ezCater & Catering Partner Terms and Conditions
Effective June 1, 2023
THESE EZCATER & CATERING PARTNER TERMS AND CONDITIONS (“TS&CS”) TOGETHER WITH ANY OTHER TERMS REFERENCED IN THESE TS&CS CONSTITUTE THE EZCATER SERVICES AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU”, “YOUR”, OR A “PARTY”) AND EZCATER, INC. (“EZCATER”, “WE”, “OUR”, “US”, OR A “PARTY”, AND TOGETHER WITH YOU, THE “PARTIES”). THESE TS&CS APPLY TO YOUR USE OF OUR SERVICES, PLEASE READ THEM CAREFULLY.
1. Covered Services; Fees. We will provide you the services you choose to use (the “Covered Services”), subject to the terms of this Agreement and the Catering Partner Operating Procedures which are incorporated in this Agreement by reference. In consideration for your use of the Covered Services, you will pay us the fees set forth in your ezManage account (the “Fees”), which are either the fees communicated to you when you create your ezManage account or the fees you and we otherwise agree upon. In addition, we may modify the Fees from time to time in our sole discretion upon 45 days prior written notice (including by email) in accordance with Section 12. We will post the modified Fees in your ezManage account. Your use of the Covered Services after the effective date of any Fee modification constitutes your acceptance of the modification. You agree we may engage third parties to assist with, or to perform, certain Covered Services, provided we are responsible for their compliance with the relevant obligations of this Agreement. You understand that we facilitate delivery services from third-party companies at your request, and we are not ourselves a delivery company.
2. ezManage Platform and Other Technology. During the Term (as defined below), we grant to you a limited, non-exclusive, non-transferable (subject to Section 12 below), non-sublicensable license to access and use the ezManage platform and other technology included with the Covered Services (together, the “Technology”) solely for your internal use to grow and manage your catering and related offerings. You will not: (a) copy, modify, or create derivative works of the Technology; (b) use the Technology to develop competing products or services, (c) reverse engineer, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques, or algorithms of the Technology; or (d) attempt to circumvent any use restrictions built into the Technology. Except for the limited license granted here, we retain all right, title and interest (including all related intellectual property rights) to the Technology and any derivative works of or modifications or improvements to the Technology.
3. Your Content and What We Do with It.
a. Your Content Is How We Market You. You may provide us certain content about your business, such as your name, logo, address, description, menu and menu item descriptions, pricing, images, store contact information, and/or Direct Entry customer contact information (“Your Content”). We use Your Content to market your business to drive customers to the ezCater Marketplace, your ezOrdering page(s) (if you use ezOrdering), and/or other web or app pages that ezCater hosts and that display or link to your menus (“Your ezCater Pages”). Our marketing helps you grow your catering and related business. Examples of our marketing include (to the extent these are relevant to your Covered Services and subject to this Section): displaying and promoting you in the ezCater Marketplace and ezCater app(s), providing you ezOrdering link(s) to place on your website(s), app(s), and other online locations that direct customers to your ezOrdering page(s), using the contact information of customers you enter via Direct Entry or otherwise provide to us to promote your ezOrdering capability (if you use ezOrdering), and promoting you via digital marketing (such as Google, Bing, display ads, and email) to drive customers to Your ezCater Pages. We may also market you through direct mail, radio, TV, or other offline channels, but only if you opt-in.
b. Your Brand Helps Us Help You. Once any of Your ezCater Pages go live, we may include you on a client list.
c. Your Content Remains Yours; Our Right to Use Your Content is Limited. During the Term, you grant to us a limited, non-exclusive, non-transferable (subject to Section 12), non-sublicensable, license to use Your Content to conduct the marketing described in Sections 3.a.-b., provided that any offline marketing will be subject to your prior approval. We will comply with any brand guidelines you provide us with respect to our use of Your Content. At your request, we will share with you representative samples of marketing copy currently in use to promote you. If you would like us to cease any marketing that includes Your Content, we will do so as soon as reasonably practical but in any event within five (5) business days of your request. Except for the limited license granted here, you retain all right, title, and interest, including all intellectual property rights, in and to Your Content.
4. Customer Data Safeguards. “Customer Data” as used in this Agreement means a customer’s personal information that one party provides to the other in connection with the Covered Services that identifies or could identify such customer (for example, name, delivery address, email address, telephone number, or job title). Each party will (a) maintain adequate administrative, technical, and physical safeguards to help ensure that the Customer Data it receives from the other party is secure, (b) protect against any anticipated threats or hazards to the security or integrity of such Customer Data, (c) notify the other party within a reasonable period of time following confirmation of a security incident affecting such Customer Data, (d) cooperate with the other party in its compliance with applicable laws (including with respect to notification) relating to any such security incident, and (e) promptly take all reasonable actions to stop and remedy any such security incident. Please visit our Privacy Policy for more details regarding the types of information we collect and how we use and share this information.
