Table of Contents
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Last Updated: January 31, 2019
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND RESTAURANT PEER WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
II. CHANGES TO TERMS
III. DESCRIPTION OF SERVICES
General. Restaurant Peer provides an online platform that helps connect small food business owners (“Mobile Restaurateur”) who need access to commercial kitchens and related services with those who have commercial kitchens and provide related services (“Hosts”). The Services help to facilitate this transaction by connectingMobile Restaurateurand Hosts together, provide tools for scheduling, booking, communication and/or payment processing. We further enable peers to provide reviews after services are rendered.
Limitation. Please note that Restaurant Peer is not a property owner, lessor, manager, licensor or broker of any commercial kitchen space and/or real property. Restaurant Peer does not own, sell, resell, furnish, provide, rent, sublet, license, manage or control any commercial kitchen and/or Host. All leases, rentals, or arrangements are entered into solely betweenMobile Restaurateurand Hosts and Restaurant Peer shall not be liable for anything related thereto.
- The Host is solely responsible for providing accurate and up-to-date information via the Services or otherwise related to its commercial kitchen, description thereof, fees, costs and additional services. Hosts will receive a notification when a booking is requested by a Mobile Restaurateur. The Host will have the opportunity to meet or otherwise correspond with the Mobile Restaurateur to discuss the commercial kitchen space and/or additional services available. In the event the Host and Mobile Restaurateur agree to move forward, the Host and Mobile Restaurateur shall secure such arrangement via the Services.
- The Mobile Restaurateur shall initiate a connection with a Host of its choice, and such Host shall respond within three (3) days from receiving the initial connection request (“Initial Connection Request”).
- The Mobile Restaurateur and Host shall meet with each other within ten (10) days following the Initial Connection Request to review the service offerings, peer packet, and other related information. If the Mobile Restaurateur and Host agree to proceed with the connection, the Host shall then schedule the selected services through Restaurant Peer’s Services.
- The Mobile Restaurateur shall approve and otherwise confirm the schedule of hours and the initiation of the start of the related Host services through Restaurant Peer’s Services, and the Host shall confirm the services to be delivered, and schedule the dates of availability. The Mobile Restaurateur and Host shall complete the agreement and scheduling within fifteen (15) days following the Initial Connection Request.
- In the event the Host does not approve the related listing, the Host’s listing shall remain active on the Services. In such event, the Mobile Restaurateur shall email Restaurant Peer at firstname.lastname@example.org , and Restaurant Peer shall use commercially reasonable efforts to assign the Mobile Restaurateur a new Host within forty-five (45) days following the Initial connection Request.
IV. SCOPE OF USE
Use of Services and Availability. Restaurant Peer retains the right, in our sole and absolute discretion, to deny service and/or access to and/or use of the Services to anyone at any time and for any reason without liability. While we use reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. You understand and agree that there may be interruptions to the Services and/or access to your account due to circumstances both within our control (e.g., routine maintenance) and outside of Restaurant Peer’s control. The Services may be modified, updated, suspendedand/or discontinued at any time without noticeand/or liability.
If we terminate your account, you may not subscribe under a new account unless we formally invite you. If you commit fraud and/or falsify information in connection with your access to and/or use of the Services, your account will be terminated immediately and we reserve the right to hold you liable for any and all damages that we suffer, and we may pursue legal action through relevant local and national law enforcement authorities and may notify your ‘Internet Service Provider’ of any fraudulent activity we associate with you and/or your access to and/or use of the Services.
Hosting Agreement. Restaurant Peer recommends that Hosts andMobile Restaurateursconsult with a reputable service provider to enter into any hosting and/or lease agreements for purposes of leasing kitchen space. Any host and/or lease agreements are between Hosts andMobile Restaurateur, and not the responsibility of Restaurant Peer, nor is Restaurant Peer liable for anything related thereto.
