Terms & Conditions
These General Terms and Conditions of eat.ch GmbH, Werdstrasse 21, CH - 8004 Zurich (the «GTC») are an integral part of the Mediation Contract between EAT.ch and the restaurant and together with the Mediation Contract regulate the contractual relationship between the parties conclusively. They replace any previous agreements between EAT.ch and the restaurant.
EAT.ch undertakes to enable the restaurant – primarily through its website www.eat.ch, affiliated websites, applications and platforms (collectively the «website»), its proprietary Just-Connect Technology («JCT»), its order pads, the Partner Centre and other related equipment and software, which may be further developed from time to time (collectively the «product») – the sale of food, beverage and other goods to ordering customers by delivery or for collection on site (the «service») according to the terms and conditions set out in the Mediation Contract and in these Terms and Conditions.
2.1. Product care: The restaurant undertakes to use, store and maintain the Order Pad with reasonable care and, in particular, to set up and maintain the Order Pad in such a way that it is possible to receive an Internet signal (WiFi or dedicated line) and that orders received are processed immediately. The built-in GPRS solution is considered a fallback solution in the event of a temporary failure of the Internet connection. The restaurant alone shall bear its expenses for telecommunications (WiFi, landline phone, mobile phone hardware, subscription and operational costs) as well as expenses for orders via GPRS/3G/4G. Any such expenses charged by the telecommunications provider EAT.ch, in particular in connection with the use of the GPRS solution, shall be passed on by EAT.ch to the restaurant and shall be refunded by this EAT.ch.
2.2. Product issues: The restaurant must notify EAT.ch immediately of any malfunctions of the product.
2.3. Product repair/replacement: EAT.ch undertakes to repair or replace the product as quickly as possible at the expense of EAT.ch in the event of malfunctions – unless EAT.ch is solely convinced that the malfunction is the result of improper use, unauthorised alteration or damage by the restaurant, or the performance of repairs by third parties (i.e. not by EAT.ch or its authorised representatives) («restaurant product damage»), in which case EAT.ch shall charge the restaurant a reasonable fee for the repair of the malfunctioning product or the cost of a replacement product according to the applicable EAT.ch prices.
2.4. Product upgrades: EAT.ch may update or modify the product at any time at its sole discretion and without the consent of the restaurant.
2.5. Product ownership: The product and all its components shall remain the property of EAT.ch at all times. Upon termination of the brokerage agreement, the restaurant must return the product to EAT.ch in working order and refrain from any further use.
2.6. Use of the Partner Centre: On the one hand, various information is made available by EAT.ch to the restaurant in the Partner Centre, such as the turnover of the current month (dashboard), the orders of the last 45 days (order history), an evaluation of the orders of the last 14 days (analytics), and the statement and invoice in accordance with section 7 of these GTC (invoices). On the other hand, in the Partner Centre the restaurant can and must manage its menu (menu), start and end promotions (restaurant marketing), manage its delivery areas (delivery areas), as well as manage deviations from the standard opening hours on specific days (opening hours). The restaurant is obliged to check the Partner Centre on an ongoing basis and to keep it up-to-date. The restaurant is fully responsible for its activities and for the information it enters into the Partner Centre. EAT.ch may edit the functions of the Partner Centre at any time at its own discretion and without the consent of the restaurant.
3. Restaurant websites and links
3.1. EAT.ch microsite for restaurants
3.1.1. The restaurant agrees that EAT.ch is entitled, but not obliged, to create a website (free of charge for the restaurant) related to the restaurant under a domain name of EAT.ch's choice, often using the company name, name, brand name or other designation of the restaurant (the «restaurant microsite»).
3.1.2. The microsite of the restaurant will: (i) link to the EAT.ch website and allow customers to place orders for food, beverages and goods of the restaurant via the EAT.ch website; and (ii) display and use any material provided by the restaurant to EAT.ch under the Mediation Contract (including company name, name, brand, logo or other designation and menu of the restaurant).
