Last updated: September 5, 2024
AGREEMENT TO OUR LEGAL TERMS
These Tarro Terms of Service (together with the Order Form, this “Agreement”) set forth the terms pursuant to which SKT Technologies Inc. (“Tarro”) will provide the restaurant(s) listed in an applicable Order Form (the “Restaurant”, or “you”) the products and services, as set forth in the Order Form (the “Services”). Tarro and Restaurant may be referred to herein collectively as the “Parties” or individually as a “Party”.
By executing an Order Form, or otherwise using the Services, Restaurant hereby accepts and agrees to the terms and conditions to this Agreement. If you are accepting this Agreement on behalf of Restaurant, you represent and warrant that you have the authority to bind Restaurant to the terms and conditions of this Agreement.
RESTAURANT ACKNOWLEDGES AND AGREES THAT TARRO FACILITATES FOOD AND BEVERAGE ORDERING AND DELIVERY. TARRO IS NOT A FOOD OR BEVERAGE DELIVERY SERVICE AND SHALL NOT BE DEEMED A FOOD DELIVERY SERVICE AS THAT TERM IS DEFINED UNDER ANY FEDERAL, STATE. OR LOCAL LAW, RULE, REGULATION, OR ORDINANCE.
Tarro may update or modify this Agreement at any time without prior notice, and such changes will be effective immediately upon being posted. In the case of material changes to this Agreement, Tarro will make reasonable efforts to notify Restaurant of the change, such as through sending an email to the address used to register for the Services, through a notice in Restaurant’s account, an in-app notification, or other similar mechanism.
1. AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective, and you agree to be bound by this Agreement, the Order Form Date specified on the applicable Order Form incorporating this Agreement (“Effective Date”). If you are accepting this Agreement on behalf of Restaurant, you represent and warrant that you have the authority to bind Restaurant to the terms and conditions of this Agreement.
2. DEFINITIONS.
(a) “Authorized Users” means an individual who is authorized by Restaurant to use the Services or for whom Restaurant has ordered the Services. Authorized Users may include, for example, Restaurant employees, agents, consultants, or contractors.
(b) “Consumer Data” means data that identifies, relates to, or is linked or reasonably linkable to Consumers (including any data that is defined as “personally identifiable information,” “personal data,” “personal information” or any similar term under applicable privacy and data security laws) collected by Tarro in connection with the applicable Services.
(c) “Consumers” means end users who place Orders or otherwise communicate with Tarro (on Restaurant’s behalf) in Tarro’s performance of the Services.
(d) “Documentation” means the documentation relating to the Services if and as provided by Tarro to Restaurant (including any revised versions thereof), which may be updated from time to time upon notice to Restaurant.
(e) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(f) “Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Services to be provided by Tarro.
(g) “Orders” means a Consumer’s food and beverage order from Restaurant as facilitated by Tarro.
(h) “Services” means the food and beverage order management and fulfillment services for restaurants, that allows Consumers to place orders with Restaurant through Tarro, as further described in the applicable Order Form and as more particularly described or identified in the applicable Order Form.
(i) “Tarro IP” means the Services, the Platform and the underlying software provided in conjunction with the Services and the Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services and the Platform and Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
PRIVACY NOTICE.
Please review Tarro’s Privacy Notice, available at [https://www.tarro.com/privacy-policy] which also governs how Tarro collects and uses Restaurant’s and Authorized Users’ information.
4. SERVICES; ACCESS AND USE.
(a) Services. Subject to the terms and conditions of this Agreement, Tarro will provide Restaurant with the Services listed in the Order Form.
