Terms and Conditions
These Terms will be operational as from July 1, 2021.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE YAMI APPS AND/OR WEB SERVICE PROVIDED BY YAMI TECHNOLOGIES PTY LTD (HEREINAFTER REFERRED TO AS “YAMI,” “WE,” OR “OUR”). WHEN YOU EXECUTE THE SIGN-UP SHEET OR THE STOREFRONT ORDER ADDENDUM WITH Yami OR USE THE PLATFORM, YOU, ANY ENTITY THAT YOU REPRESENT, OR ALL YOUR PARTICIPATING STORES (“You” OR “Merchant”) AGREE TO BE BOUND BY THESE TERMS AS WELL AS THE TERMS ON YOUR SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM
1. Definitions
a. “Delivery API” refers to the Yami application programming interface (API) that allows Yami and the Merchant to exchange data.
b. “Customer” refers to a person who orders Merchant Products through the Yami platform.
c. “Yami Marketplace” refers to Yami’s exclusive online platform where Customers can view, search, and/or order Merchant Products for dine-in, pick-up, or Merchant Delivery to the Customer via the Yami website or mobile application.
Yami Marketplace, Yami mobile application, and Yami web services are all part of the Yami Platform.
e. “Yami Services” refers to the Yami Platform’s services.
f. “Marketplace Orders” refers to orders for Merchant Products placed through the Yami Platform by Customers.
g. “Merchant” refers to a restaurant or other business that has accepted to use the Yami Services.
h. The “Merchant Portal” is an online website and mobile application accessible at http://www.yami365.com/merchant/, where Merchant can and should examine and confirm its transactions, fees and charges, and account on the Yami platform on a regular basis.
i. All products offered for dine-in, pickup, or Merchant Delivery orders at Merchant Stores are referred to as “Merchant Products.”
j. “Merchant Stores” refers to Merchant restaurant locations that engage in the Yami Services, including Merchant Stores owned and operated by I Merchant or its affiliates, and/or (ii) Merchant or its affiliates’ Franchisees.
k. “Marketplace Term” refers to the conditions of the Yami Platform agreement between Yami and Merchant.
l. “Dine-in Orders” refers to orders for Merchant Products placed by Customers through the Yami Platform for dine-in at Merchant Stores.
m. “Dine-in Program” indicates that customers can use the Yami Platform to see, search for, and order Merchant Products for dine-in at Merchant Stores.
n. “Pickup Orders” refers to orders for Merchant Products placed through the Yami Platform for consumer pickup.
o. “Pickup Program” indicates that customers can use the Yami Platform to see, search for Merchant menus, and place orders for Merchant Products to be picked up by the customer.
p. “Merchant Delivery” refers to the Merchant’s delivery service.
q. A Marketplace Order, a Dine-in Order, a Pickup Order, or a Merchant Delivery Order, as appropriate, is referred to as an “Order.”
r. “Order Equipment” refers to any equipment that Yami reasonably requires for Merchant to receive and process Orders, such as a tablet, fax machine, or other automated, electronic method of accepting Orders.
s. The price of the Merchant Product as displayed on the Yami Platform is referred to as “pricing.”
t. “Credit Processing Cost” refers to the fee charged by Yami for providing online payment method(s) for Customers to pay for Orders placed on the Yami platform. This includes, but is not limited to, credit card, debit card, prepaid card, gift card, store credit, Apple Pay, Google Pay, Samsung Pay, Afterpay, zipPay, PayPal, Amazon Pay, AliPay, WeChat Pay, digital currency, Bitcoin, direct debit, bank transfer, and other methods.
u. “Yami Notification Fee” refers to the fee Yami charges for voice, text, phone, or other electronic communication.
v. “Commission Rate” refers to the fees levied by Yami in exchange for advertising and featuring the Merchant and Merchant Store(s) on the Yami Platform, which are calculated as a percentage of pre-tax revenues transacted on the Yami Platform.
w. “Schedule for Later Order” refers to an Order that will be completed at a specific time later that day or on a later date.
x. “Yami Data” refers to any information that Yami gives or makes available to the Merchant via the Yami Platform, including, but not limited to, Personal Information.
y. “Personal Information” means any information exchanged under this Agreement that: I identify or can be used to identify an individual (including, but not limited to, names, telephone numbers, addresses, signatures, email addresses, or other unique identifiers); or (ii) can reasonably be used to authenticate an individual (including, but not limited to, name, contact information, precise location, or other unique identifiers).
z. “Terms” refers to the terms and conditions set out herein.
