Muncho Restaurant Terms of Service
1. Muncho Restaurant Terms of Service
Last modified: April 2th, 2021
2. Welcome to Muncho!
These Muncho Restaurant Terms of Service ("Terms") are incorporated into and made part of the Restaurant Order Form and Agreement (the "Order Form").
These Terms and the Order Form govern your use and access to our websites, applications, products, and services ("Services"). The Services are provided by Xiaocun Inc. ("Muncho"). The services are provided by Xiaocun Inc. ("Muncho") and by using the Services, you are also consenting to be bound by the terms and conditions of our business partners. Those terms and conditions can be found at the Doordash for Business Online Terms and the Doordash Direct Terms. As between you and Muncho, to the extent that there is any conflict between the Partner Terms and these Terms, these Terms will govern.
3. Restaurant Services
Restaurant Responsibilities You agree to make meals, food and beverages from the Restaurant available via the Muncho Services ("Meals"") for pickup in the Restaurant or delivery and you agree to comply with all applicable laws, rules, regulations, and standards that pertain to the preparation, marketing, and sale of food. You will remain solely responsible for the safe preparation and quality of all Meals, and will ensure that all Meals match the descriptions and other information provided through the Muncho Services.
Meal Pricing. You are responsible for determining and setting the retail price for all Meals (the "Retail Price""), but you agree that you will not set a Retail Price higher than the amount you are charging for similar meals in-restaurant. Unless otherwise explicitly stated in an applicable Order Form, you are the “retailer” or “seller” of all Meals for local and state sales tax purposes and the responsible party for collection and remittance of applicable sales tax. You are solely responsible for determining all applicable sales tax and correctly communicating it to Muncho. Muncho will collect the tax as communicated by you. You are solely responsible for remitting the sales tax in a timely manner. Muncho will not independently verify the amount of sales tax or the application of sales tax to the Meals. You agree that, at Muncho’ sole discretion whether or not expressly stated in an applicable Order Form, Muncho may collect and remit sales and use taxes in jurisdictions where Muncho is considered a marketplace facilitator (or similar designation) and may have sales and use tax collection and remittance obligations under applicable law. You agree that neither Muncho nor any agent or contractor providing services on behalf of Muncho (including, e.g., any delivery service provider) holds title or acquires any ownership interest in or to any Meals that you prepare or provide through the Muncho Services. For the avoidance of doubt, Muncho reserves the sole right and discretion to charge Muncho end-users any fees in connection with the Services.
Promotions. From time to time, Muncho may offer promotional discounts for the Meals, in its sole discretion (“Muncho
Promotions”). Muncho Promotions are paid for by Muncho and will not reduce any fees otherwise due to Restaurant. Restaurant and Muncho may also, from time to time, mutually agree to offer promotional discounts for the Meals (“Restaurant Promotions”), which are paid for by Restaurant. You acknowledge that cancelled promotions can cause serious reputational harm to us and agree to give Muncho at least one (1) business days’ notice to firstname.lastname@example.org prior to cancelling any Restaurant Promotions subject to a $500 penalty for any violation.
Rewards Program. The Muncho Services may include a rewards program (the “Rewards Program”) that provides point-based rewards for purchases made through the Muncho Services, which can be redeemed for future Meals. You hereby agree to participate in the Muncho Rewards Program, provided that you will have sole discretion in customizing all prices and point allocations.
Payment. In consideration for the Muncho Services, Muncho will charge you, and you agree to pay, all fees in accordance with the Order Form and as otherwise applicable in Muncho’s sole discretion (“Fees”). For the avoidance of doubt, all Fees shall be based on the aggregate Gross Merchandise Value for all Meals sold by you during the relevant time period. Gross Merchandise Value shall mean the revenues received by you, after the deduction of Muncho Promotions and applicable sales, excise and similar taxes but, if applicable, before the deduction of any corporate and franchising deductions, discounts, commissions and similar adjustments. Each week, we will remit to you the total Retail Price collected for all Meals sold by you through the Muncho Services, plus the taxes collected on your behalf, less (i) the Fees, (ii) any Restaurant Promotions, and (iii) any refunds (including any food safety refunds) given to your customers (such remitted amount, the “Meal Revenue”). Muncho may refund the amount paid by your customers for Meals including sales tax at any time in its reasonable discretion. Muncho may withhold taxes as required by law. Unless otherwise stated in an applicable Work Order, we are each responsible for our own expenses and costs. You expressly authorize Muncho’s service provider of which Muncho notifies Restaurant, to originate credit transfers to your financial institution. You agree to promptly and regularly review and confirm all invoices, transactions, fees and other charges provided to you through the Muncho Services and to promptly notify Muncho of any discrepancies or other disputes within thirty (30) days of the invoice or transaction giving rise to the discrepancy or dispute. You agree that you will be deemed to have accepted and ratified any such invoice, transaction, fee or charge if you do not communicate a written claim or objection within such thirty (30) day period.