5. Modifications. We may change these Ts&Cs from time to time. We will notify you about material changes in these Ts&Cs by sending a notice to the email address registered in your ezManage account or by placing a prominent notice in ezManage so that you can choose whether to continue using the Covered Services. Material changes will go into effect no less than 45 days after we notify you, and non-material changes will be effective on the date the updated Ts&Cs are posted. Your use of the Covered Services after the effective date of any change constitutes your acceptance of that change. You can access the current version of the Ts&Cs in your ezManage account.
6. Term, Termination and Survival. This Agreement begins on the date you accept these Ts&Cs or the date you began using any Covered Services, if earlier, and continues until it is terminated by either you or us (the “Term”). Either you or we may terminate this Agreement for any or no reason with 15 days written notice. In addition, either you or we may terminate this Agreement for cause immediately if the other party (a) fails to cure a breach within 10 days of being notified for the breach, (b) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors, has receivables subject to a perfected security interest, or (c) commits or otherwise becomes associated with, for any reason, any act or omission that would reasonably constitute willful misconduct or gross negligence or that the terminating party determines Its reasonable discretion may have an adverse impact on the reputation or public image of the terminating party or create legal exposure for the terminating party. Alternatively, we may immediately suspend services rather than terminate this Agreement in the event of clauses (a) - (c). Upon termination of this Agreement, we will cease providing you the Covered Services, you will pay us any outstanding Fees or other amounts due to us as of termination, and we will remit any outstanding payments to you for any orders fulfilled prior to termination. Sections 6 – 12 will survive any termination of this Agreement.
7. Confidentiality. In connection with this Agreement, each party may receive from the other party certain confidential or other proprietary information of the other party, such as trade secrets, know-how, business plans and/or strategies, financial information, intellectual property and other similar information (“Confidential Information”). Except as this Agreement expressly allows, the receiving party will (a) only use the Confidential Information of the other party to perform its obligations or exercise its rights under this Agreement, and (b) hold such Confidential Information in confidence and not disclose it to any third party (other than its employees, affiliates, contractors, advisors, service providers and agents who have a need to know and a duty to the receiving party to protect the confidentiality of such information). Confidential Information does not include any information that: (i) is or becomes generally available or publicly known other than by breach of this Agreement; (ii) was previously known by the receiving party without obligation to keep it confidential; (iii) is received by the receiving party in good faith from a third party lawfully in possession of it without obligation to the other party to keep the information confidential; or (iv) was independently developed by the receiving party without use of any Confidential Information of the other party. A party may disclose Confidential Information of the other party if required by law or court order, so long as the party provides the other party (to the extent legally permissible and reasonably practical) with prior written notice so that the other party may seek to obtain an order protecting the information from public disclosure. Any suggestions to improve or change our services you choose to provide us will not be confidential information, and you grant us a perpetual, nonexclusive, worldwide license to use these suggestions for no additional consideration.
8. Representations and Warranties; Disclaimer. Each party represents to the other that (a) this is a valid and binding Agreement of the party and, in your case, that the individual accepting these Ts&Cs has the authority to do so, (b) that nothing in it will place the party in breach of any other agreement, and (c) it has all requisite ownership, rights, and licenses to perform its obligations and grant the rights it does under this Agreement. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE TECHNOLOGY OR COVERED SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS.
9. Indemnity and Insurance.
a. Indemnity. Each party will defend, indemnify and hold harmless, at its expense, the other party (and its respective affiliates, officers, directors, employees, stockholders, contractors, representatives and agents) from and against any third party claim arising from or relating to: (i) any actual or alleged breach by such party of this Agreement; (ii) with respect to ezCater as the indemnifying party, any claim that the Technology infringes or misappropriates any intellectual property right; (iii) with respect to you as the indemnifying party, any claim relating to Your Content (including any claim that our use of Your Content in accordance with these Ts&Cs infringes, misappropriates or violates any rights of a third party, includes inaccurate information, or fails to include required information); (iv) any claim asserted by such party’s employees or contractors (including, but not limited to, any claims related to employment or co-employment, classification, workers compensation, or recovery for on-the-job injury); or (v) any actual or alleged bodily injury (including death) or damage to tangible or real property to the extent caused by any act or omission by such party’s employees or contractors, including, in your case, any such claim relating to your preparation or handling of food, beverages or order delivery and, in our case, any such claim relating to an ezDispatch driver or ezDispatch driver’s employer. The indemnified party will promptly notify the indemnifying party of the claim (except failing to do so will not relieve a party of its obligations under this Section unless the indemnifying party has been materially prejudiced as a result) and give the indemnifying party the right to control the defense and settlement of the claim so long as it is actively defending the claim (except it may not settle any claim without the indemnified party’s prior written consent, which will not be unreasonably withheld). The indemnified party may, at its expense, participate in the defense and settlement of the claim. If any Technology is determined to infringe or likely to infringe a valid U.S. copyright or U.S. patent, we will, in our sole discretion (A) replace the affected Technology, (B) modify the affected Technology to render it non-infringing, or (C) terminate this Agreement. Neither party will have any obligations under this Section to the extent an infringement claim is based on the other party’s unauthorized use or modification of the allegedly infringing technology, material or content.