2. The Relationship Between the Parties
As indicated in these Yami Platform Terms, Yami provides the Yami Marketplace through web-based technology that connects Merchants and Customers. On advance written notice to Merchant, Yami may list Merchant on the Yami Marketplace at any time, subject to the Commission Rate(s) set forth in the Sign-Up Sheet. Yami is neither a merchant, a seller of goods, or a delivery service; it is an internet connection platform. Merchant and Yami acknowledge that they are separate legal persons whose connection is controlled by the Sign-Up Sheet, these Terms, and any other terms agreed to by the Parties. Nothing in the Parties’ agreements, relationships, or transactions should be regarded as creating or implying an agency, partnership, fiduciary, or joint venture relationship between Yami and Merchant (or Merchant’s employees, representatives, or locations), or Yami and Customers. Unless otherwise specified in the Sign-Up Sheet, these Terms, and any other applicable terms between the Parties, each Party is liable for its own costs, profits, and losses.
3. Core Responsibilities of Yami Marketplace
Yami and Merchant have the following obligations throughout the Marketplace Term for Merchants who have accepted to participate in the Yami Marketplace:
a. Yami’s Essential Responsibilities Yami will, as soon as possible:
i. Pay the Merchant as agreed by the parties, deducting the applicable Commission Rate, Credit Processing Fee, Yami Notification Fee, marketing fees (for identifiable orders), subscription fees, Activation Fees, and any other fees (on case-by-case basis, as may be adjusted by Yami as required by any applicable statute, regulation, executive order, or other legal requirements that is either temporary or permanent in nature).
b. Core Merchant Responsibilities In a timely manner, the merchant will:
i. Provide Yami with the Merchant’s in-store or take-out menu, as well as the price of each item on the menu after all necessary taxes have been deducted.
ii. Ensure that the pricing of Merchant Products on the Yami Platform is the same as, or lower than, the price on the in-store or take-out menu after the inclusion of any relevant taxes (during the discounted period).
iii. Keep an eye on the Yami Platform for modifications to the Merchant’s shop information and menu, and make timely revisions via the Merchant Portal to reflect the most up-to-date products, pricing, and other information, or alert Yami in writing of any errors or changes.
iv. Accept all Marketplace Orders from Yami that are now on the Merchant’s menu.
v. From Yami, confirm all Marketplace Orders.
vi. Prepare the Merchant Products for each Order for dine-in, customer pickup, or Merchant delivery at the scheduled time.
vii. Complete the Marketplace Orders in the sequence they were received.
viii. Notify Yami of any changes to the Merchant Products’ pricing, availability, description, or other attributes.
ix. Notify Yami of Merchant’s days and hours of operation, and remain open for business on Yami on the same days and hours as Merchant’s in-store business; notify Yami of any changes to Merchant’s hours of operation on holidays; and notify Yami if Merchant closes earlier or plans to close earlier than Merchant’s standard hours of operation.
x. Immediately notify all Merchant shop employees of the relationship with Yami after this Agreement is signed.
Subject to Section 15(b), supply the same utensils, napkins, bags, and other materials that Merchant would ordinarily provide in a standard dine-in, pickup, or delivery order (i).
xii. Review and confirm transactions, fees, and charges on Orders on a regular basis using the Merchant Portal, and promptly notify Yami of any abnormalities or discrepancies.
