Welcome to the SWIPEBY network. This Agreement sets out the terms under which you (“Restaurant”) may use the social media platform and related services offered and maintained by Neighbor, Inc. (“SWIPEBY”) to offer carry-out menu items and receive orders and payment for them.
Restaurant offers retail dining services, including the preparation of meals and related food items that may be purchased by the public on a carry-out basis for off-site consumption.
SWIPEBY provides technology by which members of the public may use internet-connected devices to browse menu items uploaded by Restaurant and then place and pay for orders that will be transmitted to Restaurant for fulfillment and curbside service.
1. Restaurant Menus. SWIPEBY will provide Restaurant with access to an internet site where Restaurant, using its own computer and internet connection, may upload (a) its name, location, description, average meal preparation time, and other desired information, and (b) images, descriptions, and pricing for each menu item Restaurant wishes to offer. Alternatively, upon request SWIPEBY will create images of menu items as prepared by Restaurant. If Restaurant has multiple locations, it must set up a separate log-in, profile and menu for each participating location. SWIPEBY will use Restaurant’s information to populate the SWIPEBY app, which will be available for download by the public to smartphones, tablets, and other compatible devices. Restaurant will also have the ongoing capability to change or update menu items and other information as desired. Restaurant is solely responsible for the accuracy of all data and images uploaded by it, and for providing them in a format compatible with and suitable for display by SWIPEBY’s technology.
2. Ordering. SWIPEBY will provide Restaurant with a android app, the sole functions of which will be to receive orders for that Restaurant location placed by users of the SWIPEBY app, and to notify the wait staff that a customer is waiting for an order to be brought outside to the waiting customer’s car. Restaurant will be responsible for providing and maintaining an active internet connection for the device the app is running on at each location. Orders will be considered placed when received by a location’s app. Should any Restaurant location wish to temporarily stop receiving orders, it may do so by powering down the device/app or taking it offline.
3. Outdoor Sign. SWIPEBY might provide Restaurant with an outdoor sign suitable for placement curbside in front of the Restaurant location, the sole function of which will be to reserve space for SWIPEBY curbside service. Restaurant will be solely responsible for whether and where to place the sign, and for ensuring that the sign is in compliance with all local laws and regulations, as well as with the requirements of any landlord or property owner. SWIPEBY provides the sign as-is, and without any warranty as to its suitability or safety. Restaurant chooses to place and use the sign in its sole judgment and at its sole risk. Any loss of, damage to, or damage or injury caused by the sign will be the sole responsibility of Restaurant, and Restaurant indemnifies SWIPEBY with respect thereto as provided in Section 16.
4. Set-up Fee. Restaurant will pay SWIPEBY a one-time set-up fee of $449 at the time this Agreement is accepted, fee might be waived in special situations.
5. Payment Processing. SWIPEBY will be responsible for all payment processing in connection with orders. Payment will be collected from each user at the time of order placement, in the amounts reflected by the purchase prices uploaded by Restaurant plus sales taxes and tips, if any. Payment proceeds will be disbursed as provided in Section 8.
6. Sales Tax. Restaurant will be responsible for maintaining all appropriate sales and use tax licenses for its operations. Restaurant will advise SWIPEBY of the total tax rate applicable to Restaurant’s sales, and SWIPEBY will cause taxes to be collected at the designated rate and disbursed to Restaurant as provided in Section 8. Restaurant will be solely responsible for remittance of taxes to the appropriate taxing authority, for timely filing of reports in connection with such remittances, and for all related compliance matters. Restaurant will provide SWIPEBY with prompt notice of any changes in the applicable tax rate sufficiently in advance to allow implementation. In some states SWIPEBY is required by law to remit taxes and will do so.
7. Fulfillment. Restaurant will be solely responsible for fulfillment of orders, including timely preparation of the items ordered and proper packaging for carry-out pick up or curbside service by the customer. Restaurant will maintain ordered items on hand for pick-up or curbside service until three (3) hours after order placement or Restaurant’s posted closing time, whichever is earlier. Any orders not picked up by such time may be discarded thereafter. Restaurant will be solely responsible for dealing with all customer complaints and dissatisfaction of any kind, including but not limited to claimed ordering errors, food quality issues, and timeliness of preparation.