(b) Order Processing. Restaurant agrees to promptly provide Tarro with all information that Tarro reasonably requires to provide the Services. Without limitation, Restaurant shall provide to Tarro and maintain the accuracy of (i) the items offered by Restaurant to Consumers; (ii) the prices of items offered by Restaurant to Consumers, including any applicable fees or taxes; (iii) the descriptions of any items offered by Restaurant to Consumers; and (iv) Restaurant’s hours of operation, including changes due to holidays or other events (collectively, the “Specifications”). The Specifications must be at least as favorable to the Consumer as that which is available for Restaurant’s standard takeout menu or as offered by Restaurant to any Consumer either directly or through any other third party ordering, pickup or delivery service. Restaurant is solely responsible for accuracy of the Specifications. Restaurant further agrees it will accept and timely honor all Orders placed by Consumers on the Platform, and Restaurant is solely responsible to Consumers for any delay or errors that may occur in connection with any Orders. If Restaurant collects tips from Consumers through the Platform, Restaurant represents and warrants it will distribute such tips in accordance with applicable law.
(c) Prohibition on Sale of Alcohol and Marijuana. Restaurant may not offer alcohol through the Platform (as defined below) without Tarro’s prior written consent. In the event that Tarro agrees in writing that Restaurant is allowed to offer alcoholic beverages via the Platform, Restaurant will do so in compliance with all applicable laws, rules, and regulations, and subject to the terms and conditions of this Agreement. Restaurant shall, and will be solely responsible to ensure, that the recipient is of age to purchase alcohol. Alcoholic beverages may not, under any circumstances, be delivered through contactless delivery. Restaurant acknowledges and agrees that all sales of alcohol made through the Platform are processed and made by Restaurant, and Tarro is not a party to the transaction between Restaurant and the Consumer for the sale of alcohol. Restaurant, and not Tarro, shall be responsible for the delivery of any Orders containing alcohol. Restaurant may not offer marijuana or any cannabis-based products via the Platform.
(d) Communications With Third Parties. Restaurant may now or in the future have access to outbound communications tools made available by Tarro that permit Restaurant to draft, schedule, and/or transmit outbound communications to Consumers and other third parties, including phone calls, recorded phone messages, text messages, facsimile messages, and electronic mail (collectively, “Communications Tools”). Restaurant shall not use the Communications Tools or any Services provided by Tarro in a manner that violates (i) any law, rule, or regulation, including the Telephone Consumer Protection Act and the CAN-SPAM Act, or (ii) any law, rule, or regulation requiring that consent be obtained prior to transmitting, recording, collecting, or monitoring data or communications, or (iii) any law, rule, or regulation requiring compliance with opt-out requests or “do-not-contact” lists for any data or communications. Restaurant expressly acknowledges and agrees that applicable law may restrict Restaurant’s use of the Communications Tools, for instance by requiring Restaurant to obtain legally sufficient consent from the Consumer or other recipient prior to transmitting outbound communications, or by requiring Restaurant to honor “opt-outs” from further communications. Restaurant shall be solely responsible for ensuring that Restaurant’s use of the Communications Tools complies with applicable law, including without limitation obtaining and retaining records of any required consent to communications and honoring “opt-out” requests.
(e) Third-Party Services. Certain features and functionalities within the Services may allow Restaurant and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”), such as order fulfillment and delivery services from third party providers. Tarro does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Restaurant is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Restaurant to use the Third-Party Services in connection with the Services.
(f) Internet Connectivity. Restaurant is responsible for obtaining and maintaining a high-speed internet connection and all related software, hardware (including network systems) and internet service provider relationships necessary or appropriate for Restaurant to properly access the Platform and the Services, including when utilizing Equipment provided by Tarro. Tarro has no responsibility or liability under this Agreement for any unavailability or failure of, or non-conformity or defect in the Services, Platform or Equipment that is caused by or related in any manner to any failure of Restaurant to obtain and maintain all such internet connectivity and related software, hardware, equipment and relationships.
(f) Additional Terms and Conditions for Phone Management Services. Restaurant understands that phone carriers may charge for certain communications, such as SMS messages or phone calls, and Tarro is not responsible for any such charges.