4. Core Responsibilities of the Pickup Program
Merchants who have decided to participate in the Pickup Program will have the same responsibilities as those listed in Section 3(b)(i) during the Pickup Program (xii). Furthermore, Merchant must ensure that the pricing of the same Merchant Product for pickup (a) in-store and (b) on any other third-party food ordering and/or delivery platform is not higher under the Pickup Program. On Pickup Orders placed by Customers under the Pickup Program, Yami will apply the Pickup Commission Rate set forth in this Agreement.
5. Core Responsibilities of the Dine-In Program
Merchants who have agreed to participate in the Dine-In Program will have the same duties as those listed in Section 3(b)(i) during the Dine-In Program (xii). Furthermore, Merchant must ensure that the pricing of the same Merchant Product for dine-in (a) in-store and (b) orders on any other third-party food ordering and/or delivery platform is not higher than the pricing of the same Merchant Product for dine-in (a) in-store and (b) orders on any other third-party food ordering and/or delivery platform. The Dine-In Commission Rate specified in this Agreement shall be used by Yami.
6. Core Responsibilities of the Merchant Delivery Program
Merchants that have decided to engage in the Merchant Delivery Program will have the same duties as those listed in Section 3(b)(i) during the Merchant Delivery Program (xii). Furthermore, Merchant shall ensure that the pricing of the same Merchant Product for delivery orders placed (a) over the phone and (b) on any other third-party food ordering and/or delivery platform is not higher than the pricing of the same Merchant Product for delivery orders placed on any other third-party food ordering and/or delivery platform. On Merchant Delivery Orders placed by Customers under the Merchant Delivery Program, Yami will apply the Merchant Delivery Commission Rate set out in this Agreement.
7. Refunds and reorders
a. Refunds for Marketplace Orders. If Yami must offer a refund, credit, or re-order for a Customer’s Order, Merchant will prepare the food to the same standard and specifications as the original Order (in the case of a re-order) and bear the full expense of the refund, credit, or re-order, as applicable.
b. Refunds for dine-in orders. The Merchant shall be solely responsible for any customer difficulties or complaints. If Yami must offer a refund, credit, or re-order for a Customer’s Order, Merchant will prepare the food to the same standard and specifications as the original Order (in the case of a re-order) and bear the full expense of such refund, credit, or re-order.
c. Order Pickup Refunds. The Merchant shall be solely responsible for any customer difficulties or complaints. If Yami must offer a refund, credit, or re-order for a Customer’s Order, Merchant will prepare the food to the same standard and specifications as the original Order (in the case of a re-order) and bear the full expense of such refund, credit, or re-order.
d. Refunds for Merchant Delivery Orders. The Merchant shall be solely responsible for any customer difficulties or complaints. Merchant understands and agrees that Yami’s role is limited to facilitating the delivery of Merchant Product(s) to Customers. If Yami needs to offer a refund, credit, or re-order for a Customer’s Order, Merchant will prepare the food to the same standard and specifications as the original Order (in the case of a re-order) and bear the full expense of that refund, credit, delivery, or re-order in its sole reasonable discretion.
8. Payment, Fees, Title, and Taxes
The following is how payment, fees, and taxes should be handled:
a. Each week, on a consistent day of the week, Yami will pay for Marketplace, dine-in, pickup, and Merchant Delivery Orders fulfilled by Merchant, subject to change with no less than 10 days’ notice to Merchant by email or service notification. Yami may deduct Yami’s Commission Rate, marketing fees (for identifiable orders), Activation Fees, subscription fees, Order Equipment Fees, Credit Processing Fee, Yami Notification Fee, and any other fees that Yami may tell Merchant with at least 7 days advance written notice from such payment. At Yami’s exclusive discretion, Merchant acknowledges that Yami may charge the Customer fees, including but not limited to a Service Fee, Surcharge Fee, Small Order Fee, and Delivery Fee. On the sale of Merchant Products, Merchant is responsible for all taxes, duties, and other governmental charges, as well as remitting such taxes, duties, and other governmental charges to the proper authorities. If a menu item’s price is raised by the Merchant, Yami is not required to remit the higher price to the Merchant until 3 business days after the Merchant sends Yami written notice of the price change.