b. Insurance. Each party agrees that during the Term, it will maintain: (i) commercial general liability coverage with a limit of not less than $1,000,000 for each claim and $2,000,000 annual aggregate; (ii) Worker's Compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable law for the jurisdictions in which a party is operating for each accident; (iii) automobile liability, inclusive of owned, hired, and non-owned coverage as applicable, with at least $1,000,000 per occurrence including personal injury, death and property damage covering automobile accidents (applicable to you only if you facilitate some or all of your own deliveries, and applicable to us only if you use ezDispatch); and (iv) umbrella/excess liability, with a limit not less than $5,000,000 per claim and in the aggregate with such coverage “following form” in respect of all underlying liability coverages described in (i) and (iii) above. Each party will provide the other with a certificate of insurance evidencing such coverage upon request.
10. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S OBLIGATIONS UNDER SECTION 9.a (INDEMNITY) OR A BREACH OF SECTION 7 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND (B) ANY AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO US UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM IS BROUGHT (PROVIDED THAT THE CAP IN CLAUSE (B) DOES NOT APPLY TO LIABILITY ARISING FROM FEES PAYABLE TO US).
11. Catering Partner Locations; Franchises; Other Third-Party Relationships. This Agreement applies to all current, past and future catering partner locations that you own or control under all brand concepts that have received or are receiving Covered Services from time-to-time (“Catering Partner Locations”), and for the purposes of this Agreement “you” or “your” includes all Catering Partner Locations. If you are a franchisor (“Franchisor”), your franchisees (“Franchisees”) may receive the Covered Services, provided that they have accepted these Ts&Cs or another agreement with us for the Covered Services. If you are a franchisee and your franchisor has entered into an agreement with us that differs from these Ts&Cs then, to the extent there are any conflicts between the terms of the agreement your franchisor has entered into with us and the terms of these Ts&Cs, the terms of our agreement with your franchisor shall apply. Franchisor has no responsibility or liability for such Franchisees in connection with the Covered Services we provide them, including payment of any Fees they owe. If you are a Franchisee, these additional terms apply to you: (a) you represent to us that you are in compliance with your franchise agreement with your Franchisor, (b) you agree that we may share with your Franchisor all information we obtain or develop regarding your use of the Covered Services, and (c) you (not your Franchisor) will be solely responsible for fulfilling your obligations under this Agreement, including paying any Fees as described in Section 1. If a Franchisor notifies us that its franchise agreement with a Franchisee has been breached by the Franchisee or is terminated, our agreement with the Franchisee will automatically terminate upon our notice to the Franchisee. Additionally, to the extent that you have a relationship with a third party who has secured special Fees for your use of the Covered Services (such as a licensor of intellectual property or a landlord of a tenant), you agree that we may share with such third party all information we obtain or develop regarding your use of the Covered Services.
12. General. Any legal notice under this Agreement must be in writing and delivered via email, nationally recognized overnight express courier (signature required), or registered or certified mail with postage prepaid and return receipt requested. Unless another address is given by written notice, legal notice to you will be sent to the business entity address or email address registered in your ezManage account, and legal notice to us will be sent to ezCater, Inc., Attention: General Counsel, 40 Water Street, Fifth Floor, Boston, MA 02109 with a copy to legal@ezcater.com. All legal notices will be effective upon receipt. You and we are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of law principles. Any claims or legal actions by you or us will take place in any state or federal court in the Commonwealth of Massachusetts. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and disbursements in addition to any other relief to which the prevailing party may be entitled. Neither party may assign this Agreement to a third party without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign without consent to an affiliate or successor entity in a merger, consolidation, business combination or sale of all or substantially all of its assets to which this Agreement relates. If any part of this Agreement is unenforceable, the rest will remain in effect. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any subsequent breach. These Ts&Cs supersede all prior or contemporaneous agreements and understandings of the parties, whether oral, written, or implied with respect to the subject matter hereof, including all prior versions of these Ts&Cs. All such prior or contemporaneous agreements, understandings and versions are hereby terminated and have no further force or effect.
