Updated February 18 2021
By signing up for a Digital Ordering System (“DOS”) Merchant Account or by using any SESI Services (as defined below), you are agreeing to be bound by the following terms and conditions (the “Terms”). These terms and conditions ("Terms") are an agreement between Scrambled Eggs Software Inc. ("SESI", "us", "we" or "our") and the person accessing or using the Service on behalf of the body corporate or entity (“Merchant”, "you" or "your"). This Agreement sets forth the general terms and conditions of your use of DOS and other products for Merchant to process orders and payments (collectively the “Service”) in accordance with these Terms and the Applicable Governing Laws. If Merchant does not agree to these Terms, they are not authorized to access and use the Service, and Merchant must immediately stop doing so.
SESI reserves the right to change these Terms at any time by notifying the Merchant of the changes by email. The changes in these Terms take effect from the date of notice unless stated otherwise. The Merchant is strongly advised to regularly check the Terms published on the website for any changes that may affect you. By the Merchant’s continued use of the Service, it is understood that you have read, agreed and accepted all these Terms and any changes therein.
SESI Service Obligations
SESI’s provision of the Service to Merchant is non-exclusive.
While SESI uses reasonable efforts to ensure 24/7 availability of services, however, regular maintenance, development activities, or any Force Majeure event, may at times render the service unavailable for a certain period. Such instances shall not constitute breach nor render SESI liable for any delay or non-performance.
SESI in its absolute discretion, may modify the Service (or any part thereof) at any time without notice in order to solve technical issues promptly and to make improvements.
SESI is not a marketplace. Any contract of sale or any agreement through your Merchant Account is directly between you and the buyer. Also, SESI may offer “Third Party Services” (e.g., web services, third party solutions or payment gateways) to provide more tools or features to you for your convenience. However, SESI does not make any express or implied warranty or representation on the availability and reliability of Third Party Services.
We are providing software and by nature tech products will experience unexpected issues. We will fix issues and make improvements on a best effort basis.
Merchant Service Obligations
use the Service in accordance with these Terms solely for Merchant’s own internal business purposes; and for lawful purposes and in accordance with the Data Privacy Act of 2012 and copyright laws (collectively “Applicable Governing Laws”) which may be applicable to the Merchant in availing the Service and for its transaction with any person who either purchases or attempts to purchase products through the Merchant’s Service (“Purchaser”) within the relevant territorial jurisdiction;
not resell or make available the Service to any third party for commercial purposes nor impersonate another person or misrepresent authorization to act on behalf of others or SESI.
not use, or misuse, the Service in any way contrary to SESI policies issued from time to time or which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service.
not attempt to view, access or copy any material or data unless authorised by SESI and only to the extent necessary to use the Service in accordance with these Terms.
neither use the Service to purposely violate the intellectual property or privacy rights of SESI or any third party; nor utilize the Service in any objectionable, incorrect or misleading manner.
provide true, current and complete information in all dealings with us and must promptly update any information as required.
be directly responsible for the acts and omissions of its personnel. A breach of any of these Terms by Merchant personnel or agent is deemed to be a breach by Merchant and may result in service suspension or termination.
acknowledge that by using Third Party Services, you have read and agreed to be bound by the third party’s terms and conditions including its amendments and data privacy policies. If for any reason SESI halts any third party service or feature, you agree that you will not be entitled to any refund, discount or other compensation.
You must use the Digital Ordering System (DOS) only for its intended use which is to capture, process, and fulfill orders from your restaurant. You are bound by these terms of service and are responsible for your account.
Data Control and Processing
Merchant acknowledges that SESI or its personnel for all intents and purposes, shall be acting as data processor, and need access to all photos, data, content, and information (including Personal Information) owned, held, used, provided or created by you or your personnel that is stored in, used, or inputted into the Merchant Account, including the Purchaser’s data (“Data”). Merchant agrees that it has control of Data for all activity and content used in the Merchant’s personal profile in DOS (“Merchant Account”), as well as sensitive Personal Information or Personally Identifiable Information (“PII”), or credit information or data, belonging to the Merchant, its End User or Purchaser which may be encoded, stored, accessed or processed through the use of the Service.
SESI will not store, access, use or process Data for any purpose other than to perform its obligation under this Agreement. As Data Processor, SESI shall rely on the Merchant’s representation that it has secured all consents and approvals necessary for us to lawfully access and process the Data. Upon signing this Agreement, Merchant agrees to procure all necessary licenses, authorizations and customer consents as may be required by applicable laws.
Merchant grants SESI the consent to:
use Data of the Merchant, its End Users and Purchasers exclusively to develop and improve the Service, offer products and services, facilitate partnerships, or to generate data to be used for business analytics purposes ("Analytical Data") which means the data will be completely aggregated and anonymised, or in an acceptable format where none of the data subjects will be personally identifiable.
use the Analytical Data generated for product development and market research to identify trends and insights; provide information, content to vendors and partner service providers; for technological infrastructure, customer service support, facilitate payments or for conduct of surveys.
SESI’s rights under clause 3.2.2 shall survive termination or expiry or termination of these Terms.