Communications from Restaurant Peer. By using the Services, you agree to receive certain communications in connection with the Services. When you access and/or use the Services, you are communicating with us electronically, and you consent to receive communications from us electronically including but not limited to notices related to the Services provided to you via email. You agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting us. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal.
Your Responsibilities. Restaurant Peer grants you the rights set forth herein, subject to the following conditions:
- You shall not modify, disassemble, create derivative works, publicly display, reverse engineer and/or otherwise reduce to human-perceivable form all or any part of the Services;
- You agree not to submit and/or transmit any emails, User Content (defined in the User Content Section below) or other materials through the Services that contain a virus, worm, Trojan horse and/or any other harmful componentdesigned to interrupt, destroy and/or limit the functionality of any computer software and/or hardware and/or telecommunications equipment, and/or that is designed to obtain unauthorized access to any information;
- You shall not obtain or attempt to obtain any data through any means from the Services, except if we intend to provide and/or make it available to you;
- You shall not pretend to be someone else, use someone else’s identify or misrepresent your affiliation with a person or entity;
- You shall not copy or imitate part or all of the design, layout, and/or look-and-feel of the Services and/or individual sections of it, in any form or media;
- You are responsible for the accuracy of the data and content that you submit;
- You shall not submit User Content, in any form, that isharmful, offensive, inaccurate or otherwise inappropriate including without limitation libelous, defamatory, harassing, racially, ethnically and/or otherwise objectionable;
- You agree not tointentionally hold Restaurant Peerand/or their employeesand/or directors up to public scorn, ridiculeand/or defamation;
- You will not promote and/or provideinformation about illegal activitiesand/or physical harmand/or injury to any group, individual, institution and/or property;
- You will not submit User Content that violates, plagiarizes and/or infringes the rights of third parties including, without limitation, copyright rights, trademarks, rights of privacy or publicity and/or any other proprietary right; and/or that is designed to obtain unauthorized access to any information; and
- You shall not use the Services for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Services provided.
b. Affidavit of Commissary. Within fifteen (15) daysupon the Mobile Restaurateur’s termination of its account with Restaurant Peer, the Mobile Restaurateur shall provide Restaurant Peer with a new affidavit of commissary from the state where Mobile Restaurateur transacts business, signed by the applicable commissary or commercial kitchen provider.
V. USE OUTSIDE DEFINED AREA
VI. PURCHASES AND FEES
The Mobile Restaurateur and Host shall abide by the fees for the Services as further set forth below:
Mobile Restaurateur Fees. The following terms and conditions in this section relate to the Mobile Restaurateur:
- Fees for Kitchen Space. Restaurant Peer provides the Services, which permits the Mobile Restaurateur to send funds to Hosts registered with Restaurant Peer that are due by the Mobile Restaurateur to the Host in relation to the Host providing certain commercial kitchen space and related services to the Restaurateur. If the Mobile Restaurateur connects with a Host via the Services which lead to the Host providing certain commercial kitchen space and related services, the Mobile Restaurateur and Host agree to finalize their booking of such commercial kitchen space and related services through the Services. In such event, the Mobile Restaurateur agrees to pay the Host the pre-set fees listed on the Services based on the number of kitchen hours needed for a minimum of one (1) month usage of the Host’s commercial kitchen space (the “Kitchen Fees”) and any Additional Fees (as defined below) agreed to by the Mobile Restaurateur and Host.
- Additional Fees. The Mobile Restaurateur may select services in addition to renting commercial kitchen space, including but not limited to storage, kitchen services, parking and cleaning services agreed to between the Host and the Mobile Restaurateur for additional fees as listed on the Services (the “Additional Fees”). The Kitchen Fees and Additional Fees shall collectively be referred to herein as “Fees”. All Fees shall be due and payable monthly in advance.
