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These Terms and Conditions for NabeDish Hosts (the “Agreement”), by and between the company identified below (“You”) and BrkBread, LLC d/b/a NabeDish (“we”, “us” or “NabeDish”), apply solely to Your Meal Offerings on the NabeDish Platform.  

 

1.             Eligibility. You must meet the following eligibility requirements to offer Your Meal Offerings through NabeDish Platform: (a) be a permanent U.S resident or citizen; (b) have a verified U.S. bank account and (where applicable); (c) meet any other eligibility requirement as specified in the NabeDish Platform Guidelines.

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2.             Verification. We may require you to provide additional registration information to verify your identity. This information may include your social security number, a valid U.S. credit card, a verified U.S. bank account, or other financial, business, tax or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us, including checking databases. By submitting your personal information you agree that it will be subject to the NabeDishh Privacy Policy currently referenced at www.nabedish.com/privacy, as we may update it from time to time.

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3.             Listings. You may list Your Meal Offerings in the NabeDish Platform subject to the following terms:

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3.1         Review of Listings.  You are responsible for evaluating and confirming the details of Your Meal Offerings before submitting it to the NabeDish Platform to confirm that it complies with this Agreement and our Policies. In connection with the purposes contemplated under this Agreement, we may review any Meal Offering submitted for listing on the NabeDish Platform at any time, including for security-related concerns and to check the accuracy of descriptions and other materials in Your Meal Offerings. We may accept or reject Your Meal Offerings or restrict Your account (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to restrict products or activities that we deem unsafe, inappropriate, or offensive; or (c) if Your activities on the NabeDish Platform otherwise violates the terms of this Agreement or our Policies. You will cooperate with our review and testing.

 

3.2         Responsibility for Your Meal Offerings. You are responsible for Your Meal Offerings. Subject to Section 3.6 of this Agreement, you will establish the pricing and other terms governing NabeDish Platform customers’ (“Diners”) use of Your Meal Offerings. You will ensure that all information about Your Meal Offerings (including information about applicable fees) displayed on the NabeDish Platform is, at all times, accurate, complete, not misleading, and in compliance with applicable law. Except as provided in this Agreement, NabeDish obtains no rights under this Agreement from you to Your Meal Offerings.

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3.3         Representations and Warranties. You represent and warrant that you have the lawful right to list and distribute any of Your Meal Offerings that you list and distribute to Diners through the NabeDish Platform, and Your listing and distribution of Your Meal Offerings shall not be in violation of any regulations. You represent and warrant that you will take reasonable care in preparing any Meal Offerings that you list and distribute to Diners through the NabeDish Platform.

   

3.4         Removal of Your Meal Offerings.  

(a)    You may remove a listing of Your Meal Offerings from the NabeDish Platform in accordance with NabeDish Platform Listing Guidelines.  We may also remove any listing for Your Meal Offerings from the NabeDish Platform at any time, cancel any underlying subscriptions (i) for legal, regulatory, fraud and abuse prevention, or security reasons; (ii) to restrict offerings or activities that we deem unsafe, inappropriate, or offensive; or (iii) if Your Meal Offerings otherwise violates the terms of this Agreement or our Policies.

(b)     Any removal by you of any listing or offer of Your Meal Offerings from the NabeDish Platform will apply to prospective Diners only and you will distribute the Meal Offering to Diners who have ordered Your Meal Offerings prior to the removal of Your listing.  

 

3.5         Our Role. You will be the seller of record for Your Meal Offerings. Except as expressly set forth in this Agreement, we are not involved in any underlying transaction between you and any Diner. We are not responsible for any dispute between you and any Diner, but we may elect to assist in resolving any dispute between you and any Diner. If we elect to assist in the resolution of a dispute, you agree to cooperate with us to resolve the dispute.

 

3.6         Diner Ratings and Feedback. We may implement mechanisms that rate, or allow Diners to rate and provide feedback about, Your Meal Offerings (including information about Your Meal Offerings that was removed from NabeDish Platform), you, and your performance in connection with Your Meal Offerings and the NabeDish Platform. We may make these ratings and feedback publicly available.

