Restaurant Service Agreement
Last Updated: 6 February 2023
This Dinerly Restaurant Service Agreement (this "Agreement") is a binding contract between Dinerly.com ("Dinerly," "we," "us," or "our") and the business entity identified during the account registration process ("Restaurant," "you," or "your"). This Agreement sets forth the terms under which the Restaurant may access and use Dinerly's software platform and related services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, ACCESSING OR USING ANY PART OF THE SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU, THE INDIVIDUAL ACCEPTING THIS AGREEMENT, REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE RESTAURANT TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, NEITHER YOU NOR THE RESTAURANT MAY USE OR ACCESS THE SERVICE.
1. Definitions
"Service" or "Platform" refers to the Dinerly website builder, online ordering system, table reservation system, marketing tools, AI tools, and any other software, applications, or services provided by Dinerly to Restaurants.
"Restaurant Content" means any data, information, text, images, videos, menus, pricing, trademarks, logos, and any other content or materials uploaded, submitted, or displayed by the Restaurant on or through the Service.
"Customer" means an end-user who interacts with the Restaurant's website or services powered by Dinerly.
2. Acceptance of Terms
By accessing or using the Service, you confirm that you are at least 18 years old and agree to comply with this Agreement, Dinerly's Terms of Service and Dinerly's Privacy Policy, both of which are incorporated herein by reference.
3. The Dinerly Service
Dinerly provides a B2B SaaS platform that enables restaurant businesses, to:
Create and manage a custom website for their restaurant.
Implement an online ordering system for food and beverage sales.
Manage table reservations.
Utilize marketing tools for customer engagement and promotions.
Access AI-powered tools designed to optimize restaurant operations.
Process payments from Customers through a third-party payment processor (Stripe).
4. Account Registration and Use
4.1. Account Creation: To access and use the Service, you must register for a Dinerly account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. Dinerly reserves the right to reject your application for an account, or cancel an existing account, for any reason, at its sole discretion.
4.2. Business Purpose: You confirm that you are using the Service for the purposes of carrying on a business activity and not for any personal, household, or family purpose.
4.3. Account Security: You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your account. You agree to notify Dinerly immediately of any unauthorized use of your account.
5. Fees and Payment
5.1. Subscription Fees: Dinerly charges a recurring subscription fee for access to and use of the Service. The applicable subscription fees, billing cycles, and any specific terms relating thereto will be presented to you during the registration process and/or on Dinerly's pricing page.
5.2. Payment Processing and Remittance: Restaurants will integrate with Stripe, a third-party payment processor. Dinerly will facilitate the collection of Customer payments for online orders or other transactions initiated through the Restaurant's website powered by Dinerly. Dinerly will receive these payments via Stripe and, after deducting Stripe's payment processing fees and any applicable delivery fees or other fees agreed upon (e.g., specific third-party integrations), will remit the remaining balance to the Restaurant. Dinerly is not a party to the payment processing agreement between the Restaurant and Stripe directly for the portion of the funds remitted to the Restaurant, but acts as a facilitator for collection and remittance.
5.3. Payment Processing Fees: Restaurant acknowledges that Stripe will charge payment processing fees for all transactions processed through their platform. These fees, along with any delivery fees or other relevant charges, will be deducted from Customer payments before Dinerly remits the balance to the Restaurant.
5.4. Billing and Invoicing: Subscription fees will be charged automatically on a recurring basis according to your chosen billing cycle. You authorize Dinerly or its third-party payment processor to charge your provided payment method for all applicable subscription fees.
5.5. Delinquent Accounts: If any amount due for the Service is unpaid, Dinerly may suspend or terminate your access to the Service. Dinerly reserves the right to charge fees or charges incidental to any chargeback or collection of any unpaid amount.
5.6. Setup and Equipment Fees:
Non-Refundable Fees: All setup fees and monthly subscription fees paid to Dinerly are non-refundable.
Equipment Provision: Dinerly may, at its sole discretion, provide the Restaurant with certain equipment, which may include, but is not limited to, thermal receipt printers, tablets, and other accessories (collectively, "Equipment"). Such Equipment is provided to facilitate the Restaurant's use of the Service.
Lease and Ownership: Any Equipment provided by Dinerly is leased to the Restaurant for the duration of this Agreement and remains the sole and exclusive property of Dinerly at all times.