3.1.3. With the exception of the restaurant's company name, name, trademark, logo or other designation and menu of the restaurant, all intellectual property rights (as defined in section 12) in the restaurant's microsite shall remain the property of EAT.ch.
3.2. Restaurant's own website
3.2.1. EAT.ch may allow the restaurant to link its own website (the «restaurant's own website») to the EAT.ch website (the «EAT.ch link»).
3.2.2. The EAT.ch link will: (i) link to the EAT.ch website and allow customers to place orders for food, drink or other restaurant goods via the EAT.ch website; and (ii) incorporate the EAT.ch logo (provided by EAT.ch).
3.2.3. The restaurant warrants to EAT.ch that it will permanently delete the EAT.ch link (including the EAT.ch logo) on the restaurant's own website immediately upon receipt of a request from EAT.ch and in any case after termination of the Mediation Contract and that it will refrain from any further use of the EAT.ch link and logo.
3.3. Orders via the restaurant's microsite and via the restaurant's own websites: For the sake of clarity, it should be noted that all orders placed by customers for the restaurant via the restaurant's microsite or via the EAT.ch link shall be deemed «orders» within the meaning of the Mediation Contract and shall be added to the gross order value pursuant to section 6.2 of these GTC.
4.1. Execution of orders: The restaurant undertakes to accept, process, prepare and deliver orders placed by customers via the website and received from EAT.ch using the product, by fax, phone or email («orders») with the greatest possible care and in accordance with the standards applicable in the restaurant sector. Prepared, processed and delivered food, drinks and other goods must correspond to the information on the menu and must take into account the comments made by the customer when placing the order (in particular with regard to ingredients and possible allergies).
4.2. Minimum order values for orders that are to be delivered: The minimum order value applies to orders that are to be delivered, whereas no minimum order value applies to orders collected on the premise. The minimum order value is CHF 10, provided that the location of the restaurant either has the same postal code as the delivery address or is at a maximum of 10 minutes distance from the delivery address. The minimum order value is a maximum of CHF 60, provided that the location of the restaurant has a different postal code than the delivery address or that it is at more than 10 minutes distance from the delivery address.
4.3. Rejecting orders: The restaurant shall use its best endeavours to accept all orders, unless the minimum order value for orders that are to be delivered has not been reached, as set out in section 4.2 of these GTC.
4.4. Payment of orders – accepting card orders: The restaurant undertakes at all times to give customers the possibility to pay for orders by credit card or debit card («card orders») or, subject to section 4.5, in cash («cash orders»). EAT.ch reserves the right, at its own discretion and without the restaurant's consent, to activate new payment methods or deactivate existing ones at any time.
4.5. Payment of orders – orders made by card only: If the total gross order value of the card orders during the first 120 days term of the Mediation Contract does not exceed the total value of the obligations owed by the restaurant to EAT.ch (including the obligations from the restaurant costs for cash orders), the restaurant agrees that EAT.ch may, at its discretion, only accept card orders on behalf of the restaurant until all such obligations have been settled.
4.6. Delivery of orders – alcohol etc.: If an order contains alcohol or other goods that are subject to legal age restrictions, the restaurant must request proof of age from the customer upon delivery (in accordance with the relevant laws). The restaurant commits to taking all other precautions necessary to ensure that the customer has reached the legal minimum age for the purchase of alcohol and that delivery is made within the limits permitted for the sale of alcohol. If EAT.ch is responsible for the delivery, EAT.ch is obliged to take these precautions with the customer.
4.7. Receipts: The restaurant undertakes to issue to the customer, upon request, a formal receipt (and, if applicable, a VAT certificate) for the placed order.
4.8. Renewed delivery, price refunds and reductions in the event of faulty order delivery: The restaurant undertakes to fulfil requests for renewed delivery or price refunds or to grant an appropriate price reduction to the best of its ability for orders placed by a customer or by EAT.ch on behalf of the customer. If the restaurant or EAT.ch grant such a renewed delivery, price refund or reasonable price reduction, this shall not affect the commission owed by the restaurant to EAT.ch, which shall be owed based on the gross order value in accordance with section 6.2. of these GTC for the error-free original order.
