Merchant Terms of Use as of 02/02/2021

BEFORE YOU USE THE RAMENGUYS PLATFORM ("PLATFORM") PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH RAMENGUYS OR USING THE RAMENGUYS PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS ("MERCHANT") AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET.

1. Definitions.

  1. Customer” means the customer who places an order for Merchant products through the Ramenguys Marketplace or PickUp.
  2. Ramenguys Marketplace” means Ramenguys’s online platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the Ramenguys website or mobile application for delivery/shipping to the Customer. This is also referred to herein as the Ramenguys Platform.
  3. Ramenguys Services” means Ramenguys Marketplace and PickUp, as applicable.
  4. Marketplace Orders” means orders for Merchant Products through the Ramenguys Marketplace from Ramenguys customers.
  5. Merchant” means the restaurant or other entity that has agreed to participate in the Ramenguys Services.
  6. Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.
  7. Merchant Stores” means the Merchant restaurant locations that participate in the Ramenguys Services.
  8. Marketplace Term” means the term of the agreement between Ramenguys and Merchant for the Ramenguys Marketplace.
  9. "PickUp" means the online Ramenguys platform where Customers can place an order for Merchant Products for pick up by the customer at a Merchant location. 
  10. PickUp Term” means the term of the agreement between Ramenguys and Merchant for the PickUp.
  11. Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
  12. “Sales Commission” means the commission fees collected by Ramenguys in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Ramenguys Platform, which is charged as a percentage of revenues transacted on the Ramenguys Platform.

2. The Parties' Relationship. Ramenguys provides an online marketplace platform using web-based technology that connects Merchants and customers, as described in these Terms for Ramenguys Marketplace and PickUp. Ramenguys is not a merchant or delivery service; it is an online platform. Merchant and Ramenguys agree they are independent businesses whose relationship is governed by the Sign-Up Sheet and these Terms. Each Party shall be responsible for its own expenses, profits and losses.

3. Marketplace Core Responsibilities. For Merchants that have agreed to participate in the Ramenguys Marketplace, Ramenguys and Merchant shall have the following responsibilities during the Marketplace Term:

a.     Ramenguys's Responsibilities. Ramenguys will, in a timely manner:

  1. Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the Ramenguys Platform;
  2. Accept Marketplace Orders from Customers;
  3. Forward each Marketplace Order to the relevant Merchant Store; and
  4. Pay the Merchant in accord with the Parties' agreements, deduct the applicable Sales Commission, marketing fees (for identifiable orders), and any other fees you have agreed to with Ramenguys. 

b.     Merchant's Responsibilities. Merchant will, in a timely manner:

  1. Provide Ramenguys with the a list of Merchant Products to sell on the Ramenguys Platform, including the price of each item on such menu;
  2. promptly make updates via the Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify Ramenguys of any errors or changes in writing;
  3. Confirm all Marketplace Orders from Ramenguys;
  4. Prepare the Merchant Products for each Marketplace Order by the designated time;
  5. Notify Ramenguys of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
  6. Notify all Merchant store staff members of the relationship with Ramenguys immediately upon execution of this Agreement;
  7. Place an order of the shipping packages (corrugated boxes, insulated inners, ice pack gels and boilable food packs) to Ramenguys, if they are short; and
  8. On an ongoing basis, review and confirm the transactions, fees and charges on orders, and promptly communicate to Ramenguys any inaccuracies.

4.     PickUp Core Responsibilities. For Merchants that have agreed to participate in the PickUp program, during the PickUp Term, Ramenguys will have the same responsibilities as set forth in Section 3(a) and Merchant will have the same responsibilities as set forth in Section 3(b). 

