Terms of Service for Vendors
This Vendor Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Vendor"), and QCutter, LLC. and its affiliates (collectively, "QCutter"), regarding the Vendor's use of QCutter' website, currently located at www.qcutnow.com (including the webpages contained or hyperlinked therein and owned or controlled by QCutter, the "Website"), and the Vendor's inclusion in applicable services provided by QCutter via the Website (as determined by QCutter from time to time and in its sole and absolute discretion) and such other media or media channels, devices, software, or technologies as QCutter may choose from time to time (the "QCutter Services").
The Vendor agrees to provide, and thereafter maintain and promptly update for so long as the Vendor this Agreement is effective, true, accurate, current and complete information regarding the Vendor as is requested during the Vendor's registration process via the Website (the "Registration Process").
QCutter may perform a variety of marketing activities to promote the Vendor and the Vendor's menu item(s), many of which are described on the Website; provided, however, that all such marketing activities will be determined in QCutterHour's sole and absolute discretion and the Website may be changed, without notice and from time to time, to reflect any such changes.
The Vendor will provide QCutter with the Vendor's current menu item(s), and any updates, changes, or modifications thereto (the "Vendor Menu Item(s)"), in such format as is requested by QCutter (collectively, the "Marketing Materials") for QCutter' inclusion in the Website and the QCutter Services or for any marketing or advertising activities undertaken by QCutter, in its sole and absolute discretion (the "QCutter Marketing Activities"). The Vendor hereby grants to QCutter a non-exclusive, transferable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for any purpose, including marketing, commercial, advertising, promotional activities or otherwise, and with a right to sublicense, in connection with the Website, the QCutter Services, or the QCutter Marketing Activities; and, in connection with QCutter' exercise of the license rights granted by the Vendor, QCutter may prepare derivative works of, or incorporate into other works, all or any portion of the Marketing Materials. The license rights granted hereby will apply to any form, media, or technology now known or hereafter developed. QCutter does not assert any ownership over the Marketing Materials; rather, as between QCutter and the Vendor, and subject to the rights granted to QCutter herein, the Vendor shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
The Vendor acknowledges and agrees that the end-user customers of the QCutter Services (the "Customers") may place orders with the Vendor, through the QCutter Website or other media or media channels, devices, software, or technologies as may be included within the QCutter Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Vendor Menu Item(s) (the "Customer Orders"). Upon placement of such a Customer Order, QCutter will send written confirmation thereof to the Vendor via the email address currently in the Vendor's Website account information or via such other delivery method as QCutter and the Vendor may agree upon (the "Order Confirmation"), and which Order Confirmation contains a confirmation code for the Customer Order.
All orders for alcoholic beverages placed through the App or the Service are accepted, reviewed, and ultimately fulfilled by the selected licensed retailer(s). All alcoholic beverage sales and/or alcohol transportation and delivery services through the App or the Services are solely transacted between the customer and the selected licensed retailer(s). QCutter does not provide or sell alcoholic beverages and is not a licensed alcohol retailer, and QCutter is not responsible for the sale, service, transportation or delivery of alcoholic beverages.
At the time of purchase, the customer credit card will be charged by a third party credit card processing provider who will transfer and deliver funds to the licensed retailer, and QCutter receives no portion of the purchase price for the alcoholic beverages sold through the App
QCutter Services currently allow a Customer to pay for a Customer Order via credit card or PayPal®. If the Customer Order is paid via credit card or PayPal, the full purchase price for such Customer Order, including sales and any other applicable taxes, shall be processed and received by QCutter and, at least once per calendar month, QCutter will deliver to the Vendor the aggregate purchase price of all Customer Orders applicable to the Vendor that were so processed by QCutter, less QCutter' Convenience Fee and the applicable credit card merchant payment processing fee, via direct bank deposit or check (the “Processing Fee”). The applicable Convenience Fee and Processing Fee are set below.
The Convenience Fee shall mean $1.00 per menu item added to the price Vendor sets for each menu item.