5. Obligations concerning the menu and information about the restaurant
5.1. The information provided to EAT.ch including the menu: The restaurant is obliged to make its menu available to EAT.ch in German, English and French (in all three language versions the «menu»). The restaurant is responsible for ensuring that the information contained in the menu is always correct, complete, current and in compliance with all applicable laws and regulations in all three language versions (mainly the provisions of food legislation concerning consumer information on ingredients, in particular but not limited to those which may cause allergic reactions and those which must include the origin of the meat and fish offered on the menu («ingredients, allergens and origin»), and for keeping it up-to-date. The restaurant is then obliged to check the adapted menu in all three language versions immediately after it has been published by EAT.ch and to notify EAT.ch immediately of any necessary corrections.
5.2. Responsibility for content, allergen and origin information: It is the sole responsibility of the restaurant to ensure that the menus displayed on EAT.ch are always correct, complete, current and in compliance with the law, and assumes full liability for any failure to comply with these obligations. The safety of the customer comes first. EAT.ch is not in a position and not obliged to check compliance. If EAT.ch has indications that the restaurant's content, allergen and origin information is incorrect or defective, EAT.ch shall be entitled to take the restaurant offline with immediate effect in accordance with section 15 of these GTC and/or to terminate the Mediation Contract with immediate effect. EAT.ch disclaims all liability for incorrect, incomplete, out-of-date and non-compliant content, allergen and origin information. The restaurant shall indemnify EAT.ch against any claims by customers and authorities as a result of non-performance or improper performance of these obligations, including claims for damages, court and attorney fees, fines and other expenses.
5.3. Availability by phone: The restaurant undertakes to provide customers by phone with information on the offered food at any time during opening hours, in particular on ingredients, allergens and origin of meat and fish.
5.4. Price indications on the menu: The restaurant undertakes to ensure that the menu prices (including delivery costs) it provides for publication on the website are identical to the prices it offers in its premises (whether these prices are listed on menus used in the premises or not) and undertakes not to offer discounts to customers and not to redeem coupons that are not also offered on the website.
5.5. Restaurant updates and errors on the restaurant's website and on the restaurant microsite: The restaurant is obliged to ensure and continuously check that the information published on the restaurant's website and microsite (including the menu in all three language versions) is correct, complete, up-to-date and in compliance with the law. The restaurant must immediately report to EAT.ch any errors in the menu information or other information about the restaurant («website profile») and any changes to the menu or website profile.
5.6. Changes and costs: EAT.ch undertakes to update or modify the contents of the restaurant information published on the restaurant's website and restaurant microsite as soon as possible after receiving a written request from the restaurant to correct errors or make minor changes. EAT.ch reserves the right to charge the restaurant an administrative fee for such changes.
5.7. Opening hours: The restaurant must inform EAT.ch of its operating hours (the «opening hours») and any changes thereto. If the opening hours are indicated on the menu, EAT.ch may treat them as opening hours unless the restaurant informs EAT.ch otherwise.
5.8. Offline during opening hours: With the exception of emergencies or previously announced closing times, the duration of which must be announced in writing by the restaurant to EAT.ch, the restaurant must always be online during opening hours and at any time be able to accept orders using the product. In the case of announced closing times, the restaurant must indicate to EAT.ch a date when normal opening hours will resume. EAT.ch reserves the right to charge the restaurant CHF 50 per case if extraordinary closures of the restaurant lead to non-delivery of placed customer orders.
6.1. Compensation in favour of EAT.ch: The restaurant owes EAT.ch the following compensation, plus VAT:
6.1.1. a commission in the amount specified in the Mediation Contract on the gross order value calculated in accordance with section 6.2 of these GTC, the order placed by a customer using the service (plus applicable tax);
6.1.2. an administration fee in the amount specified in the brokerage agreement for orders paid online (plus applicable taxes);
6.1.3. the monthly fee for the Order Pad;
6.1.4. sign-up fee and activation fee according to the Mediation Contract; and
6.1.5. further compensation, if owed in accordance with these GTC, in accordance with sections 2.1, 2.3, 5.5, 5.7, 8.1.2, 9, in case of demand for physical invoices or additional expenses caused by the restaurant.