- Changes. All Fees are mutually agreed upon by the Mobile Restaurateur and Host shall be pre-set for a minimum period of one (1) month and cannot be decreased. The Mobile Restaurateur may, however, choose to increase the kitchen space hours and related services and the fees owed for such month which will be adjusted based on the Restaurateur’s added usage with any additional payment due immediately via the Services upon such change. Such changes shall auto-renew each month thereafter, unless changed or otherwise cancelled by the Host and/or Mobile Restaurateur through the Services. Any decrease in services may be scheduled at any time; provided such decrease shall become effective thirty (30) days following the request for such change.
- Price Matching. Restaurant Peer offers price-matching against its competitors (as determined by Restaurant Peer in its sole and absolute discretion) for its Peer-to-Peer Connection Fee, and allows users the opportunity to provide written evidence of a lower fee offered by a competitor and upon Restaurant Peer’s review and approval, Restaurant Peer will adjust the Peer-to-Peer Connection Fee to match such competitor’s fee, as well as provide a credit to the Mobile Restaurateur’s account in the amount of one hundred US dollars ($100.00) to be applied towards commercial kitchen space and/or additional services rendered by Hosts to the Mobile Restaurateurwithin thirty (30) daysfollowing the date of Restaurant Peer’s approval.
Host Fees.The following terms and conditions in this section relate to the Host:
- Authorization; Services Fee. The Host hereby appoints Restaurant Peer as the Host’s agent for receipt of payments from the Mobile Restaurateur. In consideration of Restaurant Peer’s provision of the Services, the Host agrees to pay Restaurant Peer in an amount equal to twenty-five percent (25%) of the then-current Fees (the “Host Fees”).. The then-current amount of the Host Fees is posted on the Services. Notwithstanding anything herein to the contrary, Restaurant Peer reserves the right to deduct the applicable Host Fee from the Fees before remitting payment of the Fees to the Host. Restaurant Peer reserves the right to change the amount of, or basis for determining, any Host Fees, and to institute new Host Fees or terms at any time effective upon notice to you.
- Payment. The Fees due to the Host (less the Host Fees in all instances) shall be due and payable by Restaurant Peer on a monthly basis as follows: twenty-five (25%) of the Fees shall be due and payable to the Host one (1) business day following Restaurant Peer’s receipt of payment from the Mobile Restaurateur and the remaining Fees shall be due and payable to the Host at the end of the calendar month. The remaining Fees shall be provided to Host so long as the Host provides all applicable commercial kitchen space and applicable related services to the Mobile Restaurateur. Restaurant Peer shall make such payments via automated clearing house transaction, or by such other means as Restaurant Peer may determine. Notwithstanding anything herein to the contrary, the Host agrees that Restaurant Peer may, in its sole and absolute discretion, provide a refund to the Mobile Restaurateur in the event that the Host (i) is fraudulent, (ii) did not provide the agreed upon commercial kitchen space and/or additional services or (iii) in other situations where Restaurant Peer determines in its sole and absolute discretion that the transaction should be refunded.
General Payment Terms for Hosts and Mobile Restaurateurs
Payment Processing. You will be required to set up an account through www.RestaurantPeer.com in order to facilitate payments through the Services. Restaurant Peer uses a third party for payment processing which is currently ‘PayPal’ and ‘QuickBooks’, but may be changed from time to time in Restaurant Peer’s sole and absolute discretion. You acknowledge and agree that you will be liable for all fines, chargebacks, refunds and other expenses incurred in the enforcement of any third party provider agreements and further agree to reimburse Restaurant Peer for any and all such fines, chargebacks, refunds and other expenses incurred related thereto. You authorize Restaurant Peer to keep your payment account information on file and to withdraw fees and costs due hereunder. If your payment account information on file with us changes or you close your payment account, or if, for any reason, a charge is rejected by your bank or credit card, as applicable, you must immediately update your payment account information or supply a new payment account number, as appropriate, in your Restaurant Peer account. If a payment is rejected, then Restaurant Peer will send an invoice to your email address on file detailing the amount due. You must pay the amount due in full within seven (7) days from the date of the invoice, or your account will be considered past due and Restaurant Peer may suspend and/or terminate your account, and/or any upcoming services, without liability, and seek all available remedies at law and in equity.
