Effective: On Signing/Sign-up Date
BEFORE YOU USE THE KASIMENU PLATFORM ("PLATFORM" or “KASIMENU PLATFORM”) OPERATED BY KASIMENU PTY LTD (2018/515146/07) (“KASIMENU,” “WE” OR “OUR”) PLEASE READ THESE TERMS CAREFULLY. BY COMPLETING THE SIGN-UP SHEET WITH KASIMENU, SIGNING THIS TERMS OF SERVICE OR BY USING THE KASIMENU PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTAKING STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS AND CONDITIONS ON YOUR SIGN-UP SHEET.
The Parties' Relationship:
KasiMenu provides an online marketplace platform using web-based technology that connects Merchants, independent delivery contractors ("Drivers"), Suppliers and Customers ("Platform"), as described in these Terms for KasiMenu Marketplace. KasiMenu is not a merchant or delivery service; it is an online connection platform. Merchant and KasiMenu agree they are independent businesses whose relationship is governed by the Sign-Up Sheet and these Terms. Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between KasiMenu and Merchant (or Merchant's employees, representatives or locations), KasiMenu and Driver, or KasiMenu and customers. Except as expressly set forth in the Sign-Up Sheet and these Terms, each Party shall be responsible for its own expenses, profits and losses.
Marketplace Main Responsibilities.
For Merchants that have agreed to participate in the KasiMenu Marketplace, KasiMenu and Merchant shall have the following responsibilities during the Marketplace Term:
a. KasiMenu Main Responsibilities. KasiMenu will, in a timely manner:
i. Display Merchant’s name, logo, photographs, a listing of the Merchant Stores and a menu of Merchant Products on the KasiMenu Platform;
ii. Receive Marketplace Orders from Customers;
iii. Forward each Marketplace Order to the relevant Merchant Store; and
iv. Forward each Marketplace Order to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.
v. Pay the Merchant in accord with the Parties' agreements, deducting applicable, Commission Fees, Promotion Fees, Marketing fees, Subscription fees, Rental and Activation Fees.
b. Merchant Main Responsibilities. Merchant will, in a timely manner:
i. Provide KasiMenu with the Merchant’s in-store or takeaway menu, including the price of each item on such menu, as well as Events and Hosted Packages;
ii. Monitor Merchant’s menu and store information on the KasiMenu Marketplace, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify KasiMenu of any errors or changes in writing;
iii. Accept all Marketplace Orders placed by KasiMenu from Merchant’s then-current menu;
iv. Confirm all Marketplace Orders from KasiMenu;
v. Prepare the Merchant Products for each Marketplace Order for Collection by a Driver at the designated time;
vi. Process Marketplace Orders in the order in which they are received;
vii. Notify KasiMenu of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
viii. Notify KasiMenu of its days and hours of operation, and remain open for business on KasiMenu the same days and hours of operation as Merchant’s in-store business; notify KasiMenu of any changes to Merchant’s hours of operations on holidays; and notify KasiMenu if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;
x. Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard takeaway or delivery order.
xi. Use its standard business practices to prepare the Merchant Products that are the subject of each Marketplace Order; and
xii. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to KasiMenu any inaccuracies.
KasiMenu POS Main Responsibilities.
For Merchants that have agreed to participate in KasiMenu POS, KasiMenu and Merchant shall have the following responsibilities during the Merchant POS Orders:
a. KasiMenu Main Responsibilities. KasiMenu will, in a timely manner:
i. Provide Merchant with an online order form or access to the Merchant App API to submit requests for deliveries, or receive information through a Third Party Platform;
ii. Forward requests to a Driver, so that the Driver can, on behalf of the Merchant, pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.
b. Merchant Main Responsibilities. Merchant will:
i. Via the online order form, the Merchant App API, or a Third Party Platform, provide information requested by KasiMenu including the Customer’s address, contact information, and any special instructions required for delivery;
ii. Accept and collect payments from Customers for their respective orders;
iii. Notify Customers prior to placing a Delivery Order that their telephone numbers and other personal contact information will be shared with KasiMenu to enable deliveries to be made by Drivers and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from KasiMenu and Drivers; and
iv. Notify KasiMenu if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Merchant hereby consents to receiving text messages and email confirmations from KasiMenu providing status updates and delivery confirmations in connection with each delivery.
v. On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to KasiMenu any inaccuracies.
c. Delivery Operating Procedures.
i. Order Placement. Merchant agrees to submit a Delivery Order for delivery facilitation at least twenty-four (24) hours in advance of scheduled delivery, and in no event less than two (2) hours in advance of scheduled pick-up. This will primarily be for orders that require longer preparation. Exceptions will be mutually agreed to by the Parties.
ii. Operating Hours. The collection and drop-off of deliveries will be scheduled to take place during KasiMenu’s standard hours of availability, as may be updated from time to time in KasiMenu’s sole discretion. Merchant agrees to abide by the following standard procedures: (i) to notify KasiMenu of any changes to its hours of operations on natioanl holidays with reasonable advance notice; and (ii) to notify KasiMenu with reasonable advance notice if a Merchant location closes earlier than standard operating hours or plans to close earlier than standard operating hours.
iii. Delivery Radii. KasiMenu will only accept Merchant Delivery Orders to be delivered within a certain preset delivery radius based on either the Merchant or the End-Customer location, which will be communicated to Merchant.
iv. Cancellations. Fees owed for any Merchant Delivery Orders cancelled within twenty-four (24) hours of a Schedule for Later delivery are non-refundable. If provided more than two (2) hours notice, but less than twenty-four (24) hours notice, KasiMenu will make reasonable efforts to accommodate changes. Particularly for orders that require longer preparation. Otherwise, fees owed for any Merchant Delivery Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.
v. Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with KasiMenu prior to submitting any delivery requests to KasiMenu.
Collection Main Responsibilities.
For Merchants that have agreed to participate in the Collection program, during the Collection Term, KasiMenu will have the same responsibilities as set forth in Section 2 (a)(i) - 1(a)(iii) and Merchant will have the same responsibilities as set forth in Section 2 (b)(i) - (xi).
Refunds and Re-Orders.
Refunds and re-orders will be addressed as follows:
a. Marketplace Refunds. In the event that KasiMenu, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer’s Order, Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the gross negligence or willful misconduct of KasiMenu recruited Drivers or KasiMenu.
b. Delivery Refunds. Merchant acknowledges and agrees that KasiMenu shall be responsible only for facilitating the delivery of Merchant Product(s) to Customers, and, if applicable, providing delivery status updates to Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints directly to KasiMenu. Any complaints regarding the timeliness or quality of a Driver’s delivery service shall be reported by Merchant to KasiMenu. If the completion of a Delivery Order is more than 45 minutes late and due to fault of KasiMenu, KasiMenu may reimburse Merchant for all or a portion of the delivery cost of the applicable Delivery Order to the extent permitted by law. If Merchant elects to refund a Customer for any reason, such election shall not obligate KasiMenu to provide a corresponding reimbursement to Merchant. In the event that a Merchant Product has been visibly damaged with proof from customer, KasiMenu may reimburse Merchant for all or a portion of the order subtotal. For the purposes of this agreement, “Merchant Product” is the actual food or beverage item, not the packaging that contains the Merchant Product. In no event shall KasiMenu be obligated to issue any refunds directly to Customers.
c. Collection Refunds. KasiMenu shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to a Customer’s KasiMenu account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that KasiMenu, in its sole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Merchant will prepare the food to the same specifications as the original Collection Order (in the case of a reorder) and bear the full cost of that refund, credit or re-order.
With respect to the KasiMenu Marketplace, Merchant will install any equipment reasonably required by KasiMenu for Merchant to receive and process Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by KasiMenu, Merchant will pay KasiMenu an Order Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the Order Equipment to access the KasiMenu Platform in order to receive, process, and accept Marketplace Orders. Any Order Equipment provided by KasiMenu will remain KasiMenu’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware, and shall notify KasiMenu in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. KasiMenu may restrict or rescind Merchant’s right to use the KasiMenu Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by KasiMenu (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). KasiMenu may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly or withrawal payments. Merchant agrees to pay all subscription fees and deposits reasonably charged by KasiMenu for Order Equipment, and agrees KasiMenu may deduct such fees and deposits from amounts payable by KasiMenu to Merchant.
Payment, Fees, Title and Taxes.
Payment, fees, and taxes shall be addressed as follows:
a. KasiMenu Marketplace and Collection. Payment for Marketplace Orders fulfilled by Merchant will be settled to the Merchant’s specified “Withdrawal Account” each week on a consistent day of the week, subject to change with no less than 10 days’ notice to Merchants by email or service notification, provided that KasiMenu shall be entitled to deduct from such settlement payments Promotion Fees, marketing fees, Activation Fees and subscription fees. Any time withdrawals can be manually processed by Merchant, but it can take up to 5 days to process. If Merchant has opted for KasiMenu to provide Order Equipment, KasiMenu will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Merchant’s right to use the Order Equipment to access the KasiMenu Platform in order to receive, process, and accept Orders. Merchant agrees KasiMenu may charge the customer fees, including but not limited to a delivery fee, a service fee, a surcharge fee, and/or small order fee where applicable, as well as an additional markup for Merchant Products, in KasiMenu's sole discretion, and, in such circumstances, the additional mark-up will be added to the Promotion Fee. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a menu item, KasiMenu shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to KasiMenu of such pricing change.
b. KasiMenu POS. Merchant will pay KasiMenu a fee per Drive Order as mutually agreed. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. As agreed by the parties, payment of all fees shall be as follows: (i) Merchant shall pay the fees by credit card or EFT at the time of ordering, or (ii) KasiMenu shall invoice Merchant on a monthly basis and Merchant shall pay the invoice within seven (7) days of receipt of such invoice. If any fee is not paid in full by the due date, KasiMenu may assess interest on the unpaid amount for the period beginning on the Payment Date and ending on the date that the amount is paid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law.
c. Review: Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to KasiMenu in writing any claimed inaccuracies, so that KasiMenu has the prompt opportunity to address and resolve any issues and so such issues do not persist, which KasiMenu and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to KasiMenu any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to KasiMenu regarding such transaction, fee, charge or order within such 60-day period.
d. Title: Merchant agrees that Merchant holds title to Merchant Products the subject of any Order until the goods are picked up from Merchant by a Driver or Customer (as applicable), at which point title passes from the Merchant to the Customer. Merchant agrees that neither the Driver nor KasiMenu holds title to or acquires any ownership interest in any Merchant Products that Merchant prepares or provides through the Platform.
Payment processing services for Merchants on the KasiMenu Marketplace and Collection are provided by PayFast, OZOW, Yoco and Cash. As a condition of KasiMenu enabling payment processing services through PayFast, OZOW and Yoco, Merchant agrees to provide KasiMenu accurate and complete information about Merchant’s representative and its business, and Merchant authorizes KasiMenu to share it and transaction information related to Merchant’s use of the payment processing services provided by PayFast, OZOW and Yoco. PayFast, OZOW and Yoco have been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.
Merchant Content and Trademark; Photographs of Menu Items.
a. During the Marketplace Term or Collection Term, as applicable, Merchant grants to KasiMenu a worldwide, royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use, modify, and display the Merchant Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to KasiMenu.
b. If photographs of Merchant’s menu items are not available or if they do not meet KasiMenu’s requirements, as reasonably determined by KasiMenu, then Merchant consents to KasiMenu engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the KasiMenu Marketplace as representations of Merchant’s menu items; provided that Merchant may contact KasiMenu support to have such photographs removed from the Merchant’s store listing and, in such event, KasiMenu will comply in a timely manner.
c. If Merchant chooses to have an individualized Merchant Branded API, they will do so at a prescribed cost that will be discussed between authorized representatives of KasiMenu and Merchant. It is also important to make it clear that the individualized Merchant Branded API belongs to KasiMenu and only bares Merchant Content for a more personalized service.
c. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, KasiMenu Data is the Confidential Information of KasiMenu (and not of the Merchant).
d. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
e. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except where otherwise permitted by this Agreement, not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
f. Where KasiMenu is the Receiving Party, KasiMenu may: (i) disclose and permit access to Merchant’s and its franchisee’s Confidential Information to KasiMenu’s related corporate affiliates; and (ii) use, anonymise and/or aggregate Merchant’s and its franchisee’s Confidential Information for the purpose of providing or improving the KasiMenu Platform or KasiMenu Services.
g. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure
Data Privacy and Security.
Merchant App API. During the Term, KasiMenu grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Merchant App API solely to transmit information to facilitate the KasiMenu POS services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Merchant App API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Merchant App API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Merchant App API; (iv) use the Merchant App API in any manner or for any purpose that violates any law or regulation; and (v) use the Merchant App API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Merchant App API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.
Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice. KasiMenu may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Should there be any outstanding fees payable to KasiMenu, at the time of termination of this Agreement, Merchant agrees that the payable amount will be paid within 7 days of Agreement termination, though, neither Merchant nor KasiMenu will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or KasiMenu.
KasiMenu reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. KasiMenu may, at its sole discretion, remove Merchant Products or Stores from the KasiMenu Marketplace if KasiMenu determines that such Merchant Product or Merchant Store could subject KasiMenu to undue regulatory risk, health and safety risk, or other liability. KasiMenu also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.kasimenu.com/merchant/merchant-terms/. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may terminate this Agreement by notice to KasiMenu.
Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed KasiMenu of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform KasiMenu of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the KasiMenu Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the KasiMenu Marketplace or request delivery of any age-restricted products through the KasiMenu Platform without first entering into a separate agreement with KasiMenu memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable province in which such products will be sold, (v) it will not disclose any information related to a driver or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, KASIMENU HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE KASIMENU PLATFORM, THE MERCHANT APP API, EQUIPMENT OR KASIMENU SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED. IF ANY GUARANTEE, WARRANTY, TERM OR CONDITION IS IMPLIED OR IMPOSED IN RELATION TO THIS AGREEMENT UNDER THE SOUTH AFRICAN CONSUMER LAW OR ANY OTHER APPLICABLE LEGISLATION AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE PROVISION), AND A PARTY IS ABLE TO LIMIT ITS LIABILITY FOR A BREACH OF THE NON-EXCLUDABLE PROVISIONS, THEN THE LIABILITY OF THAT PARTY FOR BREACH OF THE NON-EXCLUDABLE PROVISIONS IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT THAT PARTY’S OPTION: (1) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (2) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and, subject to the Non-Excludable Provisions, KasiMenu shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the KasiMenu services or Platform contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of KasiMenu, Drivers (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11 and Section 14 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property. In addition, Merchant will defend, indemnify and hold harmless KasiMenu from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of KasiMenu. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. KasiMenu assumes no liability, and shall have no liability, for any infringement claim pursuant to section 15(iii) above based on Merchant’s access to and/or use of the KasiMenu Platform following notice of such an infringement claim; any unauthorized modification of the KasiMenu Platform by Merchant; or Merchant’s combination of the KasiMenu Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
Limitation of Liability.
SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID FEES OWED TO KASIMENU BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 15 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE). THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH KASIMENU AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 17 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “MEDIATION AGREEMENT”.
Scope of Mediation Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding mediation, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or KasiMenu may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Mediation Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. This Mediation Agreement shall apply, without limitation, to all claims that arose or were declared before the Effective Date of this Agreement. CASES MAY BEEN FILED AGAINST KASIMENU—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO DECLARE CLASS ACTION CLAIMS, AND BY ACCEPTING THIS MEDIATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO MEDIATION WITH KASIMENU, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO MEDIATION, YOU MAY BRING YOUR CLAIMS AGAINST KASIMENU IN AN INDIVIDUAL MEDIATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum. To begin an mediation proceeding, you must send a letter requesting mediation and describing your claim to KasiMenu’s registered agent. The mediation will be conducted by The Arbitration Foundation of Southern Africa (“AFSA”) under its then-current arbitration rules and pursuant to the terms of this Agreement. AFSA’s arbitration rules are available at https://arbitration.co.za/domestic-arbitration/commercial-rules/ Payment of all filing, administration, and mediation fees will be governed by AFSAs rules. If the arbitrator finds that you cannot afford to pay AFSA's filing, administrative, hearing and/or other fees and you cannot obtain a waiver of fees from AFSA, KasiMenu will pay them for you. In addition, KasiMenu will reimburse all such AFSA filing, adminsistrative, hearing and/or other fees for claims with an amount in controversy totaling less than ZAR 50 000. If AFSA is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mediation Agreement including, but not limited to any claim that all or any part of this Mediation Agreement is void or voidable. The mediation will decide the rights and liabilities, if any, of you and KasiMenu. The mediation proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Mediation Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and KasiMenu.
Waiver of Class or Consolidated Actions; Severability. YOU AND KASIMENU AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS MEDIATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS MEDIATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor KasiMenu is entitled to mediation of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 21, and all other provisions of this SECTION 17 (Dispute Resolution) shall remain in force. If any provision of this SECTION 17 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this SECTION 17.
Opt Out. You may opt out of this Mediation Agreement. If you do so, neither you nor KasiMenu can force the other to arbitrate as a result of this Agreement. To opt out, you must notify KasiMenu in writing of your intention to opt out by sending a letter to KasiMenu 374 Block BB, Soshanguve, 0152. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first becoming subject to this Mediation Agreement. Your notice must include your name and address, your KasiMenu username (if any), the email address you used to set up your KasiMenu account (if you have one), and a CLEAR statement that you want to opt out of this Mediation Agreement. The letter may opt out, at most, only one Merchant, and letters that purport to opt out multiple Merchants will not be effective as to any. No Merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Mediation Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Mediation Agreement has no effect on any other Mediation agreements that you may have entered into with us or may enter into in the future with us.
Survival. This Mediation Agreement will survive any termination of your relationship with KasiMenu.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if KasiMenu makes any future material change to this Mediation Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
Litigation Class Action Waiver:
To the extent allowed by applicable law, separate and apart from the Mutual MEDIATION Provision found in SECTION 18, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the MEDIATION Provision or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
Franchisees operating a restaurant concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by KasiMenu to the Franchisee. The parties anticipate that, in the normal course of performance, KasiMenu and Franchisee will enter into future promotions where written amendment to this Agreement or a Sign-Up Sheet is not necessary and the parties’ performance is sufficient and the terms of this Agreement and/or the Sign-Up Sheet will apply.
Communications from KasiMenu.
Merchant agrees to accept and receive communications from KasiMenu, its affiliated companies and/or Drivers, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to KasiMenu. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialling systems and/or which will deliver pre-recorded messages sent by or on behalf of KasiMenu, its affiliated companies and/or Drivers. Merchant may opt out of such communications in Merchant’s Account Settings, by following the instructions set up in the communication, (for example, by replying “STOP” from the mobile device receiving such messages), or where that communication has been sent by, or on behalf of, KasiMenu, by emailing KasiMenu at firstname.lastname@example.org.
As set forth on the Sign-Up Sheet between Merchant and KasiMenu, the Sign-Up Sheet and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws in South Africa without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 17 (“Dispute Resolution”), the parties hereby consent to non-exclusive jurisdiction in the courts of Gauteng, South Africa. Merchant may not assign this Agreement in whole or in part without KasiMenu’s prior written consent, which KasiMenu will not unreasonably withheld. KasiMenu may freely assign this Agreement. This Agreement is binding upon, and inure to the benefit of the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications under the Parties' agreements must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder). KasiMenu’s address is 374 Block BB, Soshanguve 0152. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.