6.2. Gross order value: The gross order value is the total amount the restaurant charges the customer for an order, including the value of the food, beverages and other goods ordered plus the restaurant's delivery costs (if any) plus applicable taxes.
7. Invoicing and Payment
7.1. Statements: Once a month, EAT.ch will provide a statement of the open invoice amounts for the previous month in the relationship between the restaurant and EAT.ch (a «statement»). The statement includes:
7.1.1. the total gross order value of all orders for the period, broken down into cash orders and card orders; and
7.1.2. all amounts owed by the restaurant to EAT.ch in connection with restaurant costs, the product, or additional expenses to be borne by the restaurant, as well as all other services provided by EAT.ch to the restaurant, for the respective period.
7.2. Invoicing: If EAT.ch owes money to the restaurant according to the statement, EAT.ch will transfer it to the restaurant as soon as possible. If the statement shows that the restaurant owes money to EAT.ch, EAT.ch may invoice the restaurant. Liabilities are due on the date of invoicing and must be paid by the restaurant within 14 days. After the expiry of this period, EAT.ch may charge interest on arrears and unpaid amounts in accordance with section 8.1.
7.3. Card orders: If a customer pays for an order using a credit card or debit card and payment is refused due to errors made by the restaurant in preparing or delivering the order or due to card misuse, the restaurant cannot demand payment from EAT.ch for such orders.
7.4. Disputed statements: If the restaurant does not agree with the statement, it must inform EAT.ch of this within 14 days of receipt of the statement by the restaurant and state in detail the reasons for its disapproval. If the restaurant does not notify EAT.ch of its disapproval within 14 days of receipt of the statement, the respective statement shall be deemed to have been accepted by the restaurant.
7.5. Reimbursements: With the exception of the Order Pad deposit, which is refundable pursuant to Part 1, payments made by the restaurant for the product (including connection fees) are non-refundable.
8.1. Set-off by EAT.ch: If payments owed by the restaurant to EAT.ch are overdue, EAT.ch can set off these arrears against:
8.1.1. all amounts otherwise payable to the restaurant in the next statement; and/or
8.1.2. the amounts received from card orders for the restaurant,
and EAT.ch may charge default interest at the rate of 1% per month on these arrears from the respective payment date until the settlement date or until the amount is credited to the bank account of EAT.ch (the earlier of the last two dates being decisive). The restaurant shall be liable to EAT.ch for all costs incurred by EAT.ch which are settled or collected by EAT.ch in an appropriate manner. EAT.ch may charge these costs in accordance with this clause.
8.2. Set-off by the restaurant: Without the prior written consent of EAT.ch, the restaurant is not entitled to set off payments against alleged claims or claims arising from defects in the product or service.
8.3. Offline: EAT.ch is entitled at any time to take the restaurant offline with immediate effect in accordance with section 15 of these GTC until the arrears have been demonstrably settled.
9. Changes in ownership or bank details
The restaurant must notify EAT.ch in writing before or at least as soon as possible after any change in the ownership of the restaurant or any change in its bank details. Failure to notify EAT.ch may result in EAT.ch depositing money into a bank account controlled by the outgoing owner or into an incorrect bank account. The restaurant undertakes to compensate EAT.ch in full for any damage, loss or claim asserted against EAT.ch by the new owner(s) or otherwise incurred by EAT.ch as a result of the restaurant's failure to notify EAT.ch in a timely manner of changes in accordance with this clause.
10. Restaurant reviews
10.1. General: The restaurant hereby consents to the publication on the website of online customer reviews and comments («reviews») relating to the restaurant or an order. EAT.ch has no obligation to check ratings in advance.
10.2. Deletion: However, EAT.ch is entitled to check reviews and delete reviews that, in its discretion, contain inadmissible, offensive or defamatory content.