5.     Refunds and Re-Orders. Refunds and re-orders will be addressed as follows::

  1. Marketplace Refunds. In the event that Ramenguys, in its sole reasonable discretion, has to issue a refund, credit or re-order on 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 fault of Ramenguys.
  2.  Shipping Refunds. Merchant acknowledges and agrees that Ramengyus shall be responsible only for facilitating the shipping of Merchant Products to Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant Products, including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Products. Any complaints regarding the timeliness or quality of a shipping service shall be reported by Merchant to shipping companies. 
  3. PickUp Refunds. Ramenguys shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to Customer’s Ramenguys account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that Ramenguys, in its sole discretion, determines to issue a refund, credit or re-order for Customer’s Order, Merchant will prepare the food to the same specifications as the original PickUp Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

8.     Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows::

  1. Ramenguys Marketplace and PickUp. Ramenguys will pay for Marketplace and PickUp Orders fulfilled by Merchant 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. Ramenguys shall be entitled to deduct from such payments Ramenguys’s Sales Commission and any other fees you have agreed to in your Sign-Up Sheet. Merchant agrees Ramenguys may charge the customer fees, including but not limited to Service Fee, and Small Order Fee where applicable in Ramenguys's sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. 
  2. In some jurisdictions in the United States, Ramenguys may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Ramenguys will inform Merchant that Ramenguys will remit Collected Taxes to the tax authority and Ramenguys will be relieved of any responsibility to remit such Collected Taxes to Merchant.
  3. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders, and to promptly communicate to Ramenguys in writing any claimed inaccuracies, so that Ramenguys has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Ramenguys and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Ramenguys 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 Ramenguys regarding such transaction, fee, charge or order within such 60-day period.

7.   Merchant Content and Trademark; Photographs of Menu Items.

  1. During the Marketplace Term or PickUp Term, as applicable, Merchant grants to Ramenguys a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use 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 Ramenguys.
  2. If photographs of Merchant’s menu items are not available or if they do not meet Ramenguys’s requirements, as reasonably determined by Ramenguys, then Merchant consents to Ramenguys engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the Ramenguys Marketplace as representations of Merchant’s menu items.

8.   Confidential Information.

  1. 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, Ramenguys Data is the Confidential Information of Ramenguys.
  2. 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.
  3. The Receiving Party shall not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement.

9.   Termination. Merchant may terminate this Agreement for any reason at any time upon 14 days prior written notice. Ramenguys 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. Neither Merchant nor Ramenguys 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 Ramenguys.

10.   Modifications.  Ramenguys 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. Ramenguys may, at its sole discretion, remove Merchant Products or Stores from the Ramenguys Marketplace if Ramenguys determines that such Merchant Products or Merchant Store could subject Ramenguys to undue regulatory risk, health and safety risk, or other liability. Ramenguys 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://ramen-guys.com/pages/merchant-terms-of-use. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

11.   Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

  1. 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.
  2. 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, (ii) all applicable laws related to third party intellectual property and other proprietary rights.
  3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), 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 Ramenguys of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Ramenguys 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 Ramenguys Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Ramenguys Marketplace or request delivery of any age-restricted products through the Ramenguys Platform without first entering into a separate agreement with Ramenguys memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) it will not disclose any information related to a Dasher 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.
  4. 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 Ramenguys 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 Ramenguys services or Platform. 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.

12.   Indemnification. 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. In addition, Merchant will defend, indemnify and hold harmless Ramenguys 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 Products, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Ramenguys. 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. 

13.   Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH RAMENGUYS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 13 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

  1. Scope of Arbitration 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 arbitration, 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 Ramenguys 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). Ramenguys and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration 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. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST RAMENGUYS—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH RAMENGUYS, 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 ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST RAMENGUYS IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
  2. 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 Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Ramenguys. The arbitration 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 Arbitration 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 Ramenguys.
  3. Waiver of Jury Trial. YOU AND RAMENGUYS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Ramenguys are instead electing to have claims and disputes resolved by arbitration, except as specified above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

14.  Litigation Class Action Waiver.  To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 13, 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 Arbitration 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.

15.  Attorneys’ Fees. In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.

16.  General Provisions. As set forth on the Sign-Up Sheet between Merchant and Ramenguys, 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 shall survive and shall remain in full force effect beyond the termination or expiration of these Terms. This Agreement is governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. In consideration of Ramenguys's agreement to utilize the law of the Merchant's place of business, Merchant agrees that, except as set forth above in Section 13 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of Los Angeles, California. Merchant may not assign this Agreement in whole or in part without Ramenguys’s prior written consent. Ramenguys may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any 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).