(h) Consumer Support. Unless otherwise specified in an Order Form, Restaurant is solely responsible for:
(i) Fulfilling and delivering Orders;
(ii) Refunding Orders;
(iii) Customer service;
(iv) Accuracy of any data (including Specifications) Restaurant provides to Tarro;
(v) Paying taxes, fees, and costs associated with Restaurant’s business, including appropriate charging of taxes to Restaurant’s customers;
(vi) Reporting, collection, and remitting obligations to applicable governmental authorities in connection with Restaurant’s business;
(vii) Handling disputes with Restaurant’s customers (including Consumers), including disputes related to chargebacks;
(viii) Notifying Restaurant’s customers or end users (including Consumers) of taxes or associated obligations; and
(ix) Restaurant’s collection, handling, and use of any cardholder data, customer information, and other point of sale information collected.
(i) Compliance. Restaurant shall remain solely responsible for compliance with all applicable laws relating to its transactions with its customers (including Consumers), including without limitation any tax laws and card association regulations.
5. SOFTWARE
(a) Grant of Rights. Subject to the terms and conditions of this Agreement, Tarro hereby grants Restaurant a limited, non-exclusive, non-transferable right to use (and permit Authorized Users to and use) the Platform in accordance with the Documentation and the terms of this Agreement.
(b) Use Restrictions. Restaurant will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Platform; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Platform to any other person or entity, or otherwise allow any person or entity to use the Platform for any purpose other than for the benefit of Restaurant in accordance with this Agreement; (iv) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; or (v) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Tarro for use expressly for such purposes.
(c) Authorized Users. Restaurant may permit Authorized Users to use the Platform in accordance with the Documentation and the terms of this Agreement, provided that Restaurant is responsible for all acts or omissions by its Authorized Users in connection with their use of the Platform and their compliance with the terms and conditions of this Agreement.
6. PROHIBITED ACTIVITIES
(a) General. Tarro will provide Restaurant with the equipment specified in the applicable Order Form, as necessary for Restaurant to use and benefit from the Services, and which may include, without limitation printers, call routing hardware, tablets or other means of receiving food or beverage orders from Consumers (collectively, “Equipment”). Equipment is available for purchase or rent by Restaurant. Any Equipment purchased by Restaurant from Tarro will be shipped to Restaurant EX WORKS (Incoterms 2020).
(b) Rented Equipment. Any Equipment rented by Restaurant from Tarro will remain Tarro’s sole property and Restaurant shall only use such rented Equipment to receive the Services. Restaurant shall at all times protect and defend, at Restaurant’s own cost and expense, the title and interest of Tarro from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of Restaurant and keep such rented Equipment free and clear from all such claims, liens, processes, and any other encumbrance. Restaurant shall not sublease, transfer, or dispose of any rented Equipment or grant or permit any lien on them. Restaurant agrees that it will not mortgage or otherwise encumber any rented Equipment. All rented Equipment shall be located in the Restaurant’s facility, and neither Restaurant, nor its employees shall remove, or permit (by act or omission) the rented Equipment to be removed from the Restaurant’s facility without the prior written consent of Tarro.
(c) Restrictions on Use. Restaurant’s use of the Equipment is governed by the terms and conditions of this Agreement and any other instructions that Tarro may communicate to Restaurant from time to time. Restaurant is solely responsible for any use of the Equipment not expressly contemplated in this Agreement. Restaurant will not upload, download or otherwise transmit any material on the Equipment that contains viruses or any other computer code, files or programs that could disable, overburden, impair the proper working order, interrupt, destroy or limit the functionality of the Equipment or the Services or Platform. The Equipment shall remain personal property, regardless of whether or not it is affixed to any real property at Restaurant’s location.
(d) Delivery. Tarro will use commercially reasonable efforts to meet the estimated delivery dates for Equipment specified in the applicable Order Form, but Restaurant hereby acknowledges that such dates are estimates only. Further, Tarro reserves the right to cancel or delay shipment of the Equipment if Restaurant fails to make any payment as provided in this Agreement, or otherwise fails to comply with the terms and conditions of this Agreement. Tarro will not be liable to Restaurant or to any other party for any delay in the delivery of the Equipment. Restaurant shall comply with any end user license agreements to which the Equipment is subject. Tarro may elect to replace any Equipment with such other Equipment as Tarro deems appropriate and Restaurant shall cooperate with Tarro with respect to such replacement, including, without limitation, returning Equipment to Tarro promptly following Tarro’s request.