Merchant may at any time withdraw consent previously granted to SESI by giving notice of withdrawal by e-mail and in accordance with data privacy laws, rules and regulations. SESI shall immediately give effect to Merchant’s withdrawal of consent, to the extent that such withdrawal does not conflict with any of our other legal obligations.
Merchant agrees to keep a separate back-up copy of all data uploaded by Merchant onto the Service and allow SESI to store and transmit data outside of the country or province in which the Merchant is located.
We act as data processors and the data uploaded or collected will solely be used to perform our obligations and improve our service. You act as data controller and you’re responsible for getting any consents and approvals for us to perform our obligations.
All Intellectual Property (IP) rights and moral rights in the Service and all underlying technological systems, materials, derivative works, modifications or enhancements resulting from any comment, idea or feedback created in connection to the Service, are and remain as SESI property. SESI reserves the right to use or disclose such comment, idea or feedback shared or developed in connection to the Service, for any purpose. Merchant must not contest or dispute that ownership or the validity of those Intellectual Property rights. Merchant further acknowledges and agrees that the title to, and all Intellectual Property Rights in the Analytical Data under clause 3.2.1 is and remains SESI’s property.
As between the parties, the title to and all Intellectual Property rights in the Data belongs to the Merchant. The Merchant is responsible for compliance of the materials with any applicable IP laws or regulations.
The Merchant grants SESI the non-exclusive right and license to use its names, trademarks, service marks and logos for the purpose of delivering the Service.
We own the service and all IP connected to it. Any materials you upload in the service (i.e. logo, menu, product photos, etc,) and customer data you collect through the service remains yours.
Any and all Confidential Information of either party will be kept confidential. Each party agrees to use the other party’s Confidential Information solely and exclusively for performing its obligations under these Terms.
For purposes of these Terms, “Confidential Information” include any specific business terms of this Agreement, and any other information that a party treats as confidential: (i) marked or identified as confidential or proprietary; (ii) performance metrics, service delivery processes, methodologies, tools, pricing information, business or financial affairs of either party; (iii) generated analytical data or databases, client lists or information, sales plans or marketing plans, research, software, records, trade secrets or intellectual property or other information of a party; (iv) either of the party’s business information, and personal information or personally identifiable information, sensitive data such as credit card or bank account information, of the parties, end users or Purchasers disclosed in connection or arising from any transaction related to this agreement;
For the avoidance of doubt, Confidential Information does not include information that is: (i) already in possession of or known by the receiving party prior to disclosure of the other party; (ii) generally or publicly known information; (iii) obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (iv) independently developed without use of the disclosing party’s Confidential Information.
Any confidential information shared between parties must only be used to carry out the service and must be kept secured.
Service Fees, Invoicing, and Payment Terms
A non-refundable monthly fee may be payable to SESI (“Subscription Fees”) and any other fees, including but not limited to applicable fees relating to the value of sales made through DOS (“Transaction Fees”) and any outstanding fees owed will be charged from time to time at SESI’s discretion (collectively,"Amounts Payable").
SESI shall collect all online payments from the Purchaser (“Purchase Amounts”) as payment processing agent for the Merchant.
Merchant agrees and accepts that Amounts Payable will be set off against the Purchase Amounts for purposes of payments to the Merchant (“Transfer Amounts”).
SESI will provide a Settlement Report to Merchant and Merchant will have approximately 7 calendar days to bring up and settle any issues with the billing.
In case of breach of contract by the Merchant or if SESI concludes that the actions and/or performance of the Merchant may result in customer disputes, high refund rates, chargebacks or other third party claims, or there are any sums owed by the Merchant to SESI, or any claims of third parties against SESI arising from the Merchant’s performance, then SESI may, in its sole discretion have the right to delay or suspend payment of Transfer Amounts.
The Merchant shall be responsible for all relevant taxes, duties, fees and other charges arising out of or associated with the Transfer Amounts and shall settle the same on time. As may be required by law, SESI shall be entitled to withhold any and all taxes in connection with Transfer Amounts and any tax liability in connection with the Transfer Amounts shall be for the account of the Merchant regardless of when such tax liability is assessed
The Subscription Fees and the Transaction Fees are subject to change upon 30 days’ notice from SESI. Such notice may be provided at any time by posting the changes to the website or via email.
We will deduct our fees from your sales revenue made through DOS before depositing your sales revenue into your nominated bank account at your chosen disbursement schedule. You are given 7 days to report any issue related to the settlement report and disbursement amounts.
Each party warrants that it has full power and authority to enter into, and have the licenses necessary to perform its obligations under these Terms to the maximum extent permitted by law. Both Parties agree that:
as may be allowed by law, any applicable consumer protection legislation shall not apply to the supply of the Service or to these Terms;
it is fair and reasonable that the parties are bound by this clause, and
SESI does not make any other express or implied warranties under these Terms except those which cannot be disclaimed by contract.
SESI does not warrant the availability, quality or reliability of any Third Party Services. The relationship between a Merchant and a Third Party Service Provider shall be governed exclusively by the third party’s terms and conditions. Any complaints or disputes that may arise between Merchant and a Third Party Service Provider must be taken up and resolved by them directly.