The following table sets forth the applicable Processing Fee for all permitted credit card merchants:
PAYPAL 3% + $0.3
PARTNER CREDIT 3% + $0.3
MASTER CARD 3% + $0.1
VISA 3% + $0.1
AMERICAN EXPRESS 3.5%
DISCOVER 3% + $0.1
Notwithstanding anything to the contrary herein, the Vendor is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Vendor's use of the Website and the QCutter Services. QCutter may charge and collect sales tax from Customers as an agent on behalf of the Vendor in accordance with instructions provided by the Vendor or applicable law; and, in which case, QCutter will collect such sales tax solely as an agent on behalf of the Vendor and shall pay such amount collected to the Vendor (or as may be otherwise required by applicable law). The Vendor shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. Sales tax shall include any sales, use, privilege, gross receipts, Vendor, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Vendor.
Cash Coupons are a great way for Vendor to increase sales and promote its Vendor on QCutter. Cash Coupons give Customers with valid QCutter accounts the ability to receive discount credits (not cash) on future purchases from participating Cash Coupon Vendors. The Cash Coupons accrue in the Customer’s account until (i) they expire thirty (30) days from the order date, (ii) they are applied against a future order with a participating Vendor or (iii) the Customer’s account is closed.
Vendor selects the discount percent amount to be applied to the Customers’ Cash Coupons in the Vendor’s administration account page, which may be modified at any time. When a Customer places a Customer Order, the discount percent is applied against the amount owed by Customer for the Customer Order (the “Discount Amount”) and added as a credit to the Customer’s Cash Coupon account. QCutter automatically deducts the Discount Amount from the amount otherwise payable to the Vendor for that Customer Order. When a Customer places another Customer Order with Vendor within the next thirty (30) days, Vendor will receive its normal share of the revenue, unless the Vendor remains enrolled in the Cash Coupon program and another Discount Amount is applied.
The individual and monthly total Cash Coupon reports are available on the Vendor account page. Vendor may terminate its participation in the Cash Coupon program at any time without penalty or cost on the Vendor’s account page. The Cash Coupons have no cash value and are not transferable, unless otherwise required by law.
VENDOR REPRESENTATIONS, WARRANTS, AND COVENANTS
The Vendor hereby represents, warrants, and covenants that:
- the prices charged to Customers through the QCutter Services will not be higher than those charged to any customers that place orders directly with the Vendor;
- it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Vendor's operation of its business;
- it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by QCutter' then-current policies;
- it bears all risks to persons and property arising from its (or its employees' or service providers') contact therewith, and waives, and agrees to indemnify QCutter for, any and all claims relating thereto against QCutter;
- the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Vendor's Marketing Materials pursuant to the license rights granted to QCutter by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party; and
- The Vendor's Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
Excluding the Marketing Materials, all of the content on the Website and included in the QCutter Services (including without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics, the "QCutter Content"), including the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to QCutter, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All QCutter graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of QCutter in the U.S. and/or other countries. QCutter' trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of QCutter. The Vendor agrees not to circumvent, disable or otherwise interfere with any security related features of the Website or the QCutter Services, or any other features that seeks to either prevent or restrict the use or copying of any QCutter Content or enforce limitations on use of the Website, the QCutter Services, or the QCutter Content therein.
TERM AND TERMINATION
This Agreement is effective upon the Vendor's initial Registration Process and will remain in full force and effect for so long as the Vendor is included on the Website as part of the QCutter Services. Either QCutter and the Vendor may terminate this Agreement any time, for any reason, with or without notice by providing written notice to the other. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. QCutter will, as soon as practicable following such termination (or notice thereof, if terminated by the Vendor), remove the Vendor from inclusion in the QCutter Services and the Website.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
If there is a dispute between the Vendor and a Customer, the Vendor understands and agrees that QCutter is under no obligation with respect thereto, and the Vendor, to the fullest extent permitted by law, hereby releases QCutter and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the QCutter Services.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement, the Website, or the QCutter Services shall be governed and construed by the law of the State of California, excluding such state's conflicts of law rules. Any legal action of whatever nature by or against QCutter arising out of or related in any respect to this Agreement, the Website, or the QCutter Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over San Francisco County, California, and the Vendor hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with QCutter; subject, however, to the right of QCutter, at QCutter' sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. The Vendor hereby consents to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by the Vendor related in any way to this Agreement, the Website, or the QCutter Services be instituted more than two (2) years after the cause of action first arose.