 

3.7         Diner Information. Except as expressly set forth in this Section 3.7 or as otherwise expressly permitted by Diner, you may use Diner Information only (i) to communicate with Diners who acquire Your Meal Offerings; (ii) for computation of your internal sales metrics; or (iii) for tax purposes related to Diners seeking acquiring your Meal Offerings.  You may not use Diner Information for any other purpose, unless otherwise agreed in writing between you and the respective Diner. For example, you may not, directly or indirectly: (a) disclose any Diner Information to any third party, except as necessary for you to exercise your rights or perform your obligations under this Agreement and only if you ensure that every recipient uses the information only for that purpose and complies with any restrictions applicable to you; (b) use any Diner Information for any marketing or promotional purposes whatsoever; (c) use any Diner Information in any way inconsistent with applicable privacy policies or law; (d) contact a Diner to influence them to make an alternative purchase; (e) disparage us, our affiliates or any of their or our respective products; or (f) target communications of any kind based on the intended recipient being a Diner. Notwithstanding the foregoing, you may use Diner Information for your marketing or promotional purposes in accordance with applicable privacy policies and law provided that you have obtained the express consent of Diners receiving such marketing or promotional communications. This section does not prevent you from using other information that you acquire without reference to Diner Information for any purpose, even if that information is identical to Diner Information, as long as you do not target communications based on the intended recipient being a Diner. 

 

3.8     Marketing Restriction. You may not include in Your Meal Offerings, any advertisements or promotions for, or opportunities for a Diner to purchase, products or services that you do not list in the NabeDish Platform. If you choose to market or make other references to the availability of Your Meal Offerings, you must refer to the NabeDish Platform or use an approved logo provided by us, in compliance with any trademark usage guidelines we specify.

 

3.9     Other Rights. During the term of this Agreement and for so long as Diners may use Your Meal Offerings, you grant us a nonexclusive, worldwide license to: (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), all information about Your Meal Offerings, including written descriptions, photographs, and video footage, to provide services to you in accordance with this Agreement, provided that no Diner shall be provided access to Your Meal Offerings without an active account; (b) use (i) your trademarks and logos in the form you provide them to us (with any modifications to optimize their viewing), and (ii) limited portions of Your Meal Offerings (e.g., meal description) for marketing Your Meal Offerings or the NabeDish Platform and (c) access, display, promote and otherwise use Your Meal Offerings for demonstrating the NabeDish Platform for potential Diners. We may permit our affiliates and independent contractors to exercise the rights that you grant to us in this Agreement. We assume all liability and responsibility for our affiliates’ and independent contractors’ compliance with, or breach of, the terms of this Agreement. 

 

3.10    Diner Personal Data.  We will process all Diner personal data that we receive from or on behalf of Diners while delivering services related to Your Meal Offerings in compliance with the applicable data privacy laws.  We further agree that all personal data we collect from Diners in connection to Your Meal Offerings will be collected, stored, processed, disclosed and used consistent, in all ways, with applicable privacy policies and law, and that the receipt, storage, use, processing, disclosure or transmission of such data by You in connection with Your Meal Offerings and the Transactions contemplated by this Agreement does not require and does not depend on the need to obtain any additional consents, authorization, or other rights or permissions from any other person or entity.  

 

4.             Payment. 

 

4.1         Processing of Transactions; Collection of Transaction Proceeds. You hereby appoint us as your payment processing agent for the limited purpose of receiving payments on your behalf from Diners. On your behalf, we will process all payments and refunds for Transactions and collect the applicable Transaction Proceeds. Receipt of funds from Diners by us on your behalf for Your Meal Offerings will be deemed receipt of funds from Diners by you and will satisfy the obligations owed to you by Diners in the amount of the applicable payment by the Diner. We do not guarantee payment on behalf of any Diners. You will ensure that all fees and charges payable by Diners for Your Meal Offerings are billed and collected through us and you will not offer or establish any alternative means of payment. We may impose transaction limits on some or all Diners and sellers/providers relating to the value of any Transaction or disbursement, the cumulative value of all Transactions or disbursements during a time period or the number of Transactions per day or other time period. We may withhold for investigation, or refuse to process, any of your Transactions that we suspect is fraudulent, unlawful or otherwise violates the terms of this Agreement or our Policies.  For the sake of clarity, we will not pay you any fees where we are using the listing of Your Meal Offerings for our testing, support, demonstration, or other sales support purposes or as otherwise necessary to exercise our rights under this Agreement.

