Terms of Service - Canada
nutrifile Vendors
Effective: January 01, 2022
BEFORE YOU ACCESS OR USE THE NUTRIFILE WEB-STORE ("PLATFORM") PLEASE READ THE FOLLOWING TERMS. BY COMPLETING THE SIGN-UP FORM OR WEB-STORE ORDER SECTION WITH NUTRIFILE, INC. OR USING AND/OR ACCESSING THE PLATFORM, YOU AND/OR ANY ENTITIES WHICH YOU REPRESENT, INCLUDING ALL PARTICIPATING STORES AND/OR LOCATIONS YOU OR THE ENTITY YOUR REPRESENT OWN ("VENDOR” and/or “YOU”) AGREE TO THESE TERMS AND ALSO TO ALL THE TERMS ON THE SIGN-UP FORM OR WEB-STORE ORDER SECTION.
SECTION 19 OF THE AGREEMENT HAS PROVISIONS WHICH GOVERN THE MANNER IN WHICH CLAIMS THAT WE AND YOU HAVE AGAINST THE OTHER ARE SETTLED, WHICH INCLUDE BUT ARE NOT LIMITED TO, ANY CLAIMS WHICH WERE ASSERTED OR AROSE BEFORE THE DATE ON WHICH THIS AGREEMENT WAS EFFECTIVE. SECTION 19, IN PARTICULAR, ESTABLISHES OUR ARBITRATION AGREEMENT THAT, WITH LIMITED EXCEPTIONS, WILL REQUIRE THAT ANY DISPUTES AMONGST US TO BE DELIVERED TO FINAL AND BINDING ARBITRATION. BY AGREEING TO THE ARBITRATION AGREEMENT (THUS SELECTING TO NO OPT OUT): (A) YOU SHALL ONLY BE ALLOWED TO SEEK RELIEF OR PURSUE CLAIMS AGAINST US AS AN INDIVIDUAL, NOT AS A CLASS MEMBER OR PLAINTIFF IN ANY REPRESENTATIVE OR CLASS PROCEEDING OR ACTION; AND (B) YOU WAIVE ANY RIGHT TO PURSUE RELIEF VIA COURT OF LAW, THUS WAIVING ANY RIGHT TO A TRIAL BY JURY ON YOUR CLAIMS. THE ARBITRATION AGREEMENT MAY AFFECT YOUR RIGHT TO BE INVOLVED IN ANY PENDING PROPOSED REPRESENTATIVE AND/OR CLASS ACTION LITIGATION. REFER TO SECTION 19 FOR ADDITIONAL DETAILS REGARDING THE ARBITRATION AGREEMENT, FURTHER POSSIBLE EFFECTS OF THE ARBITRATION AGREEMENT, AND THE MANNER BY WHICH YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT.
A. Definitions.
1. “Deliverer” means any delivery executor employed by the Vendor responsible for the respective order to which they are responsible.
2. “Order API” means the nutrifile application programming interface (API) which allows the Vendor to exchange information and/or data with nutrifile.
3. “nutrifile Data” will refer to any information which nutrifile makes accessible to or provides to the Vendor via the nutrifile Platform, which includes without limit any Personal Information.
4. “Finder” refers to the Finder who sends an order for Vendor Products via the nutrifile Platform.
5. “nutrifile Web-Store” means the online communication platform owned by nutrifile where Finders may view and search for Vendor products and/or place orders for Vendor Products via the nutrifile mobile application or website for for pickup by the Finder or delivery via a Deliverer to the Finder.
6. “nutrifile Platform” means nutrifile Web-Store.
7. “nutrifile Services” means nutrifile Platform.
8. “Web-Store Orders” refers to orders for Vendor Products through the nutrifile Platform via Finders for pickup at the Vendor’s location and/or delivery by Deliverers to the Finder.
9. “Vendor” means the entity or restaurant which has agreed to access/use and/or participate in the nutrifile Services.
10. "Vendor Portal" is a website, accessible via https://www.nutrifile.org/Vendor/ by which a Vendor may and should regularly confirm and view its transactions, charges and fees as well as its account on the nutrifile Platform.
11. “Vendor Products” refers to all products available for take-out or pick-up or delivery orders via Vendor Stores.
12. “Vendor Stores” means the Vendor restaurant locations which participate in the nutrifile Services and includes: (i) Vendor Stores which are owned and are operated by Vendor or its affiliated entities, and/or (ii) Vendor Stores which are owned and are operated by the Franchisees of Vendor or its affiliated entities.
13. “Web-Store Term” refers to the term and/or condition of the agreement between nutrifile and Vendor for the nutrifile Platform.
14. “Pick-Up Orders” refers to orders for Vendor Products through the nutrifile Platform via Finders for pick-up by the Finder.
15. “Pick-Up Program” refers to the Finder’s ability to search for and view the menus of Vendors and to send an order for Vendor Products via the nutrifile Platform for pick-up by the Finder.
16. “Order” means a Web-Store Order, or a Pick-Up Order, or a Deliverer order as applicable.
17. “Order Equipment” refers to any equipment, within reason, which is required by nutrifile for Vendor to collect and process Orders, that includes without limit, a fax machine, tablet, or other electronic or automated methods of receiving Orders.
18. “Personal Information” will refer to any information given or received under this Agreement which (i) can be utilized to identify or does identify an individual (which includes without limit, telephone numbers, names, signatures, e-mail addresses, physical addresses or any other identifiers of a unique nature) or (ii) which could reasonably be utilized to authenticate individuals (which includes without limit, precise location, persistent identifiers, contact information, name, as well as any information which can be deemed ‘personal information, or ‘personal data’ via applicable law).
19. “Commission Rate” refers to the commission fees gathered by nutrifile in exchange for featuring and promoting the Vendor and Vendor Store(s) on the nutrifile Platform, that is charged in the form of a percentage of the revenues transacted via the nutrifile Platform, which are calculated pre-tax.