10.3. No reviews by the restaurant: The restaurant is forbidden to make reviews on the website, neither about itself nor about third parties.
10.4. Liability: The ratings come from third parties and not from EAT.ch. Any liability on the part of EAT.ch for reviews about the restaurant and/or on the website is hereby excluded.
11. Consents and compliance with Laws
11.1. General: The restaurant confirms and warrants that it has obtained, will obtain and will maintain all necessary consents, licenses, approvals, agreements or authorizations («consents») from all persons and authorities required in connection with the operation of a restaurant, the signing of the Mediation Contract, these Terms and Conditions and the performance of the provisions contained therein.
11.2. Franchise agreements: If the business, name, trademark or logo of the restaurant is or becomes the subject of any license or franchise agreement, the restaurant acknowledges that it has obtained from its licensors or franchisors all consents necessary to use and publish such business, name, trademark or logo on the website and undertakes to indemnify EAT.ch for all damages, losses or claims brought against EAT.ch for failure to obtain such consents thereof.
11.3. Loss of consents: The restaurant undertakes to inform EAT.ch immediately and in writing if one of the consents listed in sections 11.1 or 11.2 is revoked or suspended or if the restaurant can no longer benefit from these consents for other reasons or can no longer rely on these consents.
11.4. Compliance with laws: The restaurant undertakes to comply with all applicable laws and regulations, in particular those relating to health, safety, consumer information and protection, value added tax, data protection and food standards, hygiene and information, and to provide EAT.ch, upon EAT.ch's request, with appropriate evidence of such compliance.
11.5. Taxes: The restaurant is solely responsible for the indication, collection and payment of all taxes applicable to the restaurant.
11.6. On-site inspections: The restaurant agrees that EAT.ch is entitled to inspect the premises of the restaurant following an advance period of notice of at least 24 hours to ensure that the restaurant complies with this section 11, to collect the product in accordance with its property rights referred to in section 2.5, compliance with section 12.1 or for other reasonable reasons.
12. Intellectual property rights
12.1. «Intellectual property rights» apply to: computer software, pictures, text, other copyrighted works, designs, trademarks, company names, names, domain names, logos, trade names and all other intellectual property rights whether protected or not, whether registered or not, and all similar or equivalent rights or forms of protection in all parts of the world.
12.2. Property of intellectual property rights: All intellectual property rights arising from or related to the service, the product or the website belong to EAT.ch and the content of the Mediation Contract does not transfer such intellectual property rights to the restaurant.
Company name, name, brand, logo or other designation, as well as the menu of the restaurant and menu pictures provided by the restaurant belong to the restaurant and the content of the mediation agreement does not lead to the transfer of these intellectual property rights to EAT.ch.
12.3. Licensing of intellectual property rights: EAT.ch grants the restaurant a license to use the product, company name, brand and logo of EAT.ch for use of the service during the term of the Mediation Contract, including but not limited to the purposes of sections 1, 3.2 and 13.1 of these GTC.
The restaurant grants EAT.ch a license to use the restaurant's company name, name, trademark, logo, other designation, menu, menu pictures provided by the restaurant to EAT.ch and other intellectual property rights of the restaurant for the provision and promotion of the service during the term of the Mediation Contract, including but not limited to the purposes of sections 1, 3.1, 13.2 and 13.4. of these GTC.
12.4. Legal guarantee: EAT.ch hereby guarantees that EAT.ch has the rights to license in accordance with section 12.3 of these GTC and that no intellectual property rights of third parties (in particular of its licensors or franchisors) are infringed as a result.
The restaurant hereby guarantees that the restaurant has the rights to license in accordance with section 12.3 of these GTC and that no intellectual property rights of third parties (in particular of its parent companies and the photographers of the menu pictures) are infringed as a result.
12.5. Intellectual property rights of third parties: If a third party asserts claims against EAT.ch due to the infringement of intellectual property rights of third parties with regard to the company name, name, brand, logo, other designation or menu of the restaurant, or menu pictures or other materials provided by the restaurant, the restaurant shall indemnify EAT.ch against all losses, damages or claims of any kind whatsoever as well as against all resulting costs (including court and attorney fees).
13.1. Mounting the EAT.ch branding: The restaurant undertakes to market EAT.ch and/or the website by affixing a plaque on its premises in accordance with EAT.ch's instructions.
13.2. Marketing by EAT.ch: EAT.ch is entitled to advertise the restaurant and its microsite and to use all the restaurant's intellectual property rights for this purpose. The restaurant then agrees to receive from time to time direct marketing messages relating to the products or services of EAT.ch or its selected partners by email, post, fax or other means of communication.
13.3. No Disparagement: The restaurant undertakes to give EAT.ch a positive mention in all promotional activities concerning the orders and the service, in accordance with the guidelines provided by EAT.ch. The restaurant is not permitted to encourage customers who have placed orders to place future orders directly with the restaurant or to attempt to redirect orders placed with the restaurant to websites other than the EAT.ch website.
13.4. Menu pictures: The restaurant has the possibility to provide EAT.ch with pictures of its menus by sending EAT.ch's menu pictures to the email address firstname.lastname@example.org for the purpose of promoting the restaurant's offer on the website, on the restaurant's microsite, in advertising mailings, on social media and other advertising channels. However, EAT.ch has the sole discretion to decide whether or not the menu pictures provided by the restaurant comply with EAT.ch's menu picture guidelines, are suitable for advertising and are effectively used for advertising purposes.
14. Exclusivity and non-competition:
Unless otherwise agreed, the restaurant undertakes to cooperate exclusively with EAT.ch regarding the mediation of customers, to offer restaurant services on the Internet exclusively via EAT.ch and/or to obtain delivery services exclusively from EAT.ch. During the term of this Mediation Contract and for a period of 12 months after its termination, the restaurant undertakes (i) not to cooperate with a company, (ii) not to purchase services from a company, (iii) to participate directly or indirectly in a company or (iv) to set up a company which carries on competing activities with EAT.ch in Switzerland («competing activities»). «Competitive activities» defines the same or comparable services as those provided by EAT.ch to the restaurant under the Mediation Contract or other similar activities, including, but not limited to, mediating customers, offering the restaurant's products over the Internet and/or providing delivery services. In any case of the violation of these exclusivity obligations by the restaurant for the duration of this Mediation Contract, the commission fee according to the Mediation Contract increases immediately by 2%. Upon termination of the Mediation Contract, the restaurant shall owe a contractual penalty equal to the commission paid to EAT.ch during the last 6 months of 25%, but not less than CHF 5,000. In the event of continued breach of these exclusivity obligations, the contractual penalty shall be due anew for each calendar month. Payment of the contractual penalty does not release the restaurant from its obligation to comply with the exclusivity obligations. EAT.ch is entitled to offset the contractual penalty owed in accordance with this provision against the amounts owed by EAT.ch to the restaurant.
15. The website of EAT.ch
15.1. EAT.ch intends to make the website available and operational 24 hours a day, but is not obliged to do so.
15.2. EAT.ch may interrupt access to the website at any time and without notice in order to maintain and update the website. In this context, EAT.ch will use appropriate efforts to ensure that such interruptions are as short as possible and, as far as possible, occur at a time when the number of orders is as low as possible.
15.3. EAT.ch wishes the website to comply with all applicable laws and regulations, including those governing the processing of personal data. Should EAT.ch provide direct access to the restaurant to make changes, the restaurant shall be solely responsible for such changes and shall indemnify EAT.ch for any loss, damage or claim suffered by or brought against EAT.ch as a result of the restaurant's actions or omissions.
16. Breach of obligations by the restaurant
16.1. If the restaurant violates its obligations under the Mediation Contract or these GTC or acts in a manner that damages the business, goodwill or reputation of EAT.ch, e.g:
16.1.1. because the restaurant does not pay the amounts owed to EAT.ch or does not pay them on time;
16.1.2. because the restaurant's services are not meeting the required quality (errors in the preparation or delivery of orders by the restaurant; late provision or delivery of orders by the restaurant, poor quality of the food, drinks and/or goods delivered, indications of the risk of infection, lack of hygiene, incorrect information, etc.);
16.1.3. because the restaurant is unable to accept or process orders even if the product is switched off, does not receive the GPRS signal or has malfunctions, or because it repeatedly rejects orders;
16.1.4. because EAT.ch receives information that the restaurant does not have the necessary rights and consents for the use of its company name, name, brand, logo, or the provided menu pictures;
16.1.5. in the event of complaints or bad evaluations by customers due to violations of section 16.1.2 or due to incorrect or impolite employees or suppliers of the restaurant;
then EAT.ch may, without prejudice to its other rights or remedies, suspend at any time the provision of the services under the Mediation Contract or the provision of any other services which it provides to the restaurant under separate agreements (and take the restaurant's website Profile offline without notice from the website) without incurring any liability whatsoever. The suspension of the services shall continue until the failure to perform or the problem in question has been resolved to the satisfaction of EAT.ch (acting reasonably) and, if necessary, until the termination of the Mediation Contract pursuant to section 16 of these GTC.
17. Duration, termination and continuing effect of obligations
17.1. Duration: The Mediation Contract shall enter into force as soon as it has been signed by both parties and shall remain in force until terminated in accordance with its provisions.
17.2. Ordinary termination: Either party may terminate the Mediation Contract in writing at any time at the end of any calendar month, subject to one month's notice.
17.3. Consequences of termination: Upon termination of the Mediation Contract, EAT.ch will send a message to the restaurant confirming the termination of the service and providing details of the final payment. In addition, EAT.ch will pay the restaurant the outstanding obligations owed to the restaurant or request the restaurant to pay the outstanding obligations owed to EAT.ch. The Order Pad must be returned to EAT.ch undamaged.
17.4. Websites stored in the cache: EAT.ch will delete or deactivate the website profile of the restaurant and the EAT.ch website of the restaurant as soon as possible after termination of the Mediation Contract. However, the restaurant acknowledges that cached versions of these pages may continue to exist in web browsers and web servers of search engines and customers even after such termination and agrees that EAT.ch has no control over the foregoing and shall not be liable to the restaurant in connection with the foregoing (whether based on an infringement of intellectual property rights or otherwise).
17.5. Continuation of certain rights and obligations: The rights and obligations of the parties under the Mediation Contract that are intended to continue in effect beyond the termination or expiration of the Mediation Contract (including those in this section 16 and in the sections 2.5, 5.2, 10.4, 11.6 (as far as the product is concerned), 12, 13.3, 14, 18, 23, 24 and 26 of these GTC) shall remain in effect indefinitely beyond the termination of the mediation agreement.
18. Limitation of liability and disclaimer of liability
18.1. Liability of both parties: The contents of this agreement do not limit or exclude the liability of EAT.ch or the restaurant for death or personal injury caused by their responsibility under this agreement, negligence or that of their employees, agents or subcontractors, for fraud, fraudulent misrepresentation or gross negligence or any other liability which cannot be limited or excluded under applicable law.
18.2. Exclusion of liability of EAT.ch: Subject to section 18.1, any liability of EAT.ch towards the restaurant is excluded, in particular but not limited to loss, cost, direct and indirect damage, or loss of revenue incurred by the restaurant in connection with the Mediation Contract (including in the event of errors, failures or other interruptions to the service for any reason), suspension or termination of the Mediation Contract.
18.3. Liability of the restaurant: The restaurant is liable to EAT.ch for all damages caused by it to EAT.ch GmbH, including slight negligence.
18.4. Indemnification: The restaurant agrees to fully indemnify and hold EAT.ch harmless from and against any and all damages, losses and claims (and all costs associated therewith, including court costs, attorneys' fees and fines) made by any customer or third party against EAT.ch in connection with any incorrect information on the menu, or any failure by the restaurant to deliver or properly deliver any order, or any failure by the restaurant to perform the Mediation Contract, or any breach by the restaurant of any applicable laws, rules and regulations.