Responsibility For Taxes. You are responsible for all forms and types of taxes associated with the Services and your use of the Services including without limitation the collection and remittance of applicable taxes to the appropriate taxing authority. In no event shall Restaurant Peer owe any taxes attributable to your income and/or payroll.
Pricing and Promotions. When you use the Services, you will be responsible for any additional third-party fees, including but not limited to payment processing fees, costs and/or taxes related thereto. Notwithstanding anything herein to the contrary foregoing, Restaurant Peer may vary its pricing from time to time and/or offer promotions from time to time, in Restaurant Peer’s sole and absolute discretion, which shall be stated on the Services and applied at checkout. Applicable promotions may be viewed at www.RestaurantPeer.com/promos .
Communication. Hosts and Mobile Restaurateurs shall be responsible for communicating directly with each other regarding any exchanges and/or refunds of services and Restaurant Peer is not liable for anything related to the relationship between the users of the Services. If the Host and/or Mobile Restaurateur are engaged in a dispute and such dispute cannot be resolved, you may submit a complaint to Restaurant Peer for Restaurant Peer to investigate at email@example.com .
VII. ERRORS, INACCURACIES, OMISSIONS AND PERFORMANCE
Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, contact information, address, and events. We reserve the right to: (i) correct any errors, inaccuracies, and/or omission; and/or (ii) make changes to content, stories, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. We also reserve the right to revise, suspend and/or terminate an event, stories, content and/or promotion at any time without notice and without liability.
VIII. PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. The materials, headers, videos, illustrations, photographs, graphics and content on the Services, as well as the organization and layout of the Services, are copyrighted and are protected by United States and international copyright laws and treaty provisions. Subject to the limited rights expressly granted hereunder, Restaurant Peer and/or its third-party providers reserve all right, title and interest in and to the services and content, including all related worldwide intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
Feedback. If you provide us (in a direct mail, email and/or otherwise) with any feedback, suggestions, improvements, enhancements, ratings and reviews, recommendations and/or feature requests relating to the Services (“Feedback”), then you will own this material, however, you grant to Restaurant Peer a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate any such Feedback and material. Restaurant Peer has no obligation to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion.
Gathering email addresses from Restaurant Peer through harvesting or automated means is prohibited. Posting and/or transmitting unauthorized and/or unsolicited advertising, promotional materials, and/or any other forms of solicitation to other users is prohibited. We also prohibit crawling, scraping, caching, and/or otherwise accessing any content on the Services via automated means (except as may be the result of standard search engine protocols and/or technologies used with Restaurant Peer’s express written consent). You may not use the Services in any manner that could damage, disable, overburden, and/or impair the Services and/or interfere with any other party’s use and/or enjoyment of the Services.
IX. USER DISPUTES; SAFETY
Safety. We encourage safe communication and interaction through our Services. However, we advise you that the Services are intended to be a safe platform to exchange information, referrals, and make connections but it is still open to the public and you should exercise your best judgment when posting personal information on the Internet.
X. DATA CHARGES AND MOBILE PHONES
You are responsible for any mobile charges that you may incur for using the Services, including but not limited to data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Services.
XI. TERM; TERMINATION
XII. INDEMNIFICATION AND WAIVER
You acknowledge and agree that by accessing or using the Services, you may be exposed to materials (including shared group content) from others that you may consider offensive, indecent or otherwise objectionable, and agree to accept that risk.
XIII. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
XIV. LIMITATION OF LIABILITY
YOUR USE OF THE SERVICES AND CONTENT IS AT YOUR OWN RISK. IN NO EVENT SHALL RESTAURANT PEER, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF RESTAURANT PEER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY RESTAURANT PEER ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSIONAND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, RESTAURANT PEER’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
RESTAURANT PEER’S MAXIMUM AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF ITS PARTNERS AND LICENSORS, TO YOU IN ANY CIRCUMSTANCE ARISING OUT OF AND/OR RELATING TO THE SERVICES IS LIMITED TO ONE HUNDRED DOLLARS (US$100.00).