20. “Schedule for Postponed Order” will refer to an Order which is to be met at a specified time later on in that same day or on a later date altogether.
21. “Terms” refers to the conditions and/or provisions herein.
22. “Third Party Platform” refers to technology interfaces, for example: a middleware software platform, apart from the online order form as well as the Delivery API which enables Vendor to complete delivery fulfillment by providing the necessary information to process such delivery fulfillment.
B. The Parties' Relationship.
nutrifile provides the nutrifile Web-Store using technology which is web-baseed and that connects vendors, Deliverers, and Finders as described in the Terms for the nutrifile Platform. Occasionally, nutrifile may list Vendor on the nutrifile Web-Store subject to Commission Rate(s) which are set forth on the Sign-Up Form upon prior written notice to Vendor. Nutrifile is not a Vendor, delivery service, or seller of goods; it is a connection platform which operates via the internet. Vendor and nutrifile agree that they operate as and are independent businesses with a relationship which is dictated by the Sign-Up Form, these Terms, as well as any terms which are applicable amongst the Parties. Nothing within the Parties’ agreements, transactions, or relationship will create be deemed as creating a partnership, agency, joint venture or fiduciary relationship between nutrifile and Vendor (or Vendor’s representatives, locations, or employees), nutrifile and Deliverer, or nutrifile and Finders. Except as specifically set forth via the Sign-Up Form, these Terms, as well as any applicable terms amongst the Parties, every single party will be responsible for the profits, losses and expenses they incur.
C. nutrifile Web-Store Core Responsibilities.
For Vendors which have agreed to take part in the nutrifile Web-Store, nutrifile and Vendor will be responsible for the following items during the Web-Store Term:
1. nutrifile Core Responsibilities. nutrifile will, in timely form:
i. Display Vendor’s logo, a list of Vendor Products, and the details of those Vendor Products as expressed by the Vendor on the nutrifile Platform;
ii. Accept Web-Store Orders from Finders;
iii. Forward each Web-Store Order to the Vendor Store selected; and
iv. Forward each Vendor acceptance of an Order to the requesting Finder so that their request is confirmed.
v. Pay the Vendor in line with the agreements of the Parties, deduct applicable Commission Rate(s), subscription fees, marketing fees, Activation Fees, as well as any other fees (as can be adjusted, in each case, by nutrifile so as to meet the requirements of any applicable statute, executive order, regulation, or any other legal requisite which is either permanent or temporary in nature).
2. Vendor Core Responsibilities. Vendor will, in timely form:
i. Provide nutrifile with the Vendor’s take-out or in-store menu, as well as the price of every item contained in such menu;
ii. Monitor Vendor’s store information and menu on the nutrifile Platform, make updates in a timely manner via the Vendor Portal to express the most current pricing, products, and other such information or promptly notify nutrifile of any changes or errors via written communication;
iii. Accept all Web-Store Orders placed by nutrifile from Vendor’s current menu at the time;
iv. Confirm all Web-Store Orders from nutrifile;
v. Prepare the Vendor Products for each Web-Store Order for the Vendor’s Deliverer at the preordained time;
vi. Process Web-Store Orders in the same order that they are received;
vii. Send notice to nutrifile of changes to the description, pricing, availability, or other attributes of the Vendor Products;
viii. Notify nutrifile of its hours and days of operation, and stay open and accessible for business on nutrifile the same hours and days of operation as Vendor’s in-store business; send notice to nutrifile of changes to Vendor’s hours of operations with regards to holidays; and notify nutrifile if Vendor closes earlier than Vendor’s standard operating hours or if Vendor plans to close before its standard operating hours;
ix. Notify all Vendor store staff of the working relationship with nutrifile immediately upon commencement of this Agreement;
x. Supply the same bags, utensils, napkins, and other materials which Vendor would provide during a standard delivery or take-out order, as governed by Section 15(3)(i);
xi. On an continual basis, confirm and review the, fees, charges and transactions on orders by using the Vendor Portal, and communicate to nutrifile in a timely manner any inaccuracies and/or discrepancies; and
xii. If nutrifile gathers and passes tips via Finders to Vendor, Vendor will distribute all such tips as required by applicable law, which includes without limitation, towards tip pooling laws.
D. Deliverer Core Responsibilities.
For Vendors which have agreed to list their products as deliverable on the nutrifile Platform, nutrifile and Vendor will be responsible as follows during the Deliverer Term:
1. nutrifile Core Responsibilities. nutrifile will, in timely form:
i. Provide Vendor with an order form via online request from a Finder or access to receive information via Third Party Platform;
2. Vendor Core Responsibilities. Vendor will:
i. Accept and gather payments from Finders as they pertain to their respective orders;
iii. Send notice to Finders before sending their Deliverer to complete the order that the Finder’s telephone numbers and personal contact information shall be sent to nutrifile so as to prove that an order was made and received, and with regards to the respective deliveries, request the Finder’s consent to receive status updates, pertaining to the associated delivery, via text messages, e-mail and telephone from nutrifile and Deliverers;
iv. Notify nutrifile if a Finder has not given their permission to receive delivery status updates or has set any restrictions on the types of delivery status updates such Finder permits to receive (e.g., no phone calls). Vendor hereby permits the reception of email confirmations and text messages from nutrifile providing delivery confirmations and status updates as pertains to each delivery.
v. On a continual basis, confirm and review the charges, transactions, and fees on invoices and through the Vendor Portal, and in a timely manner communicate to nutrifile any inaccuracies.
3. Deliverer Operating Process.
i. Operating Hours. Deliveries shall be scheduled to occur during nutrifile’s standard operating hours, which can be updated via nutrifile’s sole discretion. Vendor agrees to be bound by the standard procedures as follows: (i-a) to notify nutrifile of changes to its operating hours on federal holidays via adequate advance notice; and (i-b) to notify nutrifle with adequate advance notice if any Vendor location closes before the standard operating hours or plans to close before the standard operating hours.
ii. Delivery Radius. nutrifile shall only make available Finder inquiries from within a preset radius as regards delivery, based on either Vendor or Finder location, which shall be disclosed to Vendor.