18.5. Third-party notice: The restaurant agrees and undertakes not to object to EAT.ch involving the restaurant in any proceedings brought against EAT.ch in connection with the acts or omissions of the restaurant in connection with this Mediation Contract by way of a third party notice or otherwise.
19. Force majeure
Neither party shall be liable to the other party for the late performance or non-performance of its obligations under this Mediation Contract if this is due to force majeure. An «event of force majeure» is defined as events beyond the reasonable control of a party, such as in particular strikes, the failure of public utilities or transport networks, failures of the telecommunications provider, demonstrations, accidents, fires, floods, storms or service disruptions of suppliers or subcontractors, or import restrictions.
20. Final regulation
The Mediation Contract and these GTC shall supersede all agreements between the parties and supersede all prior written or oral drafts, contracts, understandings and agreements between the parties relating to the subject matter hereof which thereby become invalid; the parties may not assert any claim of innocent or negligent misrepresentation arising out of any representations made in this Mediation Contract and these GTC.
EAT.ch may amend these GTC in writing by giving one month's notice. The restaurant must be notified of these changes by fax, e-mail or post. If the restaurant does not object to these changes within two calendar weeks of this notification or terminates this agreement in accordance with section 17.2, these changes shall subsequently take effect and shall be deemed accepted by the restaurant.
22.1. EAT.ch may assign all its rights and obligations under the Mediation Contract to third parties.
22.2. The restaurant may not assign, transfer, encumber, sub-contract or otherwise dispose of its rights or obligations under the Mediation Contract without the prior express written consent of EAT.ch.
The contents of this agreement and any information about the other party that is not generally known must be kept secret during the term of this agreement and even after termination of this agreement (unless disclosure is required by law or required by a competent authority). Such confidential information shall include information not generally known about the product, business partners, compensation and other matters relating to the other party's business. The parties shall also ensure that the employees, subcontractors and other contractors called in by them also undertake to maintain confidentiality. However, EAT.ch is entitled to use the name of the restaurant as a reference.
24. Data protection
24.1. The parties undertake to process the personal data of the customers only in accordance with Swiss data protection regulations. With regard to the processing of personal data of customers, the corresponding provisions in the GTC of EAT.ch applicable to the contractual relationship with the ordering customers shall also apply.
24.2. The parties process the personal data of the customers only for the purpose of fulfilling the Mediation Contract. In addition, EAT.ch, but not the restaurant, is entitled to process personal data of customers for the following purposes: for statistical purposes, to manage the business, to develop the product, to obtain the customer's opinion on the services provided by the parties, and to promote to the customer.
24.3. After termination of the Mediation Contract, EAT.ch remains entitled to process the personal data of the customers referred to the restaurant without restriction, except in the case of deletion requests of individual customers. After termination of the Mediation Contract the restaurant must delete the personal data of the customers referred by EAT.ch and refrain from any further use.
25. Invalidity clause
If provisions of the Mediation Contract and/or the GTC are found to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall remain valid in their entirety and the invalid provisions in whole or in part shall be amended to such an extent that their validity, legality and enforceability are established and the economic purpose intended in the invalid provision is achieved in the best possible way.
26. Applicable law and place of jurisdiction
26.1. Applicable law: The Mediation Contract and all disputes and claims arising out of or in connection with the Mediation Contract or the subject matter or conclusion of the Mediation Contract (including disputes or claims relating to non-contractual obligations) shall be governed by Swiss substantive law to the exclusion of conflict of laws, provisions and agreements.
26.2. Place of jurisdiction: The parties undertake to submit all disputes in connection with the Mediation Contract to the exclusive jurisdiction of the ordinary courts at the registered office of EAT.ch Zürich (including non-contractual disputes or claims). However, EAT.ch is also entitled to sue the restaurant at its registered office or place of residence.
Version: December 2019