Return of Equipment: Upon termination or cancellation of this Agreement for any reason, the Restaurant must immediately return all Equipment to Dinerly in good working condition, reasonable wear and tear excepted, following Dinerly's instructions for return.
Replacement Costs: If the Equipment is not returned to Dinerly upon termination or cancellation, or if the Equipment is lost, stolen, or damaged beyond reasonable wear and tear, the Restaurant agrees to pay Dinerly the full replacement cost of such Equipment. Dinerly reserves the right to charge the Restaurant's registered payment method for these replacement costs.
6. Restaurant Responsibilities
6.1. Content Accuracy: You are solely responsible for the accuracy, completeness, and legality of all Restaurant Content, including but not limited to menus, pricing, availability, and promotional information.
6.2. Order Fulfillment: You are solely responsible for fulfilling all orders placed by Customers through your Dinerly-powered online ordering system, including timely preparation, quality control, and delivery or pickup arrangements.
6.3. Customer Service: You are solely responsible for all customer service related to orders and services provided by your restaurant, including handling inquiries, complaints, refunds, and chargebacks. Dinerly is not responsible for any disputes between you and your Customers.
6.4. General Compliance: You agree to comply with all applicable local, national, and international laws, regulations, and industry standards related to your business operations.
6.5. Third-Party Services: If you integrate or use any third-party services (e.g., external delivery services) in conjunction with the Dinerly Platform, you acknowledge that Dinerly is not responsible for the performance or actions of such third parties. Your relationship with any such third party is solely between you and the third party.
6.6. Taxes: The Restaurant is solely responsible for collecting, reporting, and remitting all applicable sales, use, value-added, goods and services, withholding, excise, and any other similar taxes, duties, or charges imposed by any taxing authority related to your business operations, including but not limited to the sale of food and beverages, use of the Service, and any Equipment provided. This responsibility does not include taxes on Dinerly's net income.
6.7. Customer Order Management:
Fair Treatment of Orders: You agree not to disfavor, deprioritize, or otherwise treat orders received through the Dinerly Platform less favorably than orders received through any other sales channel, whether online or offline.
Order Suspension: If circumstances require a temporary suspension of online orders for a given location, you must promptly notify Dinerly support. Dinerly will make reasonable efforts to facilitate such suspension for a mutually agreed upon timeframe.
Delivery Responsibility: You are solely responsible for all aspects of delivery services for orders placed through the Platform, whether you utilize your own delivery personnel or engage a third-party delivery provider. This includes ensuring timely delivery, maintaining food quality during transit, and compliance with all relevant delivery regulations. The Restaurant bears all risk of loss for items during delivery.
6.8. Detailed Food and Safety Compliance: You warrant that all food and beverages prepared and sold through the Service comply with all relevant food safety and hygiene regulations, health codes, and industry best practices. This includes, but is not limited to, proper food handling, storage, preparation, labeling (including allergen information), and adherence to local health inspections. You will maintain all necessary permits, licenses, and registrations required to operate your food service business.
6.9. Sale of Regulated Products: While the Dinerly Platform does not restrict the sale of legally regulated products such as tobacco or alcoholic beverages, the Restaurant is solely and entirely responsible for ensuring strict compliance with all applicable laws, regulations, licenses, and permits governing the advertising, sale, age verification, and delivery of such products. Dinerly disclaims any liability for your non-compliance in this regard.
6.10. Data Handling and Third-Party Data Transfer Consent:
Data Export Tools: Dinerly may provide tools within the Service to allow you to export your data, including Customer data.
Third-Party Data Transfer: If you choose to integrate the Service with, or export data to, any third-party service, you acknowledge and agree that you are solely responsible for: (a) ensuring such integration or transfer complies with all applicable data protection laws; (b) obtaining any necessary consents from your Customers for the transfer and processing of their personal data by such third-party services; and (c) the terms and conditions of that third-party service.
Dinerly's Non-Responsibility: Dinerly is not responsible for the privacy practices, data security measures, or any actions or omissions of any third-party service to which you transfer data, nor for any non-compliance resulting from your data transfers or the third party's use of the exported information.
6.11. Payment Disputes and Chargebacks: The Restaurant is solely responsible for handling, investigating, and resolving any payment disputes, chargebacks, or claims initiated by Customers or their banks related to online orders, booking deposits, or any other transactions processed through the Service. This includes communicating directly with the Customer and their bank, providing necessary documentation, and bearing any costs, fees, or losses associated with such disputes. Dinerly will not be liable for any chargebacks or payment disputes incurred by the Restaurant.
