Last updated February 10, 2022
Captain has developed proprietary food ordering software that is made available to Restaurant or use on its Website (“Software”) and is the copyrighted work of Captain. Your use of the software is governed by the terms of this agreement (“License Agreement”). You may not install, reinstall, remove or modify any software that is accompanied by or includes this license agreement. Captain hereby grants to Restaurant a personal, nontransferable, non-exclusive license to use the software for online ordering powered by Captain and for no other purpose. Please note that all software languages, including without limitation HTML, Java, Python, Ruby on Rails, CSS, Ajax, C++ and Active X controls (the “Code”), is owned by Captain. Any reproduction or redistribution of the software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the software and any accompanying documentation and/or technical information are subject to applicable export control laws and regulations of the U.S.A. You agree not to export or re-export the software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions.
The Restaurant acknowledges and agrees that the end-user customers of the Captain Software Services (the “Customers”) may place orders with the Restaurant through the Restaurant Website or other media or media channels, devices, software, or technologies as may be included within the Captain Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant Menu (the “Customer Orders”). Upon placement of such a Customer Order, Captain will send confirmation to the Restaurant via tablet (or other hardware device), fax number, email address, or SMS or via POS when applicable, and the Restaurant should acknowledge the Customer Order to then fulfill to Customer on a timely basis accordingly.
Food Ordering Hardware
As part of the Total Online Food Ordering Package, Captain may provide Restaurant with a negotiated leased or purchased receipt printer, stand and/or computer tablet preloaded with Captain’s Food Ordering App. Such hardware shall be used by Restaurant solely for the purpose of submitting and confirming orders and payments for food and beverages, and delivery services, if applicable, in connection therewith. Restaurant shall use the hardware in conformance with any instructions for use provided by Captain.
Restaurant Menu and Materials
The Restaurant agrees to provide, and thereafter maintain and promptly update for so long as the Restaurant this Agreement is effective, true, accurate, current and complete information regarding the Restaurant as is requested during the Restaurant’s registration process (the “Registration Process”).
As part of the total Captain Restaurant Services Marketing package, if Restaurant participates in this program, Captain agrees to perform specific local and Internet marketing activities to promote the Restaurant and the Restaurant’s menu; provided, however, that such marketing activities will be determined in Captain’s sole and absolute discretion and the marketing activities may be changed, without notice and from time to time.
The Restaurant will provide Captain with the Restaurant’s current menu and related information requested by Captain within forty-eight (48) hours of execution of this Agreement, and any updates, changes, or modifications thereto (the “Restaurant Menu”), in such format as is requested by Captain (collectively, the “Set-up Intake and On-boarding Materials”) for Captain’s use for integrating the Captain Software in the Restaurant’s Website, the Captain Restaurant Network, Captain marketing services or for any marketing or advertising activities undertaken by Captain, in its sole and absolute discretion (the “Captain Marketing Activities”). The Restaurant hereby grants to Captain 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 Captain Marketing Activities or the Captain Restaurant Services; and, in connection with Captain’s exercise of the license rights granted by the Restaurant, Captain 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. Captain does not assert any ownership over the Marketing Materials; rather, as between Captain and the Restaurant, and subject to the rights granted to Captain herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
Captain enables a Customer to pay for a Customer Order via credit cards. If the Customer Order is paid via credit card, and Captain provides the processing services, the full purchase price for such Customer Order, including all applicable taxes, shall be processed and received by Captain. Captain will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by Captain, less Captain’s negotiated sales commission percentage (the “Commission Percentage”) and the applicable credit card merchant payment processing fee, via direct nightly or weekly bank deposit. The restaurant will provide their Tax ID that will be used to setup the Captain Marketplace account for nightly direct deposit. User card information will be stored in a secured vault.
Notwithstanding anything to the contrary herein, the Restaurant 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 Restaurant’s use of the Website and the Captain Services. Captain may charge and collect sales tax from Customers as an agent on behalf of the Restaurant in accordance with instructions provided by the Restaurant or applicable law; and, in which case, Captain will collect such sales tax solely as an agent on behalf of the Restaurant and shall pay such amount collected to the Restaurant (or as may be otherwise required by applicable law). The Restaurant 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, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Restaurant. Restaurant Representations, Warrants, and Covenants
The Restaurant hereby represents, warrants, and covenants that: (i) the menu prices charged to Customers through the Captain Restaurant Services will not be higher than those charged to any customers that place orders directly with the Restaurant; (ii) 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 Restaurant’s operation of its business; (iii) it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Captain’s policies; (iv) 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 Captain, its employees, contractors, shareholders and affiliates, for any and all claims relating thereto against Captain; (v) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant’s Marketing Materials pursuant to the license rights granted to Captain 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 (vi) The Restaurant’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 Restaurant’s Website or the Captain restaurant network website (the “Websites”) and included in the Captain Services (including without limitation, all source code, databases, functionality, software, website designs, equipment, audio, video, text, photographs and graphics, the “Captain Content and Assets”), including the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Captain, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All Captain graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Captain in the U.S. and/or other countries. Captain’ 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 Captain. The Restaurant agrees not to circumvent, disable or otherwise interfere with any security related features of the Websites or the Captain Restaurant Services, or any other features that seeks to either prevent or restrict the use or copying of any Captain Content or enforce limitations on use of the Websites, the Captain Services, or the Captain Content therein.