(e) Equipment Fee. In exchange for the provision of the Equipment (whether rented or purchased) during the applicable Order Form Term, Restaurant will pay Tarro the amounts set forth in the applicable Order Form. Restaurant acknowledges that should this Agreement and/or any Order Form be terminated before the end of the Order Form Term of any applicable Order Form, Restaurant will not be refunded for any Equipment Fee already paid to Tarro pursuant to the applicable Order Form.
(f) Support. If the Equipment does not function as reasonably expected during the term of an active Order Form, Restaurant may contact Tarro support to resolve the issue. Restaurant agrees to reasonably cooperate with Tarro to troubleshoot the malfunctioning Equipment, including by telephonic support or in-person support. If Tarro determines, in its reasonable discretion, that the Equipment should be replaced, Tarro will ship replacement Equipment to Restaurant, subject to Restaurant’s compliance with the return procedure communicated by Tarro.
(g) Damage or Loss of Equipment. Restaurant shall take reasonable care of any Equipment, and Restaurant is solely responsible for any loss of the Equipment or any damage to the Equipment beyond normal wear and tear.
(i) If Tarro determines in its reasonable discretion that Restaurant’s violation of this obligation caused damage to any item of Equipment, then Tarro may charge Restaurant a refurbishment fee with respect to each such item of Equipment or such other amount no more than the cost of purchase of the item, as Tarro deems appropriate given the condition of such Equipment (the “Damaged Equipment Fee”).
(ii) Restaurant shall notify Tarro immediately if it learns that Equipment has been lost or stolen. If any item of Equipment is lost or stolen then Tarro may charge Restaurant a fee in the value of the replacement cost with respect to each such item of Equipment (“Lost Equipment Fee”).
(iii) Tarro may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility previously provided to Tarro for the amount of the Damaged Equipment Fee and Lost Equipment Fee, as applicable, or otherwise deduct such amount from any grand totals otherwise owed to Restaurant. Restaurant is responsible for all costs of shipping in connection with any repair or replacement of Equipment. For the avoidance of doubt, Tarro may charge Restaurant multiple fees pursuant to this Section and charging a fee under this Section does not preclude charging additional fees under this Section, or any other applicable Section of this Agreement, as determined appropriate by Tarro.
(iv) Return of Rented Equipment. Upon termination of the applicable Order Form or this Agreement for any reason, or as otherwise requested by Tarro, Restaurant shall promptly return to Tarro any Equipment rented from Tarro, in good working order (at Restaurant’s expense), by delivering the Equipment in a manner (packed properly and in accordance with Tarro’ instructions) and by such date as Tarro shall specify. If Restaurant fails to return any item of Equipment to Tarro in good working order by such date as requested by Tarro then Tarro further reserves the right to charge Restaurant a fee equivalent to the replacement cost of the equityment with respect to each such item of Equipment (“Failure to Return Fee”). Tarro may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility previously provided to Tarro for the amount of the Restocking Fee and/or the Failure to Return Fee, as applicable, or otherwise deduct such amount from any final totals otherwise owed to Restaurant. Restaurant shall ensure that the Equipment will be returned to Tarro free and clear of all claims, liens, processes, and any other encumbrances.
7. BETA SERVICES.
(a) Beta Services. Tarro may, but does not have the obligation to, offer Restaurant to try Beta Services at no additional charge. Restaurant may accept or decline any such trial in Restaurant’s sole discretion. “Beta Services” means Services which are not generally available to Tarro’s clients and/or which are described as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes only, and not for production use. They are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms.
(b) Term and Availability of Beta Services. Unless otherwise stated in an Order Form, or in the specific terms applicable to such Beta Services, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Tarro may discontinue Beta Services at any time in Tarro’s sole discretion and may never make them generally available.