8. Disbursements. Restaurant will maintain an appropriate account at a financial institution of its choice to receive disbursement of funds under this Agreement, and will provide SWIPEBY and its designated payment processing service with all necessary information to enable automated electronic transfer of funds into that account. The total transactional amount processed for each order shall be disbursed as follows:
a. 4.5% (four point five) + 45 (forty five) cents of the total transaction amount will be retained by SWIPEBY as a merchant fee, which will include all fees of SWIPEBY’s designated payment processing service; and
b. the remainder will be disbursed to Restaurant’s account; and
c. if after 2 months gross volume sales do not exceed $1k per month we will add a $39 per month fee that will be deducted from payouts.
Funds will be disbursed on a transaction-by-transaction basis, according to the procedures and policies of SWIPEBY’s designated payment processing service. While SWIPEBY’s service fee is calculated as a percentage of the total transactional amount for convenience, Restaurant acknowledges and agrees that the disbursement to Restaurant in fact includes the entire amount of sales tax and tips collected, and Restaurant will be solely responsible for appropriate disposition of such amounts, including remittance of sales taxes to the appropriate taxing authority as provided in Section 6.
9. Promotional Discounts. When appropriate in its sole judgment, SWIPEBY may publish coupons or other promotional offers to the public that provide discounts on food purchased through the SWIPEBY app. If a customer uses such a discount on a purchase from Restaurant, SWIPEBY will calculate the amount to be disbursed to Restaurant based on the total transactional amount before application of the discount, so that the discount will be deducted from SWIPEBY’s service fee only. If the discount on a particular transaction is larger than the SWIPEBY service fee, then SWIPEBY will remit the entire transactional amount to Restaurant. The amount by which the discount exceeds SWIPEBY’s service fee will be carried as a credit on Restaurant’s account, and will be remitted to Restaurant out of future SWIPEBY service fees earned. If, at the time this Agreement expires or is terminated for any reason, there is a net credit balance on Restaurant’s account, SWIPEBY will remit the net balance to Restaurant within thirty (30) days.
10. Set-offs. In the event of any chargebacks with respect to amounts previously disbursed to Restaurant, or any other failure to collect or obligation to refund all or any part of such funds due to erroneous or fraudulent transactions or for other reasons, SWIPEBY will be entitled to set-off all such amounts, including any charges or fees incurred, against Restaurant’s account and to withhold the same from any future disbursements to Restaurant. Should disbursements be insufficient to fully reimburse any such amounts, Restaurant will be responsible for refunding the same to SWIPEBY promptly upon request.
11. Reports. SWIPEBY will provide Restaurant with an electronic report on at least a monthly basis that sets out total collections, set-offs and disbursements since the previous reporting period.
12. Intellectual Property.
a. Restaurant retains ownership of all images, names, logos, designs, and other information or files uploaded by Restaurant to SWIPEBY’s servers (“Restaurant IP”). Restaurant grants to SWIPEBY a license to use the Restaurant IP for all appropriate purposes in connection with performance under this Agreement, including display on or through the SWIPEBY app, and marketing, advertising, and promotion of SWIPEBY, Restaurant, and/or the SWIPEBY app. This license will continue for the duration of this Agreement and will terminate whenever this Agreement ends for any reason, except that SWIPEBY will retain the right to continue to use and display to users of the SWIPEBY app such portions of the Restaurant IP as are needed in connection with each user’s ordering history. Restaurant represents and warrants that it owns or otherwise has the right to use the Restaurant IP, and that SWIPEBY’s use of the Restaurant IP as contemplated by this Agreement will not infringe any patent, copyright, trademark, trade secret, or other legal right of any third party.
b. Except for the Restaurant IP, SWIPEBY retains ownership of all other images, names, logos, designs, and other information or files used or displayed by the SWIPEBY app, including but not limited to the SWIPEBY word mark and logo, the graphical user interface, and any images of Restaurant menu items created by SWIPEBY (“SWIPEBY IP”). Restaurant will not copy, download, distribute, or use any of the SWIPEBY IP for any purpose without the prior written approval of SWIPEBY.
13. Compliance with Laws. In its performance under this Agreement, Restaurant will comply with all applicable federal, state, and local laws and regulations, including but not limited to local health codes and ordinances, wage and hour laws, sales and use tax laws, and consumer protection and false advertising laws.