 

4.2         Remittance of Transaction Proceeds to You. At the end of each day, we will pay to you all previously unpaid Transaction Proceeds that we have fully collected as of the date of payment. We will deduct from each payment any Fees due to us related to Your Meal Offerings and the associated Transaction(s). We may also withhold, deduct, or setoff any amounts payable by you to us or our affiliates against any Transaction Proceeds. All payments to you will be sent through the Stripe payment processing system to your designated U.S. bank account. If there is an error in the processing of any Transaction, you authorize us to debit or credit your designated bank account, to correct such error, provided that any such correction is made in accordance with applicable NabeDish and regulations. If we cannot debit your designated bank account for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other bank account or payment instrument that you have on file with us for depositing Transaction Proceeds or to deduct the debit and applicable fees from future Transaction Proceeds.

 

4.3         Taxes.  You are responsible for the calculation, invoicing (if required), validation and payment of all applicable withholding and other taxes and duties assessed, incurred or required to be collected (“Taxes”) or paid for any reason in connection with any Transaction and with Your Meal Offerings. We need not determine whether any Taxes apply to any Transaction, and we are not responsible for remitting Taxes to any taxing authority for any Transaction, or for reporting any information (including the payment of Taxes) for any Transaction. Despite the foregoing, when we are legally obligated by a valid taxing authority, we will collect Taxes, and we will provide Diners with a compliant tax invoice. All fees and payments payable by you to NabeDish under this Agreement are exclusive of any applicable taxes, deductions or withholding. If any such taxes are required to be withheld on any payment, you will pay such additional amounts as are necessary to the appropriate recipient so that the net amount received by NabeDish is equal to the amount then due and payable under this Agreement.  Notwithstanding anything to the contrary herein, nothing in this Agreement shall, or shall be interpreted or construed to, induce or require either party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules or requirements that apply to any party to the Agreement.

 

4.4         Cancellations and Refunds.  In the event you cancel your Meal Offerings after a Diner has ordered and paid for the Meal Offering, you will provide refunds and adjustments for your cancellation in accordance with the NabeDish refund policy posted at the time of the applicable Transaction and as otherwise required by law. You will route all Transaction refund (and adjustment) payments through us. We will credit the applicable account, and you will reimburse us for all amounts so refunded, if applicable.

 

4.7         Removal. Upon removal of any listing of Your Meal Offerings, you will continue to distribute Your Meal Offerings to any Diner who has placed an order for the Meal Offering prior to the removal of Your Meal Offering.  

 

5.              Term and Termination. The term of this Agreement will begin on the day you post your first listing for Your Meal Offering and will continue until terminated. Either party may terminate this Agreement for any or no reason by providing written notice to the other party. Following termination of this Agreement, you will cease all use and access to the NabeDish Platform, including but not limited to the listing of Your Meal Offerings on the NabeDish Platform.  Despite anything in this Agreement to the contrary, we may terminate an existing Diner’s order of Your Meal Offerings (y) at any time in accordance with our agreement with the Diner or (z) upon termination of this Agreement for any or no reason.

 

6.             Indemnification.

 

6.1         General.   You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their and our respective employees, officers, directors, and representatives from and against any loss, claim, liability, damages finally awarded by a court of competent jurisdiction, action or cause of action (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning Your Meal Offerings, including but not limited to: (a) any actual or alleged violation of law, negligence, willful misconduct, or fraud by you in connection with Your Meal Offerings; (b) any actual or alleged breach of your representations, warranties or covenants set forth in this Agreement; and (c) any claim or demand for payment of any Taxes imposed in connection with any Transaction, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit or report any Taxes in connection with any Transaction.  