E. Pick-Up Process Core Responsibilities.
For Vendors which have agreed to take part in the Pick-Up Process, throughout the Pick-Up Process term, nutrifile shall have the same responsibilities as were set forth throughout Section C(1)(i) - C(1)(iii) and Vendor shall have the same responsibilities as were set forth throughout Section C(2)(i) - (xii). Additionally, once nutrifile allows the ability for Vendor to establish different prices for Vendor Products via the Pick-Up Process than prices set for such Vendor Products for delivery, Vendor will ensure the pricing of Vendor Products via the Pick-Up Process not be greater than the pricing of equivalent/same Vendor Products for Pick-Up (1) on any third party delivery and/or food ordering platform and (2) the price found in-store. nutrifile shall apply the Commission Rate pertaining to Pick Up Orders stipulated in this Agreement to Pick-Up Orders sent by Finders via the Pick-Up Process.
F. Re-Orders and Refunds.
Re-orders and refunds shall be addressed in the following ways:
1. Web-Store Order Refunds.
If nutrifile, in its lone reasonable discretion, must issue a re-order, credit or refund on a Finder’s Order, Vendor shall prepare such food to the exact same specifications as originally ordered (in case of re-order) and cover the entire cost of that re-order, credit or refund, as applicable, unless such re-order, credit, or refund is due via the fault of nutrifile.
2. Deliverer Order Refunds.
Vendor agrees and acknowledges that nutrifile will be only held responsible for providing the delivery order details to Vendor as they pertain to the Finder’s request for Vendor Product(s). Vendor will be fully responsible for Finder complaints pertaining to Vendor Product(s), which includes without limit, complaints about the timely delivery, macronutrient and micronutrient labeling accuracy, quality, number, packaging, nature, or content of Vendor Product(s). Vendor agrees to not redirect any Finder complaints to nutrifile directly. If Vendor chooses to refund a Finder for any reason, a choice as such will not obligate nutrifile to supply a corresponding refund to Vendor. For purposes pertaining to this Agreement, “Vendor Products'' refer to the actual beverage or food item, not any packaging which contains the Vendor Products. nutrifile will not be obligated, in any event, to issue refunds of any sort directly to Finders.
3. PickUp Order Refunds.
nutrifile will be responsible for Finder support issues pertaining to orders of Vendor Products and issues pertaining to a Finder’s nutrifile account. Any other Finder complaint or issue shall be Vendor’s lone responsibility. If nutrifile, via its lone discretion, chooses to issue a re-order, credit, or refund for a Finder’s Order, Vendor shall prepare such food to the exact same specifications as were originally ordered (in case of re-order) and cover the entire cost of that re-order, credit, or refund.
G. Order Equipment.
With regards to the nutrifile platform, Vendor will access and utilize any equipment required, within reason, by nutrifile for Vendor to process and receive Orders (such as electronic methods and means of accessing and receiving Orders, referred to as “Order Equipment”).
H. Fees, Payment, Taxes and Title.
Fees, payment, and taxes will be addressed as disclosed by the following:
1. nutrifile Web-Store.
nutrifile will pay for Web-Store and Pick-Up Orders executed by Vendor every week on a specific uniform day of every week, which is subject to change with at least 10 days notice beforehand to Vendors by service notification or email. nutrifile will be entitled to subtract from these payments nutrifile’s Commission Rate, activations fees, marketing fees (for identifiable orders), as well as any other fees that nutrifile may notify Vendor of with no less than 7 days prior written notice. Vendor agrees nutrifile can charge the Finder fees, which include without limit, a Service Fee, Delivery Fee, Small Order Fee, and Surcharge Fee where applicable via nutrifile’s lone discretion. Vendor will be responsible regarding all duties, taxes, and other charges via the government towards the sale of Vendor Products as well as for remitting such duties, taxes, and other charges via the government to the proper authorities. Vendor will be responsible, as well, for all duties, taxes, and other charges via the government towards the Promotion Fee, which nutrifile will be responsible in regards to withholding and then remitting to the proper authorities. If Vendor raises any of its menu item prices, nutrifile will not be obligated to remit the greater price to Vendor until 3 business days following that which the Vendor first provides nutrifile notice of a pricing change as such.
2. nutrifile Delivery Order.
Vendor will pay nutrifile a fee per Delivery Order as mutually agreed. Vendor will be responsible for any duties, taxes, and other charges via the government towards the sale of Vendor Products as well as for remitting such duties, taxes, and other charges via the government to the proper authorities. As agreed to by the parties, such payment of all fees pursuant to this Section H(2) will be in the following manner: (i) Vendor will pay the fees via credit card ACH upon the time of an order, or (ii) nutrifile will invoice Vendor on a month by month basis and Vendor will pay the invoice in no more than 7 days of such invoice’s receipt. Should any fee not be paid in full come the due date, nutrifile can assess interest on such unpaid amount for a timespan which begins upon the invoice Payment Date and ends on the date in which said amount is fully paid. The amount accrued by interest which is owed and paid will not be greater than the maximum rate allowed by applicable law.
3. Vendor agrees, on a continual basis, to confirm and review its transactions, charges, and fees on invoices and orders and via the Vendor Portal, and to expediently communicate to nutrifile in writing any claims of inaccuracy, so that nutrifile has the timely opportunity to resolve and/or address any such issues so that such do not continue to persist, which nutrifile and Vendor agree is towards the mutual interest of both parties as well as their commercial relationship. Vendor agrees to notify nutrifile of any non-conformity, disagreement, or any issue related to any transaction, charge, order, or fee in no more than 60 days of said transaction, order, or fee. Vendor will be considered to have accepted, ratified, and to have chosen to waive any objection or claim regarding, each fee, order, transaction and charge if Vendor does not notify nutrifile via written objection or claim of such fee, order, transaction, or charge within a 60-day period.