(c) No Liability. Tarro will have no liability for any harm or damage arising out of or in connection with the Beta Services, and Restaurant accepts all risk associated with its use of the Beta Services.
8. FEES.
(a) Fees. In payment for Restaurant’s access to the Services during the Term, Restaurant shall pay Tarro the non-refundable monthly fees set forth on the applicable Order Form (the “Fees”).
(b) Invoices and Payments. Except as otherwise provided in the applicable Order Form, Tarro will issue monthly invoices to Restaurant during the Term, and Restaurant will pay all amounts set forth on any such invoice no later than seven (7) days after the date of such invoice. Notwithstanding the foregoing, if Restaurant has signed up for automatic billing on the Order Form, Tarro or its authorized Payment Processor (as defined below) will charge Restaurant’s selected payment method (such as ACH) for any Fees on the applicable payment date, including any applicable taxes, and all additional amounts due under Section 6. If Tarro cannot charge Restaurant’s selected payment method for any reason (such as expiration or insufficient funds), Restaurant remains responsible for any uncollected amounts, and Tarro will attempt to charge the payment method again as Restaurant may update its payment method information.
(c) Interest; Non-Payment. If Restaurant fails to make any payment when due, late charges will accrue at the rate of $25 per month or, if lower, the highest rate permitted by applicable law. Tarro may suspend Services until all payments are made in full.
(d) Taxes. Restaurant is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Restaurant to Tarro hereunder, other than any taxes imposed on Tarro’s income.
(e) PROPRIETARY RIGHTS AND DATA Restaurant Materials. Restaurant hereby grants Tarro and its licensors a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Restaurant Materials (as defined below), in connection with Tarro’s provision of the Services, to disclose that Tarro provides services to Restaurant, to market and promote Restaurant’s products and other promotional activities undertaken by Tarro relating to the Services, and for the purpose of creating or developing Aggregate Data (as defined below). As between Restaurant and Tarro, Restaurant owns and retains all right, title and interest in and to all Restaurant Materials. Restaurant is solely responsible for obtaining all necessary rights, permissions, consents, and licenses necessary for Tarro to use third party materials contained in Restaurant Materials in accordance with this Agreement, and is solely responsible for the accuracy of all Restaurant Materials.
(f) Definitions. “Restaurant Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Restaurant through the Services or to Tarro in connection with Restaurant’s use of the Services, including, without limitation, product listings, menus, photographs or images, customer lists, branding, trademarks, advertising content, marketing materials, and any other materials owned by or licensed to Restaurant, but excluding, for clarity, Consumer Data, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Tarro and made available through or in connection with the Services. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Restaurant Materials; or (ii) Restaurant’s and/or its Authorized Users’ use of the Services (including the Platform), including, without limitation, any usage data or trends with respect to the Services.
(g) Ownership of Tarro IP. Subject to the limited rights expressly granted hereunder, Tarro reserves and, as between the Parties will solely own, the Tarro IP and all rights, title and interest in and to the Tarro IP. No rights are granted to Restaurant hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(h) Feedback. From time-to-time Restaurant or its employees, contractors, representatives and other Authorized Users may provide Tarro with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Restaurant hereby grants Tarro a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Tarro’s business purposes, including, the testing, development, maintenance and improvement of the Services and the Platform. For clarity, Feedback is not considered Confidential Information (as defined below).