14. Warranty By SWIPEBY. SWIPEBY represents and warrants that it will make commercially reasonable efforts, according to prevailing industry standards, to cause the SWIPEBY app and related technology to perform the functions described in this Agreement. EXCEPT AS SO WARRANTED, SWIPEBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In particular, SWIPEBY makes no promise concerning the amount of exposure to potential customers that Restaurant will receive under this Agreement, the amount of business, if any, that may be generated for Restaurant under this Agreement, or the profitability of any such business.
15. Limitation of Liability. Except with respect to indemnity obligations pursuant to Section 16, below, neither party shall be liable to the other for any incidental, special, indirect, punitive or consequential damages (including lost profits or loss of business) arising out of or relating to this agreement or the subject matter hereof, even if such party has previously been advised of the possibility of such damages.
a. Restaurant hereby indemnifies and agrees to defend and hold harmless SWIPEBY, its officers, owners, members, employees, directors, agents, and all those taking through or under it, from and against any and all judgments, liabilities, damages, costs and expenses, including reasonable attorney fees, incurred with respect to any claim asserted by any third party that arises in whole or in part out of (a) any actual or alleged conduct by Restaurant or its employees, owners or agents, or (b) any loss of, damage to, or damage or injury caused by the sign referred to in Section 3.
b. Except for claims described in Section 16.a. above, SWIPEBY hereby indemnifies and agrees to defend and hold harmless Restaurant, its officers, owners, members, employees, directors, agents, and all those taking through or under it, from and against any and all judgments, liabilities, damages, costs and expenses, including reasonable attorney fees, incurred with respect to any claim asserted by any third party that arises out of any actual or alleged conduct by SWIPEBY or its employees, owners or agents.
c. If any claim is asserted against either party for which it is indemnified under this Agreement, the indemnified Party shall give prompt written notice thereof to the indemnifying party and shall reasonably cooperate in the defense and any settlement thereof, and the indemnifying party shall thereafter be entitled and obliged to employ counsel to represent the indemnified party, to control the defense of and any settlement or compromise of such claim or suit, and to keep the indemnified party fully informed with respect thereto.
17. Relationship. The relationship between SWIPEBY and Restaurant is solely that of independent contractors. This Agreement shall not create an agency, partnership, joint venture or employer/employee relationship, and nothing in this Agreement shall authorize either party to act for, represent or bind the other. To the extent that employees of either party perform work related to this Agreement it is understood that no employees or agents of one party shall be deemed to be employees or agents of the other, and each party shall have the sole and exclusive control over its own agents and employees.
18. Term and Termination. This Agreement shall take effect as of the date that it is accepted and agreed to by Restaurant, shall have an initial term of one (1) year, and shall automatically renew on the same terms and conditions for successive one-year terms unless either party gives written notice to the other of intent not to renew prior to the expiration of the current term. Either party may terminate this Agreement at any time effective on written notice to the other party. Upon the expiration or termination of this Agreement for any reason, the parties shall continue performance with respect to any transactions that are in process. The provisions of this Agreement shall continue in full force and effect with respect to such transactions, as well as any other provisions that by their nature are intended to have effect after termination.
19. Other Provisions.
a. This Agreement is governed by the substantive laws of the State of North Carolina, applied without regard to its choice of law rules. The federal and state courts having jurisdiction in Forsyth County, North Carolina, shall have exclusive venue and jurisdiction over any actions or suits arising out of or related to this Agreement. The parties shall not raise, and hereby waive, any defenses based upon venue, inconvenience of forum, or lack of personal jurisdiction in any action or suit brought in accordance with the foregoing.
b. This Agreement may not be modified except in a writing signed by the parties.
c. Any waiver or failure to require strict performance of any provision of this Agreement by any party shall not waive, affect, or diminish any right of that party thereafter to demand strict compliance with the same.
d. Neither this Agreement nor any rights or obligations hereunder may be assigned or transferred by any party without the prior written consent of the other parties hereto, except that any corporate party may transfer all of its rights and obligations under this Agreement as part of a corporate reorganization, merger, sale, or transfer of substantially all of its assets and operations, so long as advance written notice of such event is provided to the other party to this Agreement.
e. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, on the same subject. Neither party is relying on any promises or representations except those set out in this Agreement.