4. Vendor agrees that Vendor maintains title to the products or goods that Vendor provides via the Platform until products or goods are received from Vendor, als that title shall pass from the Vendor to the Finder during pick-up at the Vendor’s location. Vendor agrees that nutrifile does not hold title to and does not acquire title to, or any ownership interest in such products or goods that Vendor provides or prepares via the Platform.
I. Payment Processing via Stripe.
Payment processing services for Vendors on the nutrifile Platform are provided via Stripe and are dictated by the Stripe Connected Account Agreement, which also includes the Stripe Services Agreement. By agreeing to Stripe’s Terms, Vendor agrees to be subject to the Stripe Connected Account Agreement as well as the Stripe Services Agreement, all which may be modified by Stripe at their discretion. As a requisite of nutrifile enabling such payment processing services via Stripe, Vendor agrees to provide nutrifile complete and accurate information about Vendor’s business and its representative, and Vendor authorizes nutrifile to share such information as well as transaction information connected to Vendor’s use of payment processing services made available by Stripe. Stripe is an audited company, their auditors are PCI-certified and Stripe the organization is a Level 1 PCI Service Provider.
J. Vendor Content and Trademark; Photographs of Menu Items.
1. During the Web-Store Term Vendor grants to nutrifile a non-exclusive, limited, non-transferable, non-sublicensable, royalty-free, license and right to display and use Vendor Content for the provision of the Platform’s services to Vendor, including listing Vendor as a Vendor on the nutrifile Platform, referencing Vendor as a nutrifile partner, and to promote nutrifile’s services and products. As utilized herein, “Vendor Content” encompasses, without limit, photographs (provided by Vendor or on Vendor’s website), logos, trademarks, menus, and other materials submitted by Vendor to nutrifile.
2. If photographs of Vendor’s products cannot be made available or if they fail to meet nutrifile’s requirements, as reasonably set by nutrifile, then Vendor consents to nutrifile (i) enlisting a professional photographer for the purpose of taking photographs of Vendor’s products (ii) increasing the quality of Vendor’s existing product photographs, or (iii) utilizing stock photos of the products and displaying these photographs via the nutrifile Platform as depictions of Vendor’s products; provided that Vendor may contact nutrifile support for the purpose of removing such photographs from the Vendor’s store listing, and nutrifile, to such a request, will comply within an adequate timespan.
K. Confidential Information.
1. The specified term “Confidential Information” will refer to any/all proprietary or confidential business, financial or technical materials or information of the party (“Disclosing Party”) which provides to the receiving party (“Receiving Party”) in relation to this Agreement, whether in physical form or orally, and will include the terms within this Agreement. Without limitation to the foregoing, nutrifile Data is nutrifile’s Confidential Information.
2. Confidential Information does not encompass information which: (i) was - by the Receiving Party - rightfully known without restriction towards its use or disclosure before such information was disclosed towards the Receiving Party in relation with the Agreement; (ii) becomes or was public domain in ways other than the Receiving Party’s fault; (iii) is or was received via the Receiving Party on a basis which was not confidential from a third party which, to the knowledge of the Receiving Party, was not under obligation - at the time - to maintain such confidentiality; or (iv) such information the Receiving Party may prove via documentary record was developed developed independently by the Receiving Party with no access to, reference or use of any Confidential Information.
3. The Receiving Party will: (i) not use or access Confidential Information in ways other than as needed to perform its obligations or exercise its rights in accordance with the Agreement; (ii) except in the case it is being governed via its compliance to Section K(4), not permit access to or disclose Confidential Information to any persons or entities which are not any of its legal advisors, subcontractors, service providers, independent contractors, agents, consultants, directors, officers, and employees (“Representatives”) who would need to know Confidential Information for reasons tied to the Receiving Party’s ability to exercise its rights or perform its obligations in accordance with and under the Agreement, and before such a disclosure are bound via restricted use obligations and written confidentiality which is at minimum as protective of such Confidential Information as the stipulations expressed in this Section; (iii) protect the Confidential Information against unauthorized use, disclosure, or access using at the minimum a degree of care equivalent to that which it uses to guard its similarly/most sensitive information; and at all times at least a degree of care deemed reasonable must be applied.
d. Should the Receiving Party be compelled by the appropriate Law to disclose Confidential Information then, to such extent permitted by the appropriate Law, the Receiving Party will notify - in a timely manner - the Disclosing Party via writing of any such requirement to allow the Disclosing Party to seek any remedy or protective order or waive such rights it has under Section K(3) and also provide to the Disclosing Party reasonable assistance, upon the Disclosing Party’s expense, in opposing and/or seeking any protective limitations on such disclosure.
L. Security and Data Privacy.
1. General.
Vendor agrees not to disclose, use, transfer, retain, store, collect, access, or in any other way process nutrifile Data, which includes without limit Personal Information, except in the manner needed to perform under the Agreement. Vendor will keep nutrifile Data protected against unauthorized access and keep the integrity and accuracy of nutrifile Data in Vendor’s control or custody by utilizing the appropriate physical, technical and organizational security methods. If Vendor becomes cognizant of such unauthorized access to nutrifile Data, Vendor will - as quickly as possible - notify nutrifile, cooperate with and consult investigations and any applicable required notices, and supply any information that may be reasonably requested by nutrifile. Vendor agrees to implement and utilize security protocols, procedures or access such credentials as may be reasonably requested by nutrifile and shall be liable for damages which result from Vendor’s failure to comply. Vendor shall not permit any third party to utilize the nutrifile Platform and shall be liable for damages which result from sharing Vendor’s login credentials with any unauthorized third parties or for otherwise allowing unauthorized access to Vendor’s account. Vendors can not allow third parties to reverse engineer, distribute, sell, lease, rent, modify, copy, or - in any other manner - attempt to access the nutrifile Platform source code; destroy, impede, or damage the services provided via the nutrifile Platform; transmit injurious code; or breach or bypass any security safeguard on the nutrifile Platform.