(i) Consumer Data. Tarro will not be liable for any inaccuracies in any Consumer Data collected in connection with this Agreement, and Restaurant is solely responsible for obtaining all necessary rights, permissions, consents, and licenses necessary for Tarro to use Consumer Data in accordance with this Agreement. For purposes of applicable privacy and data security laws, Tarro acts as a “processor” or “service provider” of Consumer Data that it processes in connection with the Tarro payment services. Tarro has engaged a payment processor (“Payment Processor”) that conducts payment processing of transactions submitted through Tarro payment services. Restaurant understands and agrees that Tarro may share any of Restaurant’s information with Tarro’s Payment Processor. Tarro may aggregate, anonymize, or de-identify Consumer Data such that it no longer constitutes Consumer Data and process such information for its own lawful business purposes, including without limitation for purposes of creating data insights and analytics. In connection with its access and use of Consumer Data, Restaurant will at all times: (i) comply with the terms and conditions of this Agreement, applicable privacy and data security laws (including providing the same level of data protection as required of Tarro under applicable privacy and data security laws), and Tarro’s privacy policy available at [https://www.tarro.com/privacy-policy] and (ii) limit access to Authorized Users and third parties who have a need to know such Consumer Data and are obligated (in the case of third parties, contractually) to maintain the privacy, security, and confidentiality of such Consumer Data. Restaurant will be solely liable for any access, collection or other use or misuse of any Consumer Data by Restaurant, its Authorized Users or any third party to the extent such third party’s access, collection or use was made possible by Restaurant. In addition to the terms in this Agreement, Restaurant otherwise agrees to comply with all applicable laws in Restaurant’s use of Tarro payment services including, without limitation, any consumer protection and privacy laws.
9. SERVICES MANAGEMENT
(a) Confidentiality. “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Tarro. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Tarro may use and modify Confidential Information of Restaurant in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required 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. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
(c) Data Security. Restaurant shall implement and maintain reasonable and appropriate physical, technical, and organizational safeguards to protect Consumer Data that it accesses against loss, theft, misuse, or unauthorized access, use, modification, alteration, destruction or disclosure (“Security Incident”). Restaurant will promptly (i.e., within 48 hours) notify Tarro in writing in the event any such Consumer Data is subject to a Security Incident, and such notice shall include, at a minimum: (i) a description of the Security Incident, including the types of information impacted by the Security Incident; (ii) steps Restaurant has taken and will take to mitigate the impact of the Security Incident and remediate the causes of the Security Incident; and (iii) any other information reasonably requested by Tarro. Restaurant shall provide Tarro with reasonable assistance in responding to such Security Incident, including with respect to notifying impacted Consumers and governmental authorities.
PUBLICITY. Either Party may, with the other Party’s prior written consent (which will not be unreasonably withheld), use or refer to the other Party’s name, trademarks, service marks, or logos in any marketing materials, business development activities, press releases or other publicity-related matter for the purpose of marketing, publicizing or promoting a Party’s business.
10. PRIVACY POLICY
(a) Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.
(b) Restaurant Additional Representations. Restaurant further represents and warrants that:
(i) Tarro’s use of the Restaurant Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any Intellectual Property Rights or other rights of any third party or cause a breach of any agreement or obligations between Restaurant and any third-party;
(ii) any sales transaction submitted through the Services (A) is genuine and arises from a genuine sale or service that the Restaurant directly sold or provided; (B) accurately describes the goods or services sold and delivered to a customer; and (C) represents the correct amount of goods or services purchased from the Restaurant;
(iii) Restaurant will fulfill all of its obligations to each Consumer for whom a transaction is submitted through the Services;
(iv) Restaurant will resolve any dispute or complaint from a customer directly with that customer (including all Consumers);
(v) Any transactions or other information submitted through Tarro payment services complies with all laws and regulations applicable to Restaurant, including tax laws and regulations and card association rules and regulations;
(vi) Except in the ordinary course of business, no sales transaction submitted by Restaurant through the Services will represent a sale to any principal, partner, proprietor, or owner of the Restaurant;
Restaurant will not use Tarro payment services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use the Services; and
(viii) Restaurant is not engaged in and will not accept payment for any illegal activity.