4. Using Our Services
Use. You may use our Services only in compliance with these Terms and as permitted by law. Our Services are not designed for use outside the United States, and by using our Services you are representing to us that you are in the United States. You agree not to interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. We may suspend or stop providing our Services to you if you do not comply with our terms or policies, or if we are investigating suspected misconduct.
Food Safety. By using the Services, you agree to comply with all applicable laws, rules, regulations, and standards that pertain to the preparation, marketing, and sale of food including all such laws rules, regulations and standards regarding proper food preparation and menu disclosure and you agree that Muncho is not liable for any preparation of food in connection with your use of the Services. Muncho does not independently verify, and is not liable for any representations made by you regarding your food, including any descriptions, disclosures, or representations made by you in connection with your menu.
Intellectual Property. The Services are protected by copyright, trademark, trade secret and other U.S. and foreign laws. These Terms or your use of the Services do not grant you any right, title or interest in the Services, others' content in the Services, Muncho trademarks, logos or other brand features. We welcome feedback, but note that we may use comments or suggestions without any obligation to you. You agree to grant and hereby grant to Muncho a non-exclusive, worldwide, royalty-free, transferable, and revocable license to use the trademarks, service marks, trade names, meal names, meal descriptions, logos, designs and other designations, copy, or brands used by you in connection with your business or any other content that you post, upload, share, store, or otherwise provide through the Services ("Restaurant IP"). This license is expressly limited: (i) to uses by Muncho in connection with the Services; and (ii) as specifically permitted by you in writing. You are hereby granted a non-exclusive, non-transferable, and revocable license to use the trademarks, service marks, trade names, logos, designs and other designations, copy, or brands used by Muncho in connection with the Muncho Services ("Muncho IP") solely for the purpose of promoting the Muncho Services on your premises, provided that you agree to use Muncho IP solely in compliance with any rules and guidelines provided by us. You also agree to immediately cease all use of Muncho IP upon request from Muncho or upon termination or expiration of the Order Form. Other than the license to use the Muncho IP granted in this Section and except as expressly permitted in connection with the Services hereunder, you are not granted any other right, title, or interest in any intellectual property owned by Muncho.
Product Changes. Our Services evolve constantly. As such, the Services may change from time to time, at our discretion. We may stop (permanently or temporarily) providing the Services or any features within the Services to you or to users generally.
Communications. In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
Age Requirement. Our Services are not intended for and may not be used by people under the age of 13. By using our Services, you are representing to us that you are over 13.
Payment Processing. We may bill you directly or use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Muncho Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF Muncho SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR Muncho ACCOUNT.
Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal for Muncho Services. Unless you opt out of auto-renewal, which can be done by contacting us at email@example.com, any Muncho Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a Muncho Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE Muncho SERVICE BY CONTACTING US OR TERMINATE YOUR Muncho ACCOUNT AT LEAST THIRTY (30) DAYS BEFORE THE END OF THE RECURRING TERM, REGARDLESS OF WHETHER YOUR SUBSCRIPTION PERIOD IS MONTHLY OR ANNUAL. Muncho SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, Muncho WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
ALCOHOLIC BEVERAGES POLICY. If an order is placed at a Restaurant which is licensed to sell alcoholic beverages, you represent that both you and, if different, the ultimate recipient of the order are at least 21 years of age.Upon pickup of the order, the recipient shall present a government-issued identification card consistent with applicable law, evidencing proof of legal drinking age. You also agree that the Restaurant may refuse to sell the ordered alcoholic beverages if you appear to be intoxicated when receiving delivery of such products.
You hereby acknowledge that Muncho does not supervise, direct, control or monitor the Restaurant in connection with the sale of alcoholic beverages or any other items and expressly disclaims any responsibility and liability in connection with such sale, including but not limited to any warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code.
5. Your Muncho Account
You need a Muncho account in order to use some of our Services (a "Muncho Account"). To protect your Muncho Account, keep your password confidential. You are responsible for the activity that happens on or through your Muncho Account. Try not to reuse your Muncho Account password on third-party applications. If you learn of any unauthorized use of your password or Muncho Account, contact us at firstname.lastname@example.org.
6. Privacy and Copyright Protection
Copyright Protection. We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of our Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at the end of this Section. It is our policy to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we can find and verify its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Company’s policy:
to remove or disable access to the infringing material;
to notify the content provider, member or user that it has removed or disabled access to the material.
Your Content in our Services
Your Ownership. Some of our Services may allow you to upload, submit, store, send or receive content, for example the menu items for your restaurant. You retain ownership of any intellectual property rights that you hold in that content. In short, what you provide to us stays yours.