2. Delivery Order API.
Upon a Delivery Order, nutrifile grants to Vendor limited, revocable, non-sublicensable, non-transferable, non-assignable, royalty-free, non-exclusive, fully paid-up license by which to access the Delivery Orders API only to transfer information to facilitate delivery via the Vendor’s Deliverer. Vendor shall not and shall not authorize or permit a third party to: (i) transfer, assign (except as allowed herein), lease, resell, rent, license, sell or in any other manner commercially exploit nutrifile’s Delivery Order API; (ii) disable or circumvent any safeguard or other technological measures or features of, or in any other manner gain or attempt unauthorized access to nutrifile’s Delivery Order API; (iii) decompile, dissemble, reverse engineer, or in any other manner attempt to derive the underlying ideas or source code, organizations, structure, or algorithms of nutrifile’s Delivery API; (iv) use nutrifile’s Delivery APY in any such manner or for such purpose that goes against any regulation or law; and (v) use nutrifile’s Delivery API for any reason other than as expressly intended or provided within this Agreement. Each and every Party agrees to not perform any action with any intent of introducing to any other Party’s products, systems, or services (including nutrifile’s Delivery API) any worms, viruses, malways, Trojan horses, defect, or any items that are of a nature which is destructive.
M. Termination.
Vendor can terminate the Agreement at any time for any reason upon prior written notice of seven (7) days. nutrifile can terminate the Agreement or any promotion within the Agreement at any time for any reason upon written notice. Email will suffice for such written notice. Neither Vendor nor nutrifile shall be obligated to pay any termination fee, or be responsible to the other party for - as a consequence of the Agreement’s termination - for any loss of prospective profits, anticipated income, goodwill, for any damages, or for any commitments, leases, investments or expenditures made by either Vendor or nutrifile.
N. Modifications.
nutrifile reserves, at its own discretion, the right to discontinue, suspend, or change the Platform (which includes without limit, any content or feature and its availability) at any time. nutrifile may, at its own discretion, remove Vendor Stores or Products from the nutrifile Platform if nutrifile deems that such Vendor Store or Vendor Product could subject nutrifile to safety and health risk, undue regulatory risk, or any other liability. nutrifile may also change these Terms periodically. Such changes shall not be retroactive, the most up-to-date version of terms will be located at <NEED LINK HERE>. We will notify Vendors of material changes with an email to the address connected to your account or by service notification. By continuing to use or access the Services beyond the time at which such revisions take effect, you acknowledge and agree to be governed by such revised Terms.
O. Warranties and Representations; Warranty Disclaimer; Additional Responsibilities.
1. Each party warrants and represents that it maintains the full authority, power, and right to ratify and perform its duties and obligations pursuant to this Agreement whilst not breaching any obligation or duty to a third party.
2. Each party warrants and represents that it shall comply with applicable regulations and laws in its performance towards its obligations under this Agreement, which includes without limit (i) all appropriate privacy laws and data protection, and (ii) all appropriate laws pertaining to proprietary rights, and intellectual property rights of third parties.
3. Vendor further warrants, agrees, and represents that (i) shall comply with all appropriate laws, regulations, rules and standards relating to sanitation, food safety, accessory items and food packaging (which includes without limit plasticware, foodware, and other such disposable restaurant supplies), licenses and health, (ii) it has notified nutrifile of any requisite consumer-facing instructions, opt-in requirements, charges, and warnings associated with any/all Vendor Products and it will notify nutrifile of any such instructions, opt-in requirements, charges, and warnings which become necessary immediately as they become necessary, (iii) it will communicate common allergens within any of the Vendor’s menu items and/or products displayed on the nutrifile Platform, (iv) it will list only products or menu items for sale, prices, and product descriptions on the nutrifile Platform, it shall not include age-restricted products (which include without limit tobacco or alcohol) in Vendor’s menus or product offerings on the nutrifile Platform or request such service offering of age-restricted products via the nutrifile Platform without entering into a priorly ratified separate agreement with nutrifile which records and memorializes the sale, delivery, and promotion of such products whilst in compliance with any/all laws of applicable jurisdictions in which these products are to be sold, (vi) it will not communicate any information regarding a Deliverer or Finder to any third party (except in such a manner which is necessary so as to comply with law or in accordance with an order from court), (vii) it shall follow the guidelines nutrifile publishes which govern any content Vendor posts on the nutrifile Platform or Vendor Portal, and also (viii) it shall perform its obligations and duties under Section D(2)(iii) and D(2)(iv) of the Agreement.
4. EXCEPT AS SPECIFICALLY SET FORWARD HEREIN, TO THE LIMIT PERMITTED BY THE APPROPRIATE LAW, nutrifile HEREBY EXPLICITLY DISCLAIMS ALL WARRANTIES, STATUTORY, IMPLIED OR EXPRESS, REGARDING THE nutrifile PLATFORM, THE EQUIPMENT, ORDER (PICK-UP AND DELIVERY) API, OR SERVICES, INCLUDING WITHOUT LIMIT ANY WARRANTIES RELATED TO VENDOR TITLE, ABILITY, SATISFACTORY RESULTS OR QUALITY, OR FITNESS AND/OR COMPETENCE FOR A SPECIFIED PURPOSE AND NON-INFRINGEMENT. Vendor acknowledges the operation of and access to the nutrifile Platform might periodically encounter technical difficulties or other difficulties and might not necessarily continue without interruption or with no technical errors or errors of another nature and nutrifile will not be liable to Vendor or any others for such problems, errors, outright discontinuance or interruptions of the Platform nor will nutrifile be liable for any guaranteed results with regards to the nutrilife services or Platform. Each Party acknowledges that neither party maintains the expectation of or has been given any guarantees for future business dealings or that investment or any sort by any party shall be recouped or recovered or that a party as such shall gain any anticipated sum of profits by entering into this Agreement