b. Merchant agrees to review and confirm its transactions, fees and charges on Orders and invoices via the Merchant Portal on a regular basis, and to promptly communicate with Yami in writing if any inaccuracies are discovered, so that Yami has the opportunity to promptly resolve any issues, which Yami and Merchant agree is in both parties’ best interests and their commercial relationship. Within 15 days following the transaction, fee, charge, or order, the merchant commits to notify any disagreement, anomaly, or issue with the transaction, fee, charge, or purchase. Merchant is presumed to have agreed to and approved each transaction, fee, charge, and order, and to have waived any claim or objection if Merchant does not communicate any claim or objection to Yami regarding such transaction, fee, charge, or order during the 15-day period.
c. Merchant agrees that Merchant retains rights to the goods or items provided through the Yami Platform until the goods are delivered to the Customer (for dine-in, pickup, or Merchant Delivery), at which point title goes to the Customer. Merchant accepts that Yami does not hold title to any items or products that Merchant prepares or provides through the Yami Platform, nor does it acquire any ownership interest in them.
9. Payment Processing
Stripe provides payment processing services to Yami Platform merchants, which are governed by the Stripe Connected Account Agreement and Stripe Services Agreement. By accepting these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as well as any future changes made by Stripe. Merchant agrees to provide Yami accurate and complete information about Merchant’s representative and its business as a condition of Yami enabling payment processing services through Stripe, and Merchant authorizes Yami to share it, as well as transaction information related to Merchant’s use of Stripe’s payment processing services. Stripe has been accredited to PCI Service Provider Level 1 after being audited by a PCI-certified auditor.
10. Merchant Content and Trademark; Menu Item Photographs
a. During the Marketplace Term, Merchant certifies that it has sufficient rights to the Merchant Content and agrees to grant Yami a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use the Merchant Content for the provision of services to Merchant, including listing Merchant as a merchant on the Yami Platform, referencing Merchant as a Yami partner, and other similar purposes. Menus, pictures (either provided by Merchant or discovered on Merchant’s website), trademarks, logos, and other items provided by Merchant to Yami are all examples of “Merchant Content” as used herein.
b. If photographs of Merchant’s menu items are unavailable or do not meet Yami’s requirements, Merchant agrees that Yami may: I hire a professional photographer to photograph Merchant’s menu items, (ii) improve the quality of Merchant’s existing photographs, or (iii) use stock photos of the menu item, and display such photographs on the Yami Platform.
11. Confidential Information
a. “Confidential Information” refers to any confidential or proprietary business, technical, or financial information or materials disclosed to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in writing, and includes the Terms of this Agreement. Without limiting the preceding, Yami Data refers to Yami’s Confidential Information.
b. Confidential Information does not include information that: I was or becomes public domain without the Receiving Party’s fault; (ii) was or is received by the Receiving Party without restriction on use or disclosure prior to the Disclosing Party disclosing such information to the Receiving Party in connection with this Agreement; (iii) was or is received by the Receiving Party without restriction on use or disclosure prior to the Disclosing Party disclosing such information to the Receiving Party in
c. The Receiving Party shall: I not access or use Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement; (ii) not disclose or permit access to Confidential Information to anyone other than its or any of its employees, officers, directors, consultants, agents, or independent contractors; and (iii) not disclose or permit access to Confidential Information to anyone other than its or any of its employees, officers, directors, consultants, agents, or independent contractors
d. If applicable Law requires the Receiving Party to disclose any Confidential Information, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement, to the extent permitted by applicable Law, so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c), and provide reasonable assistance to the Disclosing Party.