TO THE FULLEST EXTENT PERMITTED BY LAW, QCUTTER AND ITS AFFILITES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE AND THE QCUTTER SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. QCUTTER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S OR THE QCUTTER SERVICES' CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE VENDOR'S ACCESS TO AND USE OF THE WEBSITE AND THE QCUTTER SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF QCUTTER' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR OTHERWISE WITH RESPECT TO THE QCUTTER SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE QCUTTER SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE QCUTTER SERVICES.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL QCUTTER OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO VENDOR OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE WEBSITE OR THE QCUTTER SERVICES, EVEN IF QCUTTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, QCUTTER' LIABILITY TO VENDOR FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE VENDOR TO QCUTTER FOR THE QCUTTER SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE VENDOR, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE VENDOR, AND THE VENDOR MAY HAVE ADDITIONAL RIGHTS.
IF THE VENDOR IS A CALIFORNIA RESIDENT, THE VENDOR WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Vendor hereby agrees to defend, indemnify and hold QCutter and its affiliates, and each of their respective members, managers, employees, services providers, and agents (collectively, the "QCutter Indemnitees") harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any party due to or arising out of the Vendor's Marketing Materials, the Website, the QCutter Services, or any breach by the Vendor of this Agreement. Notwithstanding the foregoing, QCutter reserves the right, at the Vendor's expense, to assume the exclusive defense and control of any matter for which the Vendor may be required to indemnify an QCutter Indemnitee, and the Vendor agree to cooperate, at the Vendor's expense, with QCutter' defense of such claims. QCutter will use reasonable efforts to notify the Vendor of any such claim, action, or proceeding which may be subject to this indemnification upon QCutter becoming thereof.
The Vendor shall at all times maintain comprehensive public liability insurance (which may be under a blanket policy), issued by a licensed insurer rated A+10 or better in "Best's Insurance Guide", insuring the Vendor against any liability arising out the lease, use, occupancy of maintenance of its mobile food facility and/or premises and all areas appurtenant thereto and the operation of the business, which will have a limit of not less than $2,000,000 combined single limit for injury to, or death of, one or more persons per occurrence, and for damage to tangible property per occurrence.
Except as explicitly stated otherwise, any notices given to QCutter shall be given by email to admin@QCutter.com. Any notices given to the Vendor shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Vendor from time to time); provided, however, that QCutter may also give notices via regular mail.
Additionally, the Vendor may contact QCutter at the address, fax, and telephone number provided below (as may be updated by QCutter from time to time) with respect to any complaint regarding the QCutter Services or to receive further information regarding the QCutter Services.
2 Marina Blvd, Fort Mason Center, Building C, Room C370, San Francisco, CA 94123
This Agreement constitutes the entire agreement between the Vendor and QCutter regarding the use of the QCutter Services; provided, further, that the Vendor's use of and access to the Website and the QCutter Services shall also be subject to the Term of Use (currently available here WEBSITE LINK). The failure of QCutter to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Vendor's account with QCutter (including the Website and the QCutter Services) may not be assigned by the Vendor without QCutter' express written consent. QCutter may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
QCutter may modify this Agreement from time to time, and any such changes will (i) be reflected on the Website, (ii) be effective 30 calendar days after being so posted on the Website, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Vendor agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Website to keeping the Vendor's contact information (as indicated in the Vendor's account details via the Website) current.
Notwithstanding anything to the contrary herein, QCutter reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Website and the QCutter Services (or any part thereof) with or without notice. The Vendor agrees that QCutter shall have no liability to the Vendor or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the QCutter Services.