Anything you post, upload, share, store, or otherwise provide through the Services is your "User Submission." You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incites hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS AGREED TO BY Muncho IN WRITING, NEITHER Muncho NOR ITS THIRD PARTY SUPPLIERS OR DISTRIBUTORS OR LICENSORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. Muncho, AND ITS THIRD PARTY SUPPLIERS, DISTRIBUTORS AND LICENSORS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, INCLUDING WITH RESPECT TO ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WE PROVIDE THE SERVICES "AS IS". SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS AGREED TO BY Muncho IN WRITING, WE (AND OUR THIRD PARTY SUPPLIERS AND DISTRIBUTORS AND LICENSORS) HEREBY DISCLAIM AND EXCLUDE ALL WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Liability for our Services
TO THE FULLEST EXTENT PERMITTED BY LAW, Muncho AND Muncho’S PAST, PRESENT AND FUTURE OFFICERS, AGENTS, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, EMPLOYEES, SUCCESSORS AND ASSIGNS (THE "Muncho PARTIES"), WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE Muncho PARTIES’ AGGREGATE LIABILITY FOR ANY CLAIMS UNDER THESE TERMS OR THE ORDER FORM, INCLUDING FOR ANY IMPLIED WARRANTIES, WILL NOT EXCEED $300. IN ALL CASES, Muncho, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE, INCLUDING, WITHOUT LIMITATION, ANY FORCE MAJEURE EVENT. EXCEPT AS PROVIDED HEREUNDER, YOUR SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS IS TO DISCONTINUE USING THE SERVICES.
Force Majeure. In the event that Muncho is prevented from performing, or is unable to perform, any of its obligations under these Terms due to acts of God, natural disasters, or other cause beyond its reasonable control, its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Indemnification. You agree to indemnify and hold harmless Muncho, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of (a) your access to, use of, or misuse of the Muncho Services, in a way that is harmful to others including any claim arising from your preparation, description, or sale of food; (b) your violation of any portion of these Terms or the Order Form, any representation, warranty, or agreement referenced in these Terms or the Order Form, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right of publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
8. Resolving Disputes
Agreement to Arbitrate. You and Muncho agree that any dispute arising out of or relating to these Terms or the Order Form or the breach, termination, enforcement, interpretation or validity hereof or thereof, including, without limitation, the determination of the scope or applicability of this agreement to arbitrate, and any other dispute, claim or controversy between the parties hereto (any of the foregoing, a "Dispute"), will be determined fully, finally and exclusively by neutral, binding and confidential arbitration pursuant to the substantive and procedural provisions of the Federal Arbitration Act.
Procedure. The arbitration will be administered by JAMS (or any successor thereof) in San Francisco, California, or the city in which you are located, before a single arbitrator, and it will be initiated and conducted according to the JAMS Comprehensive Arbitration Rules and Procedures; provided, however, that discovery will be limited to an exchange of relevant documents, unless the arbitrator determines that additional discovery is necessary. The arbitrator will follow the substantive laws of the State of California, to the extent such laws are not inconsistent with the Federal Arbitration Act, in adjudicating any Dispute. Judgment on any award may be entered in any court having competent jurisdiction in San Francisco County, California, and the parties hereby submit to the jurisdiction of such court for this purpose.
Confidential Proceedings. The parties will maintain the confidential nature of any arbitration proceeding and will not, without the prior written consent of the other Party, disclose to any other person or entity the fact, existence, substance, contents, or results of the arbitration, any arbitration hearing, the award of the arbitrator, or any other proceeding in connection with the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law or judicial decision.
NO CLASS ACTION. EXCEPT AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE RESTAURANT OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER RESTAURANT OR USER.
Tax Audits. You agree to provide information requested by Muncho within a reasonable period in the event of any sales tax audit. You agree to indemnify Muncho against any assessment of sales tax, penalties, and interest imposed by any state or local jurisdiction and any costs associated thereto. You further agree to indemnify Muncho against any assessments, fees, judgments, and penalties resulting from lawsuits that may be brought by any party for the improper collection of sales tax.
Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Santa Clara County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute notice process described above. Both you and Muncho consent to venue and personal jurisdiction there.
You are free to stop using our Services at any time upon written notice to us. We reserve the right to suspend or terminate your access to the Services immediately upon notice to you if: (a) you are in breach of these Terms, (b) you are using the Services in a manner that would cause a real risk of harm or loss to us or other users, (c) in our sole discretion for any reason at any time.
10. Modification of Terms
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will send you an email, and/or notify you by some other means.
If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
11. About these Terms
Translations. This Agreement is in the English language only, which shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties hereto.
Third Party Rights. These terms control the relationship between Muncho and you. They do not create any third party beneficiary rights.
No Waiver. If you do not comply with these terms, and we do not take action right away, this does not mean that we are giving up any rights that we may have (such as taking action in the future). If a particular term is not enforceable, this will not affect any other terms.
Assignment. You may not assign any of your rights under these Terms, and any such attempt will be void. Muncho may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services (whether by sale of stock or assets, merger, consolidation or otherwise).
Governing Law. The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services.