XV. SEPARATE AGREEMENTS
You may be required to agree to additional terms and conditions before accessing or using certain areas of the Services (“Additional Agreements”). The terms of any Additional Agreement (which may include payment of additional fees) will apply to the applicable area of the Services in addition to the terms of this Agreement. If there is a conflict between this Agreement and any Additional Agreement, the terms of the Additional Agreement will control with respect to your use of or access to that area of the Services.
XVI. NO PROFESSIONAL ADVICE
Restaurant Peer does not endorse any Host, Mobile Restaurateur or any other user, posting, User Content or other information providing through the Services. The information available on the Services is intended to be a general information resource regarding the matters covered, and is not tailored to your specific circumstance. Restaurant Peer does not, will not and cannot refer, recommendand/or endorse any specific professional service, productand/or procedures that are advertised on the Services. Hosts may create listings for available kitchen space through the Services and Mobile Restaurateurs may access such available space. Restaurant Peer has no control over the conduct of Hosts,Mobile Restaurateur, third parties or other users of the Services nor does Restaurant Peer control the condition or suitability of any kitchen space. The Services are not a substitute for professional advice, and you should not construe this as legal, tax, financial, medicaland/or other professional advice.
XVII. LINKED SITES
XVIII. THIRD PARTY SERVICES
The Services may be made available and/or accessed in connection with third party services and content that Restaurant Peer does not control. Restaurant Peer may post advertisements of third parties through the Services, including without limitation promotions of advertisers, location based-ads, and/or sponsors showing their goods and services. Your correspondence, participation in, and/or any other dealings with third parties found through the Services are solely between you and such third party. Restaurant Peer does not endorse such third-party services and content and in no event shall Restaurant Peer be liable for any products and/or services of such third-party providers. You agree that Restaurant Peer shall not be responsible for any loss and/or damage of any sort incurred as a result of any such dealings and/or as the result of the presence of such third parties through the Services. Moreover, Restaurant Peer shall not be responsible and/or liable for the accuracy, quality, suitability, currency and/or content of the statements and/or conduct of any third party on the Services. You are solely responsible for the costs, expenses and infrastructure required to support your use of the Services. You acknowledge and agree that Restaurant Peer utilizes third party providers to provide the Services and any terms and conditions related to such third party providers products and/or services shall govern the use of such third party providers’ products and/or services. You acknowledge and agree that Restaurant Peer is not liable for the performance of any third party providers’ products and/or services.
XIX. DISPUTE RESOLUTION
Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described below, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversyand/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating toand/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Denver, Colorado or any other location we agree to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
Exceptions to Agreement to Arbitrate. Either you and/or Restaurant Peer may assert claims, if it qualifies, in small claims court inDenver, Colorado. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use and/or abuse of the Services, breach of Restaurant Peer’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described herein.
Judicial forum for disputes. In the event that the agreement to arbitrate is found not to apply to you and/or your claim, you and Restaurant Peer agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts ofDenver, Colorado. Both you and Restaurant Peer consent to the foregoing venue and jurisdiction.
XX. DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Restaurant Peer respects the intellectual property rights of others and expects you to do the same. We reserve the right to block access toand/or remove material that we believe in good faith to be copyrighted material that has been illegally distributed by youand/or other third parties and remove and discontinue service to repeat offenders. We will respond to clear notices of copyright infringement when you provide the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled;
- information sufficient to permit Restaurant Peer to contact you, such as your physical address, telephone number, and, if available, an electronic mail address;
- a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Contact information for Restaurant Peer’s DMCA Agent for notice of claims of copyright infringement is:Restaurant Peer, Attn: Copyright Agent, 12081 West Alameda Parkway, #485, Lakewood, Colorado 80228 ( firstname.lastname@example.org ).
The Copyright Agent will not remove content from the Services in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Services linked to and/or from the Services. All other inquiries directed to the Copyright Agent will not be responded to.