12. Data Security and Privacy
a. General. Merchant acknowledges and agrees that: I Yami owns all rights, title, and interest in Yami data, and that Yami will access, collect, store, retain, transfer, use, disclose, or otherwise process Yami Data, including Personal Information (including information about Merchant’s franchisees provided by Merchant to Yami under this Agreement), in accordance with the Yami Data Policy. Except as required to perform its obligations under this Agreement and in compliance with the Privacy Act 1988, Merchant agrees not to access, collect, store, maintain, transfer, use, disclose, or otherwise process Yami Data, including but not limited to Personal Information, in any way. Merchant should use suitable organizational, physical, and technical precautions to keep Yami Data secure from unauthorized access and maintain the accuracy and integrity of Yami Data in Merchant’s possession or control. Merchant will immediately alert Yami of any unauthorized access to Yami Data, consult and cooperate with investigations and potentially required notices, and give any information reasonably asked by Yami. Merchant agrees to cooperate with Yami’s reasonable requests for security methods, protocols, or access credentials, and will be held liable for any damages resulting from Merchant’s refusal to do so. Merchant will not allow any third parties to use the Yami Platform, and will be liable for any losses incurred as a result of sharing Merchant’s login credentials with unauthorized third parties or allowing unauthorized access to Merchant’s account in any other way. Merchant will not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the Yami Platform’s source code; damage, destroy, or impede the services provided through the Yami Platform; transmit injurious code; or circumvent or breach any security protection on the Yami Platform. When a Merchant party learns of an “Eligible Data Breach” (as defined in the Privacy Act 1988) involving Personal Information in its possession or control received from Yami, it must quickly notify Yami and participate with the breach investigation.
c. API for delivery. Merchant is granted a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, limited, fully paid-up license to access the Delivery API solely for the purpose of transmitting information to support the Yami 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 Delivery API; (ii) circumvent or disable any security or other technological features or measures, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, decompile, or otherwise attempt to reverse engineer, decompile, or otherwise attempt to reverse engineer, decomp Each Party agrees not to take any activity with the goal of introducing viruses, worms, flaws, Trojan horses, malware, or any other damaging item to the other Party’s systems, products, or services (including the Delivery API).
13. Termination
Merchant may terminate this Agreement at any time for any reason by providing Yami with seven (7) days prior writing notice. Yami may terminate this Agreement or any promotion under this Agreement at any time for any reason by providing written notice to Merchant. For written notice, an email will sufficient. Neither Merchant nor Yami will be required to pay any fees in connection with a termination by either party, nor will either party be liable to the other for any damages, loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases, or commitments made by either Merchant or Yami as a result of the termination of this Agreement.
14. Modifications
Yami has the right, at its sole discretion, to update, suspend, or discontinue the Yami Platform (including, without limitation, the availability of any feature or content). If Yami deems that a Merchant Product or Merchant Store could expose Yami to undue regulatory, health, or safety hazards, or other responsibility, Yami may remove it from the Yami Platform at its sole discretion. Yami reserves the right to change these Terms at any moment in its sole discretion or to comply with applicable laws or regulations. The modifications are not retroactive, and the most recent version of the Terms can be seen on the Yami website or applications. Any changes will be communicated to Merchants via a service notification or an email sent to the email address linked with their account. Merchant agrees to be bound by the new Terms by continuing to use or use the Services after the amendments take effect. If Merchant does not agree to the new Terms, this Agreement may be terminated in accordance with Section 13.
15. Additional Responsibilities; Warranty; Representations and Warranties Disclaimer
a. Each party represents and warrants that: i. 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; and ii. 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.
ii. In performing this Agreement, it will comply with all applicable laws and regulations, including, but not limited to, laws relating to I data protection and privacy laws, and (ii) third-party intellectual property and other proprietary rights.
b. Merchant also represents and warrants that: i. It will adhere to all applicable laws, rules, standards, and regulations relating to licenses, health, food packaging and accessory items (including, but not limited to, food ware, dinnerware, plasticware, and other disposable restaurant supplies), and food safety and sanitation.
ii. It will and has informed Yami of any applicable consumer-facing warnings, charges, opt-in procedures, and instructions related with Merchant Product(s), and will continue to do so in the future.
iii. It will list common allergies in any Yami Platform-listed Merchant’s menu items.
iv. On the Yami Platform, it will only offer menu items or products for sale, as well as precise product descriptions and prices.
v. It will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s Yami Platform menus or accept Merchant Delivery Orders of any age-restricted products through the Yami Platform without first entering into a separate agreement with Yami, subject to compliance with applicable laws in the state in which such products will be sold.
vi. It will not reveal any Customer or Yami Data information to a third party (except as required by law or pursuant to a court order).
vii. It will follow Yami’s published guidelines for any content Merchant submits on the Yami Platform or Merchant Portal.
d. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Yami HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE Yami Platform, THE Delivery API, EQUIPMENT, OR Yami Services, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF SATISFACT NEITHER PART OF THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY RIGHT OR REMEDY, GUARANTEE, WARRANTY, OR OTHER TEM OR CONDITION IMPLIED OR IMPOSED BY ANY LEGISLATION THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED. IF ANY GUARANTEE, WARRANTY, TERM, OR CONDITION IN RELATION TO THIS AGREEMENT IS IMPLIED OR IMPOSED UNDER THE AUSTRALIAN 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- Merchant acknowledges that the Platform’s operation may be interrupted from time to time for technical or other reasons, and that it may or may not continue uninterrupted or without technical or other errors, and that, subject to the Non-Excludable Provisions, Yami shall not be liable to Merchant or others for any such interruptions, errors, or problems, including the Yami Platform’s outright discontinuation. Both parties agree that neither party expects or has been assured of future business, or of receiving an expected amount of profit, or that any investment made by a party will be recovered or recouped as a result of this Agreement.
16. Indemnification
a. Each party (the “Indemnifying Party”) will defend, indemnify, and hold the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) harmless from and against any and all claims, damages, losses, and expenses (including reasonable attorney’s fees (collectively “Losses”) with respect to any third-party claim. Merchant will also defend, indemnify, and hold Yami harmless from any and all Losses arising from any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation relating to Merchant Product(s), except to the extent that such Losses were directly caused by Yami’s gross negligence or willful misconduct. In each case, the Indemnified Party must provide the Indemnifying Party with (a) prompt notice of any claims so that the Indemnifying Party is not prejudiced by any delay in notification, (b) the option to assume sole control of the 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 defend or settle such a claim with counsel of its choosing and at its own expense; but the Indemnifying Party may not engage into any settlement arrangement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written approval. Yami assumes no liability, and shall have no liability, for any infringement claim under Section 15(c) based on Merchant’s access to and/or use of the Yami Platform following notice of such infringement claim; Merchant’s unauthorized modification of the Yami Platform; or Merchant’s combination of the Yami Platform with third-party programs, services, data, hardware, or other materials.
17. Liability Limitation
UNPAID AMOUNTS OWED TO Yami BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VI
a. UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS OF PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY (INCLUDING NE (INCLUDING NEGLIGENCE). TO THE EXTENT PERMITTED BY LAW, THE FOREGOING DISCLAIMER SHALL NOT APPLY.
18. Insurance
Each party will maintain adequate insurance in amounts not less than those required by law or that are typical in practice in such party’s business during the length of the Agreement and for one year beyond. Each party will provide the other with current proof of coverage upon request. Without thirty (30) days prior written notice, such insurance cannot be discontinued or considerably reduced. In no event shall the terms of any insurance coverage be construed as limiting a party’s responsibility under this Agreement.
19. Alternative Dispute Resolution
PLEASE READ THE NEXT SECTION VERY CAREFULLY. IT REQUIRES YOU TO ARBITRATE ANY DISPUTES WITH Yami AND LIMITS HOW YOU CAN SEEK RELIEF. THE “ARBITRATION AGREEMENT” IS DEFINED IN SECTION 19 OF THIS AGREEMENT.
a. The Arbitration Agreement’s Scope. Any dispute, controversy, or claim arising out of, relating to, or in connection with this contract, including its breach, termination, or validity, shall be resolved by binding arbitration rather than in court, except that I you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and proceeds only on an individual (non-class, non-representative) basis (such as trademarks, trade names, trade dress, domain names, trade secrets, copyrights, and patents). Because Yami and Merchant are both business entities that benefit from efficient and confidential settlement, they agree that this Arbitration Agreement will apply to all disputes originating from or relating to the subject matter of this Agreement, or the parties’ and their personnel’s relationship. Not only the parties, but also their affiliates, owners, officers, directors, managers, and employees, will be bound by and enforceable under this Arbitration Agreement. This Arbitration Agreement shall apply to all claims that arose or were brought prior to the Effective Date of this Agreement, without limitation.
b. Arbitration Procedures and Venue. To launch an arbitration procedure, you must send a letter to Yami’s registered agent requesting arbitration along with a statement of your claim. The arbitration shall be conducted by the Australian Disputes Centre (“ADC”) in accordance with the terms of this Agreement and the ADC’s then-current arbitration rules. The arbitration rules of the Australian Disputes Centre may be found at https://disputescentre.com.au/adc-rules-for-domestic-arbitration/. ADC’s guidelines shall regulate the payment of all filing, administration, and arbitration fees. The parties will choose an alternate arbitral forum if ADC is not available to arbitrate. The arbitration can take place over the phone, via video conference, via written submission, or in person in your own country or at a mutually agreed-upon venue.
c. Arbitrator’s Authority 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, shall be resolved solely by the arbitrator, not by any federal, state, or local court or agency. All disagreements over the payment of arbitrator or arbitration-organization fees, including the timing of such payments and sanctions for non-payment, must be resolved by an arbitrator rather than a court. The arbitration will determine your and Yami’s rights and liabilities, if any. The arbitration procedure will not be merged or consolidated with any other proceedings or parties. The arbitrator will have the authority to: I grant motions dismissing all or part of any claim or dispute; (ii) award monetary damages and grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement; and (iii) award monetary damages and grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including Arbitration Agreement). The arbitrator will produce a written statement of decision outlining the key findings and conclusions that will be used to make any judgment (or decision not to make an award), as well as the damages awarded. The arbitrator must adhere to all applicable laws. The arbitrator has the same ability as a judge in a court of law to grant relief on an individual basis. You and Yami are both bound by the arbitrator’s judgment.
d. The right to a jury trial is waived. YOU AND Yami AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND BE TRIED BY A JUDGE OR JURY. With the exception of Section 19, you and Yami have chosen to have your claims and disputes settled through arbitration. Arbitration does not have a judge or jury, and court review of an arbitration ruling is limited.
e. Severability; Waiver of Class or Consolidated Actions YOU AND Yami AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED INDIVIDUALLY, NOT IN CLASS. MORE THAN ONE MERCHANT’S CLAIMS CAN’T BE ARBITRATED OR LITIGATED AT THE SAME TIME, NOR CAN THEY BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER CUSTOMER OR USER. If this waiver of class or consolidated actions is found to be unlawful or unenforceable with respect to a specific claim or dispute, neither you nor Yami are entitled to have that claim or disagreement arbitrated. Instead, as set forth in Section 20, all such claims and disputes will be addressed in court, and all other provisions of this Section 19 (Dispute Resolution) will continue in effect. If any section of this Section 19 is found to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed, and the validity of the remainder of this Section 19 shall not be affected. Nothing in this section prevents you or Yami from taking part in a class-wide claim settlement.