6.12. Suitability of Service: You acknowledge and agree that it is your sole responsibility to evaluate and determine whether the Dinerly Service has the necessary features, functionality, and capabilities to meet your specific business requirements and needs prior to entering into this Agreement. Dinerly shall not be responsible for ensuring the Service's suitability for your particular business operations, nor for any lack of features or functionality that you may require.
7. Intellectual Property
7.1. Dinerly's Ownership: All rights, title, and interest in and to the Service, including all intellectual property rights (e.g., copyrights, trademarks, patents, trade secrets), are and will remain the exclusive property of Dinerly and its licensors.
7.2. Restaurant Content License: You grant Dinerly a non-exclusive, worldwide, royalty-free, transferable, sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and publicly display your Restaurant Content solely for the purpose of operating, improving, and promoting the Service.
8. Data Privacy and Security
8.1. Data Protection: Both parties agree to comply with all applicable data protection laws, including the UK GDPR and the Data Protection Act 2018, regarding the processing of personal data.
8.2. Dinerly's Role: Dinerly acts as a processor of personal data on behalf of the Restaurant (who is the controller) in relation to Customer data collected through the Service. Our Privacy Policy details how we collect, use, and protect personal data.
8.3. Restaurant's Role: You are responsible for ensuring that your collection and use of Customer data, and any data you provide to Dinerly, comply with all applicable data protection laws.
9. Service Availability
Dinerly will use commercially reasonable efforts to make the Service available. However, Dinerly does not guarantee uninterrupted or error-free operation of the Service and may perform scheduled or unscheduled maintenance. Dinerly will endeavor to provide reasonable notice for any planned outages that may significantly impact Service availability.
10. Confidentiality
Both parties agree to keep confidential all non-public information disclosed by the other party that is designated as confidential or that, by its nature, should reasonably be considered confidential. This obligation will not apply to information that is publicly available, independently developed, or required to be disclosed by law.
11. Disclaimer of Warranties
THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR COURSE OF PERFORMANCE. DINERLY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DINERLY, ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO YOUR USE OF OR INABILITY TO USE THE SERVICE.
13. Indemnification
You agree to defend, indemnify, and hold harmless Dinerly, its affiliates, licensors, and their respective officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of the Service; (ii) your Restaurant Content; (iii) your violation of this Agreement; (iv) your fulfillment of Customer orders; (v) your compliance with applicable laws and regulations (including those related to food safety and regulated products); or (vi) your relationship with any third-party payment processor or other third-party service provider.
14. Term and Termination
14.1. Term: This Agreement commences on the date you accept it and continues until terminated as set forth herein.
14.2. Termination by Restaurant: You may terminate this Agreement and cancel your subscription at any time by contacting Dinerly support at support@dinerly.com or through your account settings, subject to the terms of your subscription.
14.3. Termination by Dinerly: Dinerly may terminate this Agreement and suspend or terminate your access to the Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Agreement.
14.4. Effect of Termination: Upon termination, your right to use the Service will immediately cease. All provisions of this Agreement which by their nature should survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability, shall survive termination.
15. Changes to this Agreement
Dinerly reserves the right, in its sole and absolute discretion, to update or change any portion of this Agreement at any time. We will provide you with reasonable advance notice of changes that materially adversely affect your use of the Service or your rights under this Agreement, by sending an email to your Primary Email Address or through prominent notice within the Dinerly administrative console. Your continued access to or use of the Service after such notice constitutes your acceptance of the changes and consent to be bound by the Agreement as amended. If you do not agree to the amended Agreement, you must stop accessing and using the Service.
16. Governing Law and Dispute Resolution
This Agreement shall be governed and construed in accordance with the laws of England and Wales, without regard to its conflict of law provisions. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be resolved exclusively by the courts located in London, England.
17. Miscellaneous
17.1. Entire Agreement: This Agreement, together with the Dinerly Terms of Service and Privacy Policy, constitutes the entire agreement between you and Dinerly regarding the Service.
17.2. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
17.3. Waiver: No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Dinerly's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
17.4. Assignment: You may not assign or transfer your rights or obligations under this Agreement without Dinerly's prior written consent. Dinerly may assign its rights and obligations under this Agreement without restriction.
17.5. Contact Information: If you have any questions about this Agreement, please contact us at support@dinerly.com.