(c) Disclaimer. THE SERVICES, PLATFORM, EQUIPMENT AND OTHER TARRO IP ARE PROVIDED ON AN “AS IS” BASIS, AND TARRO MAKES NO WARRANTIES OR REPRESENTATIONS TO RESTAURANT OR TO ANY OTHER PARTY REGARDING THE TARRO IP, THE SERVICES, PLATFORM, EQUIPMENT OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TARRO WILL NOT BE LIABLE FOR (A) ANY FAILURE, DISRUPTION, OR MALFUNCTION OF THE EQUIPMENT OR SERVICES, OR ANY COMMUNICATIONS NETWORK, FACILITY OR EQUIPMENT BEYOND TARRO'S REASONABLE CONTROL; (B) RESTAURANT’S FAILED ATTEMPTS TO ACCESS ANY PAYMENT SERVICES OR TO COMPLETE TRANSACTIONS VIA THE SERVICES; OR (C) ANY FAILURE TO TRANSMIT, OBTAIN OR COLLECT DATA OR FOR HUMAN, MACHINE OR SOFTWARE ERRORS OR FAULTY OR ERRONEOUS INPUT BY RESTAURANT.
11. TERM AND TERMINATION
(a) Term. This Agreement shall commence on the Effective Date and will remain in effect as specified on the applicable Order Form (the “Term”).
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Further, either Party may terminate this Agreement and any Order Form(s) for its convenience at any time, by a Party giving the other Party thirty (30) days’ notice.
(c) Survival. This Section 13(c) and Sections 2,5(b),6(c), 6(g), 6(h), 7(c) ,8, 9, 10, 12, 13(d), 14, 15 and 16 shall survive any termination or expiration of this Agreement.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 5(a) and Section 6 will terminate; and (ii) Restaurant will return or destroy, at Tarro’s sole option, all Tarro Confidential Information in its possession or control, including permanent removal of such Tarro Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Restaurant’s possession or under Restaurant’s control, and at Tarro’s request, certify in writing to Tarro that the Tarro Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Restaurant’s obligation to pay all Fees and other amounts that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Restaurant to any refund.
12. LIMITATION OF LIABILITY.
(a) Limitation of Liability. EXCEPT FOR (I) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (II) BREACH OF RESTAURANT’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, 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, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(b) Total Liability. IN NO EVENT WILL TARRO’S TOTAL CUMULATIVE LIABILITY TO RESTAURANT OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY RESTAURANT TO WONDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY TARRO TO RESTAURANT FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER
13. INDEMNIFICATION.
(a) Indemnification by Tarro. Subject to Section 15(b), Tarro will defend Restaurant against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Restaurant’s receipt of the Services (including use of the Platform) infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Restaurant against any damages and costs awarded against Restaurant or agreed in settlement by Tarro (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Tarro’s obligations under Section 15(a) will not apply if the underlying Claim arises from or as a result of: (i) Restaurant’s breach of this Agreement, negligence, willful misconduct or fraud; or (ii) any Restaurant Materials.
(c) Indemnification by Restaurant. Restaurant will defend, indemnify and hold harmless Tarro from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Tarro, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Tarro that: (i) the Restaurant Materials or its use by Tarro in accordance with this Agreement infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Restaurant’s or an Authorized User’s use of the Services, Equipment or Platform; (iii) is based on the manufacture, sale, distribution or marketing of any Restaurant’s products or services; (iv) is based on Restaurant’s violation of any of this Agreement; (v) any dispute or issue between Restaurant and any third party, including any Consumer; or (vi) Restaurant’s violation of any applicable law.
14. GENERAL.
(a) Entire Agreement. This Agreement, including its exhibits and Order Forms issued hereunder, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
(b) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, Tarro may assign or transfer this Agreement to a third party that succeeds to all or substantially all of Tarro’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(c) Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing and if intended for Restaurant shall be directed to Restaurant’s address set forth on the Order Form or such other address provided by Restaurant to Tarro pursuant to this Notice provision and if intended for Tarro shall be directed to legal@tarro.com or such other address provided by Tarro to Restaurant and such notice will be deemed to have been duly given (i) when received, if personally delivered; (ii) the first business day after sending by email; (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
(d) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
(e) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(f) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(g) Export Regulation. Restaurant will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.
(h) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Southern District of New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.