f. Opt-out. If you previously accepted to a version of Yami’s Terms of Service and did not validly opt-out of arbitration, Yami’s modifications to these Terms of Service do not provide a new opportunity to opt-out of the Arbitration Agreement. Merchants who legitimately opted out of the Arbitration Agreement in a previous version of the Terms of Service will continue to be honored by Yami. You have the option of opting out of this Arbitration Agreement, in which case neither you nor Yami will be forced to arbitrate as a result of this Agreement. You must notify Yami in writing no later than 30 days following your first Order on the Platform if you wish to opt-out. Your notice must contain your name and address, your Yami username (if applicable), the email address you used to create your Yami account (if applicable), and a clear declaration that you do not wish to be bound by this Arbitration Agreement. The letter can only opt out one merchant at a time, and any attempt to opt out numerous merchants would be ineffective. No Merchant (or his or her agent or representative) may opt out other people on their behalf. All other elements of this Agreement will continue to be binding on you even if you opt out of the Arbitration Agreement. If you choose to opt out of this Arbitration Agreement, it will have no effect on any other arbitration agreements you may have signed with Yami in the past or in the future.
g. Survival. If your relationship with Yami ends, this Arbitration Agreement will continue to apply.
h. Modification. Yami acknowledges that any future material changes to this Arbitration Agreement, notwithstanding any provision in the Agreement to the contrary, will not apply to any individual claim(s) about which you have already given Yami notice.
20. Waiver of Class Action Litigation
Separate and apart from the Mutual Arbitration Provision set forth in Section 19, Merchant agrees that any proceeding to court for any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Agreement or for any other reason, will be conducted solely on an individual basis, and Merchant agrees not to sue the other party. Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding unless all parties to that proceeding have given their prior written consent. If any portion or all of this Litigation Class Action Waiver is found to be unenforceable, unconscionable, void, or voidable by a court of competent jurisdiction, the balance of this Agreement will remain in full force and effect.
21. Franchisees
Franchisees who operate a branded restaurant or store concept licensed by Merchant are eligible to participate in the Program under the terms and conditions of this Agreement if they: I comply with their franchise agreement; and (ii) enter into an agreement in substantially the same form as the Supplemental Agreement provided by Yami to the Franchisee. All Merchant owned branded restaurant(s) and store concept(s) shall be included and subject to the Terms as set forth in this Agreement unless the parties mutually agree and put it in writing.
22. Yami’s communications
Merchant agrees to accept and receive communications from Yami and its related organizations, such as emails, text messages, phone calls, and push notifications (collectively, “Yami Notifications”), to the mobile phone number Merchant submitted to Yami. Merchant understands that Yami and its related firms may send Merchant communications created by automatic telephone dialing systems and/or pre-recorded messages.
23. Attorneys’ Fees
The successful party in any legal action to enforce the Terms of this Agreement shall be entitled to receive reasonable lawyers’ fees and costs from the opposing party.
24. General Requirements
The Sign-Up Sheet between Merchant and Yami, as well as these Terms, form an integrated Agreement between the parties that replaces all earlier oral and written agreements and communications between the parties with respect to the subject matter covered hereof. The rights and duties set forth in these Terms that, by their nature or stated terms, should or do survive or continue beyond the termination or expiration of these Terms, will do so. This Agreement is governed by and interpreted in accordance with the laws of the Australian Capital Territory, Australia, without respect to the principles of conflict of laws. The parties hereby consent to exclusive jurisdiction in the courts of the Merchant’s location, save as provided in Section 19 (“Dispute Resolution”). Without Yami’s prior written agreement, Merchant may not assign this Agreement in whole or in part. This Agreement may be freely assigned by Yami. This Agreement binds and benefits each party’s employees, representatives, agents, affiliates, franchisors, franchisees, and authorized successors and assigns, but it does not give any third party any rights or remedies. Under the Parties’ agreements, all notices, requests, consents, and other communications must be in writing and delivered by overnight courier to the addresses listed on the Sign-Up Sheet (or any updated address properly noticed hereunder). If any term of this Agreement is found to be invalid, illegal, or unenforceable for any reason, it will have no effect on the remaining sections of the Agreement, and this Agreement will be construed as if the invalid, illegal, or unenforceable provision had never been.
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