Breach, if the Vendor is obligated by Data Protection Laws, Vendor will notify Otter without undue delay (but not later than 24 hrs. after becoming aware of the Personal Data Breach) and will provide information and cooperation relating to the Personal Data Breach as reasonably requested by Otter. Such information will be considered the Confidential Information of Vendor. “Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Otter Personal Data.
- Data Transfer to Third Parties. In certain circumstances, Vendor may request Otter assist in the transferring of Personal Data to Vendor processors or service providers. In such circumstances, Vendor hereby directs Otter to process and transfer such Personal Data to third parties of Vendor’s choosing. If required under Data Protection Laws, such measures may include (without limitation) transferring Personal Data to a recipient in a country that provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission. In addition, Vendor hereby authorizes, appoints, and directs Otter, as agent for Vendor, to enter into Controller to Processor Standard Contractual Clauses or any other legal document reasonably necessary for Otter to provide Services.
- Limitation of Liability. To the fullest extent allowed under any Data Protection Law, each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the “Limits of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, Vendor’s and its affiliates’ total liability for all claims from the Otter arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA. If required by Data Protection Laws, Vendor shall be liable for the acts and omissions of its sub-processors to the same extent Vendor would be liable if performing the services of each sub-processor directly under the terms of this DPA.
- Governing Law. The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws.