Updated as of August 26th 2022.
“Adverse Event” refers to any negative symptoms a person encounters as a result of handling and/or consuming any item in an Order, including, without limitation, allergic responses, bacterial infections, and viruses.
“Commissions” means an amount payable by the Restaurant to Lexie on each Order transaction, as set forth on the Pricing Page.
“Convenience Fee” refers to the fee that Lexie charges to Customers for each Order placed through the Marketplace, as set forth on the Pricing Page.
“Credit Card Processing Charges” refers to the processing fees for credit cards that the Restaurant must pay to Lexie for each Order, as set forth on the Pricing Page.
“Customer” refers to a certain profile that submits an Order.
“Delivery Fee” refers to the cost associated with delivering Orders through Lexie’s network of service providers, as set forth on the Pricing Page.
“Fees” mean, collectively, the Subscription Fees, Credit Card Processing Charges, Delivery Fee, and Commissions.
“Marketplace” refers to Lexie’s proprietary ordering platform, which enables Users to place Orders from any registered restaurants.
“Menu” refers to the menu of the Restaurant as submitted to Lexie by or on behalf of the Restaurant, or as gathered by Lexie (manually or automatically) from the Restaurant Website.
“Order” refers to a Customer’s order/request for the Restaurant’s food and/or drinks placed through Lexie’s Portal.
“Order Data” refers to information gathered by or via Lexie that is contained in an Order (which may include PII of Customers).
“Personally Identifiable Information” or “PII” is referred to as any data or information that may be used to specifically identify, reach out to, or find a single person, or that can be combined with data from other sources to specifically identify a single person.
“Portal” refers to the online services made available to the Restaurant to manage and keep track of orders, payments, and promotion data, including, without limitation, the Storefront and the Marketplace.
“Pricing Page” means the webpage(s) that may be navigated to by visiting lexie.ai, and clicking “Pricing”, as may be updated by Lexie from time to time.
“Restaurant App” means any Restaurant-branded mobile iOS applications created by Lexie for the Restaurant pursuant to this Agreement.
“Restaurant Content” is any content that has been sent to Lexie by Restaurant or by a third party acting on Restaurant’s behalf. It also includes any content that Lexie has manually or automatically gathered from the Restaurant Website, including, without limitation, such as the Restaurant Marks, the Menu, and any pictures, videos, texts, or audio recordings.
“Restaurant Marks” refers to each and every trademark, service mark, logo, and other distinctive brand elements used by Restaurant.
“Restaurant Website” refers to a collection of information that has been stored on a computer server and made publicly available via the Internet using the hypertext transfer protocol or any protocol that may have replaced it.
“Security Incident” is defined as the processing, destruction, alteration, or access of PII of Customers by a third party without authorization or in an unlawful manner, as well as the unauthorized or unlawful disclosure of PII of Customers to a third party.
“Software” refers to Lexie’s software consisting of, or contained in, the Portal.
“Storefront” refers to Lexie’s web-based or mobile meal-ordering system, which allows Customers to place direct orders with the Restaurant.
“Subscription Fee” refers to the monthly charges that the Restaurant pays to Lexie in exchange for providing the services and products to the Restaurant, as set forth on the Pricing Page.
“User” refers to a Restaurant employee, contractor, or agent who has been granted permission by the Restaurant to access and use the Portal on the Restaurant’s behalf, subject to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Portal will be limited to their provision or receipt of services to Restaurant.
“Widget” refers to Lexie’s reusable digital element of a graphical user interface on the Software that displays an information arrangement and provides standardized data handling.
Subject to the terms and conditions of this Agreement, Restaurant hereby grants Lexie a non-exclusive, worldwide, perpetual, fully paid-up, royalty-free right and license to use, copy, encode, collect, retrieve (including through automated means), store, archive, distribute, transmit, modify, edit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content and the Restaurant Marks in any and all media now known or hereafter devised in connection with the following:
Any goodwill created by Lexie’s use of the Restaurant Content and the Restaurant Marks in accordance with this Agreement will be used for the above purposes. The Restaurant Content and the Restaurant Marks may only be edited or modified by Lexie for purposes of performing Lexie’s obligations and services in connection with the Portal.
Except as otherwise set forth in this Agreement, Lexie does not transfer to the Restaurant any right, title or interest to the Software.
The Restaurant will not use or disclose the Software in any way that is not specifically permitted by this Agreement (and will not allow any third party to do so either). Without limiting the above, the Restaurant will not and will not let any third party to do any of the following:
Lexie issues payouts to the Restaurant via the Stripe service. The Restaurant must sign the Connected Account Agreement (or “CAA”) with Stripe and its sponsored bank in order to use the Software. The CAA is available at <https://stripe.com/connect/account-terms>. By entering into this Agreement, the Restaurant acknowledges that it has:
Please be aware that Lexie is not a party to the CAA; rather, the three (3) parties to the CAA are the Restaurant, Stripe, and Stripe’s sponsoring bank. As a result, Lexie has no obligations or liabilities to the Restaurant under the CAA. The Restaurant should contact Stripe as specified in the CAA if it has any questions or concerns about the CAA.
Following the execution of this Agreement, the Restaurant shall give Lexie specific location and payment information for its restaurant operation(s). The Restaurant will be required to generate a personal sign-in name (“Sign-In Name”) and password (“Password”) and submit specific additional required information (“Unique Identifiers”) that will be used to authenticate the Restaurant’s Users when logging onto the Portal. The Restaurant must enter true, correct, up-to-date, and comprehensive information when setting up the account on the Portal. Any use, abuse, or communications entered through the Portal using one or more of the Restaurant’s Sign-In Name, Password, and Unique Identifiers are completely the responsibility of the Restaurant, and the Restaurant is solely responsible for maintaining their secrecy. If the Restaurant has to modify or deactivate any Unique Identifiers, Password, Sign-In Name, it will advise Lexie through the Portal. Lexie expressly waives and disclaims any loss or damage brought to Restaurant, the Users or any other person in connection with any unauthorized use of the Restaurant’s Portal account.
Subscription to the Storefront service by the Restaurant shall be subject to the following terms and limitations.
Subject to the terms and conditions of this Agreement, Lexie hereby grants the Restaurant a limited, non-exclusive, and non-transferable right to authorize Users to access and use the Storefront for the Term.
Commissions and Credit Card Processing Charges, if any, are subtracted from the amount due to the Restaurant for Orders. The Restaurant must pay Lexie its then-current Subscription Fee for the relevant subscription period chosen by Restaurant if Restaurant has subscribed to the Storefront services.
For the complete payment of any and all Subscription Fees and Taxes due under this Agreement, the Restaurant hereby authorizes Lexie to charge the Restaurant’s credit card, bank account, or other approved facility supplied during the Portal registration procedure, and the Restaurant hereby consents to the same.
In connection with all Orders, the Restaurant represents, warrants, and agrees with Lexie that the Restaurant will do the following:
This Agreement shall come into force on the Effective Date and continue for a period of one year unless terminated by any of the Parties as per Section 6.2 below. Upon the expiration of the then current term of this Agreement, the term of this Agreement shall automatically renew for an additional one year term unless terminated by any of the Parties as per Section 6.2 below.
(x) any action or inaction that could endanger Lexie, the Portal, the Software, its systems, or any third-party systems; and
(y) any dishonest or unlawful activity, or any other activity that might expose Lexie or any other party to legal liability.
Within a reasonable period following termination of this Agreement:
Lexie is the sole owner of all rights, titles, and interests in and to its Software, including the Restaurant App, as well as all modifications, additions, advancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Lexie Intellectual Property”). Other than what is specifically given under this Agreement, the Restaurant will have no rights in relation to Lexie’s Intellectual Property. The Restaurant currently and in the future will be the only owner of all rights, titles, and interests in and to the Restaurant Content and Restaurant Marks, including all copyrights and other intellectual property rights relating thereto ( the “Restaurant Intellectual Property”). Beyond the rights specifically provided below, Lexie will have no further rights with regard to the Restaurant Intellectual Property.