P. Indemnification.
Each party (referred to as the “Indemnifying Party”) shall hold harmless, indemnify and defend the other party, along with its affiliates, subsidiaries and their respective agents, employees, shareholders, directors, and officers (referred to as the “Indemnified Party”) against and from all and any losses, expenses (which include such reasonable fees for attorney services), damages, and claims (altogether “Losses”) in connection with any claims via third parties arising from or in connection with: (i) all and any bodily injury (which includes death) or damage to real or tangible property to such extent as caused via the personnel of the Indemnifying Party (in the case which Vendor is the Indemnifying Party, this may include without limit, causes related to Vendor Products); (ii) all and any claims by which the Indemnifying Party violated its covenants, warranties or representations set forward in Section K and Section L, and Section O of the Agreement; (iii) the breach of third party intellectual property via the Indemnifying Party’s documentation, menus, trade names, trademarks, logos or any other such intellectual property (referred to altogether as “Materials”); or (iv) in which case where Vendor as such Indemnifying Party, Vendor’s failure to transfer tips as deemed necessary by appropriate law. Furthermore, Vendor shall defend, hold harmless and indemnify nutrifile from all and any Losses in connection with any breach or alleged breach of any appropriate retail food or other such health and safety regulation, code, or rule in related to Vendor Products, except to an extent that such Losses were directly caused by the willful misconduct or gross negligence of nutrifile; nutrifile will also not be liable for the mislabeling of food items which harm Finders via any negligence or mistaking in the expressing food/menu items with the incorrect dietary and nutritional labels (this includes scenarios that affect Finder health, which include but are not limited to allergies, as well as those which cause Finder’s personal distress via their beliefs, which includes without limit mislabelling vegan or hallal products). In each such case, the Indemnified Party will supply such Indemnifying Party: (a) prompt notice relating to such claims so that the Indemnifying Party not be prejudiced via the delay of a notification as such, (b) an option to assume singular control over settlement and defense of any such claim, and (c) reasonable support in relation to such settlement and defense (upon the expense of the Indemnifying Party). The Indemnified Party can take part in the settlement or defense of such claim with its own council of choice and upon its own expense; but, the Indemnifying Party will not join any settlement agreement which transmits any obligation to the Indemnified Party whilst not having the Indemnified Party’s prior, express, written consent. nutrifile assumes no responsibility, and will not have any liability, for any claim of breach or infringement under Section O(4) based on Vendor’s use of and/or access to the nutrifile Platform after notice of an infringement claim as such; any unauthorized modification or change to the nutrifile Platform by Vendor; or Vendor’s combination of the nutrifile Platform with any third party programs, hardware, data, services or other materials that otherwise would not lead to an infringement claim as such.
Q. Limitation of Liability.
EXCEPT IN RELATION TO DAMAGES WHICH ARISE FROM WILFUL MISCONDUCT OR VIOLATIONS OF LAW, UNPAID SUMS OWED TO nutrifile BY VENDOR GREATER THAN THE BELOW LIMIT, AND SUMS PAYABLE TO ANY THIRD PARTIES PURSUANT TO SECTION P (INDEMNIFICATION), TO SUCH EXTENT ALLOWED BY THE APPROPRIATE LAW, (I) NEITHER OF THE PARTIES SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PURSUANT TO THIS AGREEMENT, FOR CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INDIRECT DAMAGES, OR FOR HARM TO GOODWILL, LOST REVENUES, LOST PROFITS, OR SUCH COSTS FOR ATTAINING REPLACEMENT SERVICES, REGARDLESS IF THEY BE BASED ON CONTRACT, TORT, OR ANY ALTERNATIVE OR LEGAL THEORY, AND REGARDLESS OR NOT IF SUCH PARTY WAS ADVISED OF THE POSSIBLE OCCURRENCE OF DAMAGES AS SUCH, AND (II) EVERY PARTY’S GREATEST AGGREGATE LIABILITIES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT WILL NOT BE GREATER THAN THE TOTAL SUM PAYABLE OR PAID VIA ONE PARTY TO THE OTHER WITHIN THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING SUCH INCIDENT WHICH INCITES THE LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO SUCH AN EXTENT PROHIBITED BY THE APPROPRIATE LAW.
R. Insurance.
Throughout the term of this Agreement as well as for one year following after, each party shall keep adequate insurance sums which are no less than those required via law or which is standard practice in the business of such party. If requested, each party will supply the other with up-to-date evidence of coverage. Insurance as such will not be materially reduced or cancelled without prior written notice thirty (30) days in advance. In no event will the limits of an insurance policy - of any kind - be deemed as limiting - in any way - the liability of any party under the agreement.
S. Dispute Resolution.
PLEASE READ THIS SECTION THOROUGHLY. IT REQUIRES THAT YOU ARBITRATE DISPUTES WITH nutrifile AND ALSO LIMITS THE MANNER BY WHICH YOU MAY PURSUE RELIEF. THIS SECTION S OF THE AGREEMENT WILL BE TITLED THE “AGREEMENT TOWARDS ARBITRATION.”