Merchant represents and warrants to SESI that:
all Data transmitted, encoded, stored or accessed while using the Service does not breach or infringe any third party rights (including Intellectual Property Rights, moral rights and privacy rights).
it shall not post, sell or transact, through the Service, any items or services that are unmerchantable or prohibited by applicable law.
We are not responsible for the performance of Third Party Services used (i.e. logistics partners such as Lalamove, Mr Speedy and GrabExpress, server hosts, geo-location service providers, etc). You can address matters with them directly or deactivate usage of this third-party service.
Indemnities and Limitation of Liability
Merchant expressly agrees that SESI shall not be liable for any and all claims, demands or liabilities, whether direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of, inability to use or in connection with the Service.
Merchant agrees to indemnify and hold SESI and (as applicable) our parent, subsidiaries, affiliates, SESI partners, officers, directors, agents, employees, assignees and suppliers ("SESI Indemnified Persons") harmless from any claim, demand or liability, including reasonable attorneys’ fees, arising out of (i) Merchant’s use of a Third Party Services, (ii) a breach of warranty of merchantability under clause 7.3.2., (iii) any third party claim resulting from gross negligence, fraud, willful misconduct, or (iv) any violation of laws and regulations by Merchant or its personnel, or (v) any breach of these Terms.
The Merchant shall be solely responsible for any breach of warranty on the quality of the food and beverage items and services provided by you, and for any food poisoning, sickness, injuries or death that may be caused to any person by your food and beverage items and related services such as incorrect food order preparation, poor hygiene, sanitation and health protocols of your food premises and service, delivery failure. This clause shall survive the termination of Merchant engagement with SESI.
We provide this service “as is”. We do not warrant that the service will be free of interruptions and/or errors. In addition, your products, their quality and how they’re handled is solely your responsibility.
Term, Termination and Suspension
Either party may terminate this agreement for any breach of any of the Terms by giving the other party at least 30 days written notice.
Upon effective date of termination, SESI will cease providing the Service, remove Merchant’s access to DOS, and delete Merchant Account. As a consequence of termination, Merchant will not be entitled to any refunds of any fees or compensation. Any outstanding balance owed to SESI will immediately become due and payable in full on the effective date of termination.
SESI, in its sole discretion, may immediately suspend Merchant access or use of DOS, and/or terminate this Agreement by written notice if:
the Merchant or its personnel undermined, or attempted to undermine, the security or integrity of DOS, or used, or attempted to use DOS for improper purposes or upends operational performance of the Service
the Merchant commits any data breach, fails to pay its obligations to SESI, or for material breach which is left unremedied within seven days after receiving notice of breach from SESI
the Merchant is the subject of a liquidation, insolvency or bankruptcy proceedings, or it ceases, or threatens to voluntarily cease to carry on its business.
Termination of Merchant’s engagement of the Service does not affect either party’s rights and obligations that accrued before that termination.
30 days notice is needed to terminate this agreement. Please notify us via email to begin the termination process. We can suspend your access to the service or terminate this agreement if you breach any of these terms.
SESI’s failure to exercise any right or remedy under this Agreement will not operate as a waiver thereof. The rights and remedies provided in this agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).
Governing Law and Jurisdiction
This Agreement shall be governed by, and constructed in accordance with, the laws of the Philippines. The parties agree to submit to the exclusive jurisdiction of the courts of the City of Mandaluyong.
No Party shall be held responsible for any delay or failure in performance of any part of its obligations under this Agreement caused beyond its reasonable control, any fortuitous event, and without the fault or negligence of the delayed or non-conforming Party.
From time to time, SESI may, in its sole discretion, invite Merchant to use, on a trial basis, pre-release or beta features that are in development and not yet available to all merchants (“Beta Services”). Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information and subject to the confidentiality provisions in this agreement. SESI makes no representations or warranties that the Beta Services will function and SESI may discontinue the Beta Services at any time in its sole discretion. SESI will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Equipment and Data Use
The Merchant shall be required to use an Android-powered tablet to process orders on the Service.
If the Android-powered tablet (including a wire, charger, box, and if applicable, a sim) (collectively the “Equipment”) is provided by SESI, the Merchant shall agree to the following:
The Merchant shall not use the Equipment for personal or any unlawful purpose nor claim any ownership or other rights over the Equipment.
The Merchant shall ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner and shall not remove any existing component(s). SESI will not be responsible for missed or cancelled orders due to unforeseen circumstances involving the Equipment and/or Merchant’s operation or misuse of the Equipment.
The Merchant shall immediately notify SESI in case of seizure, loss or damage to the Equipment and shall indemnify SESI for all losses, costs, charges, damages and expenses incurred as a result thereof, except damages resulting from usual wear and tear. Equipment may not be exchanged or replaced with a different brand.
The Merchant shall return the Equipment to Unit D1 2/F 603 Rey-D Building San Rafael St., Cor., Boni Avenue, Plainview, Mandaluyong City within 10 days after the 30 days termination period in the case of termination of this agreement.
You are responsible for the upkeep of the tablet device that we lend to you and you must only use it for our service.