Lexie and Restaurant shall share ownership of all Order Data, during the Term and indefinitely thereafter unless otherwise specified herein. The Order Data may be used by either Party for internal business purposes, for purposes of performing under this Agreement, and for other lawful purposes in accordance with all applicable laws, rules, and regulations, including, without limitation, applicable privacy and data protection laws and regulations. Moreover, the Restaurant may also share Order Data with third parties it has agreements with, provided the following:
Notwithstanding the above, Restaurant hereby represents, warrants, and covenants that it will not sell the Order Data in any way, whether in full or in part. Additionally, Restaurant will not (and won’t allow any third party to):
Each Party represents and warrants that:
In addition to the representations and warranties set forth in Section 8.1, the Restaurant represents, warrants, and covenants the following:
LEXIE CANNOT GUARANTEE THAT THE SOFTWARE OR ANY SERVICES WILL BE AVAILABLE AT ALL TIMES OR THAT ALL SOFTWARE ERRORS OR PROBLEMS RAISE BY RESTAURANT WILL BE FIXED. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND ANY OTHER MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” REGARDING THE REVENUE THAT THE RESTAURANT MAY OR MAY NOT GENERATE THROUGH THE SOFTWARE, LEXIE MAKES NO GUARANTEE. APART FROM WHAT IS EXPRESSLY STATED IN SECTIONS 8.1 AND 8.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE SOFTWARE, THE ORDER DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, WITHOUT LIMITATION, ANY WARRANTIES RELATING TO OWNERSHIP, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A SPECIFIC PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM CUSTOM, PRACTISE, OR COURSE OF DEALING. TO THE EXTENT THAT A PARTY IS UNABLE TO DISCLAIM AN IMPLIED WARRANTY DUE TO APPLICABLE LAW, THE SCOPE AND DURATION OF THAT WARRANTY WILL BE AS SHORT AS IS PERMITTED BY THAT LAW.
Orders may be delivered by unaffiliated delivery services and/or third-party delivery services that are partnered with Lexie. The use of such unaffiliated delivery services by the Restaurant is at the risk of the Restaurant, and Lexie is not responsible to the Restaurant, the Customers, or any third parties for their acts or omissions.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION OR IN FACT KNEW OF THE POSSIBILITY THEREOF, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW THEREOF. EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO LEXIE UNDER AN APPLICABLE ORDER FORM DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION; PROVIDED, HOWEVER, THE RESTAURANT’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED $2,500, AND LEXIE’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED $100, IF THE RESTAURANT ONLY SUBSCRIBES TO THE MARKETPLACE. NOTWITHSTANDING THE AFOREMENTIONED: (I) THE LIMITATIONS AND EXCLUSIONS OF LIABILITY OUTLINED IN THIS SECTION DO NOT APPLY TO: (A) DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (B) INDEMNIFICATION OBLIGATIONS OF A PARTY; OR (II) IN THE CASE OF ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES, LEXIE’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO LEXIE UNDER THE RELEVANT ORDER; AND (III) THIS AGGREGATE LIABILITY OF LEXIE AND ITS DELIVERY SERVICE PROVIDER WILL NOT EXCEED $250 FOR ANY SINGLE DELIVERY ORDER.
Each Party shall defend, hold harmless, and indemnify the other Party, as well as the other Party’s officers, directors, employees, lawyers, and agents (collectively, the “Indemnified Parties”), from and against any and all losses, liabilities, damages, fines, and other costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties with respect to any other third-party claim, action, or proceeding to the extent arising from, in connection with, or alleging that the Party has violated any of its representations, warranties, covenants, and other obligations under this Agreement. The Restaurant shall also defend, hold harmless, and indemnify Lexie’s Indemnified Parties from and against any and all losses incurred by Lexie’s Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent resulting from or connected to: (i) an unaffiliated delivery service’s breach of this Agreement or any unaffiliated delivery service Agreement, or violation of applicable law; (ii) an Adverse Event; or (iii) processing of alcoholic beverage orders as well as Customer purchases and/or consumption of alcoholic beverages.
During the Term, Lexie will be permitted, but not required, to publicly announce that Restaurant is a client of theirs on the Portal and through social media. Additionally, the Parties shall jointly issue at least one (1) press statement (or more, if agreed upon by the Parties) proclaiming their relationship upon the reasonable request of Lexie. The Parties will agree on the precise timing and content of each such news release.
The inability of either Party to exercise or enforce any right provided for in this Agreement in any way may not be deemed a waiver of any other rights herein. In the event of any failure by any Party to perform its obligations under this Agreement due to an Adverse Event, neither Party shall be liable to the other Party during the duration thereof. If any part of this Agreement is determined to be invalid or unenforceable, that Party will be limited or removed to the minimum extent necessary to ensure that the rest of this Agreement is still valid and enforceable. No Party may assign, transfer, or sublicense this Agreement except with the prior written approval of the other Party and only to a successor to all or substantially all of that Party’s business or assets (for which no consent of the other Party is required). This Agreement is made under the laws of the State of California, without giving respect to its principles of conflicts of law and shall be governed by and construed in accordance with those laws. As a result of this Agreement, no agency, partnership, joint venture, or employment is created, and neither Party has any kind of power to bind the other Party in any way.
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