1. Scope of Agreement Towards Arbitration. Any claim, controversy or dispute relating to, arising from, or connected with this contract, which includes such validity, termination or breach thereof, will be resolved in finality via binding arbitration, as opposed to in court, except that (i) your claims can be asserted in a small claims court should they qualify, only as long as such matter remains within such court and progresses only an (non-representative, non-class) basis; and (ii) nutrifile or you can seek injunctive relief via court for matters pertaining to infringement or other such misuse as they are related to intellectual property rights (patents, copyrights, trade secrets, domain names, trade dress, trademarks, and etc.). Nutrifile and Vendor agree that, upon the basis that both exist as business entities which benefit mutually from confidential and streamlined resolution, this Agreement Towards Arbitration will apply to all such disputes relating to or arising from the relationship of the parties the personnel of the parties or such subject matter as found in this Agreement. In that regard, the Agreement Towards Arbitration will be binding on and enforceable by the parties as well as by their employees, managers, directors, officers, owners, and affiliates. The Agreement Towards Arbitration will apply, without limit, to all claims which arose or have been asserted before this Agreement’s Effective Date.CASES MAY, IN THE FUTURE, BE FILED AGAINST nutrifile WHICH ATTEMPT TO PROPOUND CLASS ACTION OR REPRESENTATIVE CLAIMS, BY ACCEPTING THIS AGREEMENT TOWARDS ARBITRATION YOU SELECT TO NO PARTICIPATE IN CASES AS SUCH. SHOULD YOU ACCEPT ARBITRATION WITH nutrifile, YOU ARE ELECTING, IN ADVANCE, TO NOT SEEK MONETARY RECOVERY, OR ANY OTHER RELIEF, OR EVEN TO PARTICIPATE IN ANY REPRESENTATIVE, COLLECTIVE, AND/OR CLASS LAWSUIT AS SUCH. IN AGREEING TO ARBITRATION, YOUR CLAIMS AGAINST nutrifile CAN BE BROUGHT TO AN INDIVIDUAL PROCEEDING FOR ARBITRATION. YOUR SUCCESS ON SUCH CLAIMS CAN BE AWARDED WITH RELIEF WHICH INCLUDES, BUT IS NOT LIMITED, TO MONETARY COMPENSATION.
2. Forum and Arbitration Rules. Canada’s Federal Arbitration Act governs this Agreement Towards Arbitration in every respect. To initiate the arbitration process, you are required to send a letter which requests arbitration and which describes your claim to the registered agent of nutrifile. The International Centre for Dispute Resolution of Canada will administer the arbitration under its rules as well as pursuant to this Agreement’s terms, this shall be done before a single arbitrator agreed upon mutually by the parties, in the case that no agreement is reached in the thirty (30) days following the start of the arbitration proceeding, then the arbitration will be settled by a single arbitrator selected by the ICDR’s process. The arbitration will be held in Toronto, Ontario, or another jurisdiction which Vendor and nutrifile mutually agree upon. The arbitration will advance in line with the arbitration rules of the ICDR which are in effect at the time. Payment of all administration, arbitration and filing fees will be dictated by the rules of the ICDR. Should the ICDR not be available for arbitration, the parties shall choose an alternative forum for arbitration. You can select to have the proceedings for arbitration conducted via written submissions, video conference, telephone, or in person within the country you reside in, or some other location which is mutually agreed upon.
3. Powers of the Arbitrator. The arbitration, and no local, state, or federal agency or court will have exclusive authority in the matter of resolving any dispute pertaining to the formation, enforceability, interpretation, or applicability of this Agreement Towards Arbitration, including without limitation, any claim that any part or all of this Agreement Towards Arbitration is voidable or void. All disputes pertaining to the payment of arbitration-organization or arbitrator fees including the timeliness of payments as well as remedies for nonpayment as such, will be determined singularly via an arbitrator, not by court of any sort. The arbitration shall determine the liabilities and rights, if any, of nutrifile and you. The proceeding of the arbitration shall not be consolidated along with matters of any other sort or joined with parties or proceedings of any other kind. The arbitrator shall have authority to grant dispositive motions of part or all of any dispute or claim. The arbitrator shall have authority to award damages of monetary nature and to grant non-monetary relief or remedy of any kind available to such an individual pursuant to the appropriate law, the forum’s rules for arbitration, and the Agreement (which includes the Agreement Towards Arbitration). The arbitrator shall issue a statement in writing of decision which describes the findings which are essential as well as the conclusions upon which any decision (to award or to not render such award) is founded, which includes the calculation of awarded damages. The arbitrator will follow the appropriate law. The arbitrator maintains the same authority as a judge within a law court would have to grant relief to an individual. The decision of the arbitrator is binding and final on you and nutrifile.
4. Jury Trial Waiver. YOU AND nutrifile WAIVE ANY STATUTORY AND CONSTITUTIONAL RIGHTS TO RECEIVE A JURY OR JUDGE TRIAL AND TO SUE IN COURT. You and nutrifile are electing instead to have disputes and claims resolved via arbitration, except as expressly specified in Section S(1) above. No jury or judge is used in the arbitration process; court review of such arbitration awards or alternatives is limited.
5. Consolidated or Class Actions Waiver; Severability. YOU AND nutrifie AGREE UPON WAIVING ANY RIGHT TO SETTLE CLAIMS ENCOMPASSED WITHIN THIS AGREEMENT TOWARDS ARBITRATION ON A REPRESENTATIVE, COLLECTIVE, OR CLASS BASIS. ALL DISPUTES AND CLAIMS ENCOMPASSED IN THIS AGREEMENT TOWARDS ARBITRATION HAVE TO BE ARBITRATED IN AN INDIVIDUAL MANNER AND NOT ON THE BASIS OF A CLASS, GROUP, ETC. CLAIMS CONNECTED TO MULTIPLE VENDORS CANNOT BE LITIGATED OR ARBITRATED JOINTLY OR BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER USER OR FINDER. Should this waiver of consolidated or class actions be deemed unenforceable or invalid in connection to a particular dispute or claim, neither you nor nutrifile has the right to arbitration of a dispute or claim as such. Alternatively, all such disputes and claims have then to be settled in court as declared via Section T, and every other provision of this Section S (Dispute Resolution) will remain effective. If any provision in Section S is adjudicated to be unenforceable or void in any way - partially and wholly - the unenforceable or void provision will be severed and such adjudicated decision will not affect the remainder which is valid within this Section S. Nothing within this provision will prevent you or nutrifile from taking part in a settlement of claims which is class-wide.