 

6.2         Process. We will promptly notify you of any claim subject to Section 6.1, but our failure to promptly notify you will only affect your obligations under Section 6.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing  to defend against any claim; and (b) settle the claim as you deem appropriate as long as you obtain our prior written consent before entering into any settlement that (i) involves the payment of money by us; (ii) results in less than a full release for any indemnified party; or (iii) admits fault on our behalf. We may also assume control of the defense and settlement of the claim at any time.

 

7.             Disclaimers; Limitations of Liability.

 

7.1         Generally.  EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE, OUR AFFILIATES AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ALL SERVICES, SOFTWARE, OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE, OUR AFFILIATES AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

 

7.2         Limitations of Liability. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IF ANY PARTY DEFAULTS ON ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND SUBJECT TO THE LIABILITY CAP IN SECTION 8.3, THE NON BREACHING PARTY WILL BE ENTITLED TO RECOVER FROM THE BREACHING PARTY ONLY THE ACTUAL AND DIRECT DAMAGES THAT THE NON BREACHING PARTY MAY INCUR ON ACCOUNT OF SUCH BREACH. EXCEPT FOR INDEMNITY OBLIGATIONS IN SECTION 6 AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER PARTY NOR ANY OF EITHER PARTY’S RESPECTIVE AFFILIATES OR LICENSORS WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ASSOCIATED WITH: LOSS OF PROFITS OR GOODWILL; UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES OFFERED BY NABEDISH; INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OR ACCESS TO THE SERVICES OFFERED BY NABEDISH; OR UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION OR LOSS OF YOUR CONTENT, INCLUDING REPLACEMENT COSTS.  NOTHWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT, IS INTENDED TO EXCLUDE, RESTRICT OR MODIFY ANY RIGHT OR REMEDY YOU HAVE IN STATUTE OR OTHERWISE TO THE EXTENT THAT RIGHT TO REMEDY CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED UNDER LAW. TO THE FULLEST EXTENT PERMITTED BY LAW WE LIMIT OUR LIABILITY UNDER ANY SUCH NON-EXCLUDABLE RIGHT OR REMEDY TO AT OUR OPTION: (i) RESUPPLY OF THE SERVICES; OR (ii) THE COST OF RESUPPLY OF THE SERVICES.

 

7.3         Damages Cap. EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 6, (I) NEITHER PARTY’S NOR ANY OF ITS RESPECTIVE AFFILIATES’ OR LICENSORS’ AGGREGATE LIABILITY IN CONNECTION WITH ANY CLAIM UNDER THIS AGREEMENT WILL EXCEED THE TOTAL TRANSACTION PROCEEDS ACCRUED BY US IN THE TRANSACTION GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT, MINUS THE AMOUNT OF ANY DAMAGES PAID BY SUCH PARTY OR ITS AFFILIATES.

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8.             Miscellaneous.

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8.1         Nondisclosure; Publicity. Each party and its representatives (a) will protect and keep confidential the existence of this Agreement, its terms and conditions (including pricing) and any other information obtained from the other party (the “Disclosing Party”) in connection with this Agreement identified as confidential or proprietary or that, given the nature of the information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to our technology, customers, business plans, marketing activities and finances), (b) will use this information only for the purpose(s) for which it was originally disclosed and in any case only to fulfil the receiving party’s obligations under this Agreement, and (c) will return all information to the Disclosing Party promptly upon the termination of this Agreement. For the sake of clarity, any Fees charged by us for your use of NabeDish Platform is our confidential information. All information will remain our exclusive property, and you will have no rights to use this information except as expressly provided herein. Neither party will use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights belonging to the other party or its affiliates’ in any manner without prior written authorization. Neither party will issue press releases or make any other public statements relating to or referencing the other party or this Agreement without our written permission.

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8.2         Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its or our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

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8.3         Independent Contractors. The parties to this Agreement are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

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8.4        Payment Processing by Stripe.  Payment processing services for Hosts on NabeDish are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a host on NabeDish, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of NabeDish enabling payment processing services through Stripe, you agree to provide NabeDish accurate and complete information about you and your business, and you authorize NabeDish to share it and transaction information related to your use of the payment processing services provided by Stripe.