Term and Termination
This Agreement is effective upon the Restaurant’s initial Registration Process and will remain in full force and effect for so long as the Restaurant is included on the Captain Website and as long as the Restaurant utilizes Captain’s food ordering software and purchased or loaned equipment, as part of the Captain Services. The Restaurant may terminate this Agreement any time, for any reason, with 30-days notice after the initial twelve-month (12) month term, by providing written notice by the Restaurant to Captain, as Captain is investing considerable time and capital to provide Restaurant with its Restaurant Services. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. Captain will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant), remove the Restaurant from inclusion in the Captain Restaurant Services, remove the embedded software and the Websites.
Unless paid for in advance, the monthly billing fee will automatically begin 30 days from the time of sign up unless "Go Live" is delayed by Captain.
Early termination may trigger an early termination fee of $129 (dependent on negotiated monthly service fee) or higher per month for the remaining term. For example, if the Restaurant terminates their 12-month Agreement after six months, the Restaurant may be subject to an early termination fee of $129 x 6 months total.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. The Restaurant will return “loaned” equipment (when applicable). 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 Restaurant and a Customer, including chargebacks, the Restaurant understands and agrees that Captain is under no obligation with respect thereto, and the Restaurant, to the fullest extent permitted by law, hereby releases Captain 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 Captain Restaurant 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 Captain Services shall be governed and construed by the law of the State of Pennsylvania, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Captain arising out of or related in any respect to this Agreement, the Website, or the Captain Restaurant Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over Philadelphia County, Pennsylvania, and the Restaurant hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with Captain; subject, however, to the right of Captain, at Captain’ 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 Restaurant 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 Restaurant related in any way to this Agreement, the Websites, or the Captain Restaurant Services be instituted more than two (2) years after the cause of action first arose.
To the fullest extent permitted by law, Captain and its affiliates, 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 Captain services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement. Captain makes no warranties or representations about the accuracy or completeness of the website’s or the Captain 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 restaurant’s access to and use of the website and the Captain services, (c) any unauthorized access to or use of Captain’ 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 Captain services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the Captain 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 Captain services.
Limitations of Liability
In no event shall Captain or its affiliates or each of their respective directors, officers, employees, shareholders, contractors, service providers, affiliates, or agents be liable to restaurant or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from the website or the Captain services, even if Captain has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, and to the fullest extent permitted by law, Captain’ liability to restaurant 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 restaurant to Captain for the Captain 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 restaurant, some or all of the above disclaimers or limitations may not apply to the restaurant, and the restaurant may have additional rights.
If the restaurant is a California resident, the restaurant 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 Restaurant hereby agrees to defend, indemnify and hold Captain and its affiliates, and each of their respective directors, officers, employees, contractors, shareholder, services providers, and agents (collectively, the “Captain 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 Restaurant’s Marketing Materials, the Websites, the Captain Restaurant Services, or any breach by the Restaurant of this Agreement. Notwithstanding the foregoing, Captain reserves the right, at the Restaurant’s expense, to assume the exclusive defense and control of any matter for which the Restaurant may be required to indemnify an Captain Indemnitee, and the Restaurant agree to cooperate, at the Restaurant’s expense, with Captain’ defense of such claims. Captain will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding, which may be subject to this indemnification upon Captain becoming thereof.
Captain provides training, performs background checks and carries insurance on its contract drivers. In connection with this, Captain will indemnify and hold the restaurant harmless, for damages resulting from any Captain contract drivers’ negligence in performing a delivery function on behalf of the Restaurant.
Except as explicitly stated otherwise, any notices given to Captain shall be given by email to email@example.com. Any notices given to the Restaurant shall be to the email address provided during the Registration Process (or as such information may be updated via the Website by Restaurant from time to time); provided, however, that Captain may also give notices via regular mail.
Additionally, the Restaurant may contact Captain at the address, email and telephone number provided below (as may be updated by Captain from time to time) with respect to any complaint regarding the Captain Services or to receive further information regarding the Captain Services.
1510 Central Avenue
Wilmette IL 60091
Attn: Customer Support
This Agreement constitutes the entire agreement between the Restaurant and Captain regarding the use of the Captain Services; provided, further, that the Restaurant’s use of and access to the Websites and the Captain Restaurant Services shall also be subject to the Term of Use. The failure of Captain 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 Restaurant’s account with Captain (including the Websites and the Captain Restaurant Services) may not be assigned by the Restaurant without Captain’s express written consent. Captain 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.
Captain may modify this Agreement from time to time, and any such changes will (i) be reflected on the Websites, (ii) be effective 30 calendar days after being so posted on the Websites, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Restaurant agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Websites to keeping the Restaurant’s contact information (as indicated in the Restaurant’s account details via the Websites) current.
Notwithstanding anything to the contrary herein, Captain reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Websites and the Captain Restaurant Services (or any part thereof) with or without notice. The Restaurant agrees that Captain shall have no liability to the Restaurant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website or the Captain Restaurant Services.