6. Opt Out. nutrifile’s updates to the Terms and Services found here do not create any new opportunity to - in any way - opt out from the Agreement Towards Arbitration if you previously agreed to any version of nutrifile’s Terms of Service and chose then to not opt out from arbitration. nutrifile shall continue to uphold the valid Vendor opt outs who did so opt out - validly - from the Agreement of Arbitration in any prior iteration of the nutrifile Terms of Service. Should you create your first nutrifile account on or at any date after December 20, 2021, you can opt out of this Arbitration Agreement. If you do, neither you nor nutrifile may force each other to arbitrate due to this Agreement. In order to opt out, nutrifile must be notified by you, in writing, of your intention towards opting out; this is to be done by sending a letter by mail to nutrifile, Inc., 10 Brin Drive, Unit 26, Toronto, ON M8X0B3. Attempting to opt out via email shall be ineffective. In order to be effective, such opt-out notice has to be postmarked at maximum 30 days beyond your first via the Platform. In your notice must be included: a CLEAR statement expressing that you wish to opt out from this Agreement Towards Arbitration, the email address which you used in order to create your nutrifile account (should you have one), your nutrifile username, and your address and name. Such letter can opt out only one Vendor at most, and letters which purport the opt out of multiple Vendors shall not be effective to any individual Vendor. No Vendor (or her or his representative or agent) can effectuate any opt out on any other persons behalf. Should you opt out from this Agreement Towards Arbitration, all other parts within this Agreement shall continue to be in effect towards you. Opting out from this Agreement Towards Arbitration carres no effect on to any other agreements pertaining to arbitration which you might have agreed to with us or might agree to with us in the future.
7. Survival. This Agreement Towards Arbitration shall survive any manner of termination of the relationship between you and nutrifile
8. Modification. Despite any provision within this Agreement to the opposite effect, it is agreed that if nutrifile makes any future substantial change to this Agreement Towards Arbitration, it shall not apply to individual claims which you had already given notice of to nutrifile.
T. Waiver of Litigation Class Action.
To such extent allowed by the appropriate law, apart and separate from the Agreement Towards Arbitration contained in Section S, Vendor agrees that any motion to litigate via court any claim or dispute relating to or arising from this Agreement, whether it be because Vendor opted out from the Agreement Towards Arbitration or any any other reason, shall be conducted only upon the basis of an individual, and Vendor agrees to not pursue to have any dispute, claim or controversy heard in the manner of a private attorney-general action, a collective action, a representative action, a class action, or in a proceeding where Vendor proposes to act or acts in such a representative capacity (“Waiver of Litigation Class Action”). Vendor also agrees that no proceeding shall be joined, combined, or consolidated with any other proceeding, lacking the prior consent - in writing - of all the parties to any proceeding as such. Should a court of adequate jurisdiction deem that part or all of this Waiver of Litigation Class Action is voidable, void, unconscionable, or unenforceable, this Agreement’s remainder will remain in full effect and force.
U. Franchisees.
Franchises that operate a branded store concept or restaurant licensed by Vendor can take part in the Program under the conditions and terms of the Agreement on the conditions that such individual franchisee: (1) is complying with the terms of its franchise agreement; (2) joins into an agreement under materially the same form as such Supplemental Agreement which is provided by nutrifile to the Franchisee. Except if the parties agree otherwise - mutually, in writing - all Vendor owned branded store concept(s) and restaurant(s) will be subject to and included to the hereunder terms.
V. Code of Conduct for Partners.
Vendor agrees to be in compliance with the Code of Conduct for Partners <NEED LINK> which may be, from time to time, updated by nutrifile.
W. Communications from nutrifile.
Vendor agrees to receive and accept communications from nutrifile and its affiliated companies, including via calls, text message, email, and push notifications to such cellular/mobile telephone number Vendor provides to nutrifile. Vendor acknowledges that Vendor can receive communications generated via automatic telephone systems and/or which deliver prerecorded messages that are sent on behalf or by nutrifile and/or its affiliated companies. Vendor can opt out of these communications in Vendor’s Account Settings.
X. Attorneys’ Fees.
Upon any legal action for the purpose of enforcing this Agreement’s terms, the winning party will be entitled to recover such attorney’s costs and fees it has incurred - as are deemed reasonable - from the other party.
Y. General Provisions.
As put forth between Vendor and nutrifile via the Sign-Up Form, the Sign-Up Form and these Terms make up a consolidated Agreement amongst the parties, which supplants all prior communications and agreements - oral or written - of the parties with regards to such subject matter as is hereof. The obligations and rights put forth by these Terms, that do by their express terms or should by their nature, extend or survive beyond the expiration or termination of these Terms will so extend and survive. This agreement is interpreted in accordance to and governed by the laws of Ontario, Canada, with no regard to the principles of conflicts of laws thereof. Vendor agrees that, other than as put forth in Section S (“Dispute Resolution”) that the parties consent hereby to exclusive jurisdiction within the courts of Vendor’s location. Vendor cannot assign - in whole or any part of - this Agreement without nutrifile’s prior written consent. Nutrifile may assign this Agreement freely. This Agreement inures towards benefit(s) of, and is binding upon, each party’s assigns and permitted successors, and franchisees, franchisors, affiliates, agents, representatives, and employees, but will not confer any remedies or rights onto a third party of any kind. All consents, requests, notices other communications pursuant to the agreement of the Parties has to be in writing, as well as delivered via overnight courier to addresses put forth on the Sign-Up Form (or any addresses updated and hereunder property noticed). Nutrifile’s address is 10 Brin Drive, Unit 26, Toronto, ON M8X 0B3. Should any provision within this Agreement be held invalid, unenforceable or illegal for any reason, that unenforceability, illegality, or invalidity shall not affect or carry over to any other provisions encompassed in the Agreement, and the Agreement shall be construed in a manner as if such unenforceable, illegal, or invalid provision was never here contained.