Terms & Conditions
(Market Hay Sellers)

I. Agreement between seller and Market One Inc.


A. Definitions

1. “Banana Squad” means independent third-party delivery contractor.

2. “Market Hay Data” shall mean any information that Market Hay provides or makes accessible to Merchant through the Market Hay Platform, including without limitation Personal Information.

3. “Customer” means the customer who places an order for Merchant products through the Market Hay Marketplace.

4. “Market Hay Marketplace” means Market Hay’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the Market Hay website or mobile application for delivery by a Banana Squad to the Customer. This is also referred to herein as the Market Hay Platform.

5. “Market Hay Services” means Market Hay Marketplace, as applicable.

6. “Marketplace Orders” means orders for Merchant Products through the Market Hay Marketplace from Market Hay customers.

7. “Merchant” means the restaurant or other entity that has agreed to participate in the Market Hay Services.

8. “Merchant Stores” means the Merchant restaurant locations that participate in the Market Hay Services.

9. “Marketplace Term” means the term of the agreement between Market Hay and Merchant for the Market Hay Marketplace.

10. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).

11. “Commission Rate” means the commission fees collected by Market Hay in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Market Hay Platform, which is charged as a percentage of revenues transacted on the Market Hay Platform.

B. The Parties' Relationship

Market Hay provides an online marketplace platform using web-based technology that connects Merchants and customers ("Platform"), and delivery service ("Banana Squad”) as described in these Terms for Market Hay Marketplace. Market Hay is not a merchant; it is an online connection platform and delivery service. Merchant and Market Hay agree they are independent businesses whose relationship is governed by these Terms. Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Market Hay and Merchant (or Merchant's employees, representatives or locations), Market Hay and Banana Squad, or Market Hay and customers. Except as expressly set forth in these Terms, each Party shall be responsible for its own expenses, profits and losses.

C. Marketplace Core Responsibilities

For Merchants that have agreed to participate in the Market Hay Marketplace, Market Hay and Merchant shall have the following responsibilities during the Marketplace Term:

1. Market Hay Core Responsibilities. Market Hay will, in a timely manner:

1) Display Merchant’s name; and a menu of Merchant Products on the Market Hay Platform;

2) Accept Marketplace Orders from Customers;

3) Forward each Marketplace Order to the relevant Merchant Store; and

4) Forward each Marketplace Order to a Banana Squad, so that the Banana Squad can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.

5) Pay the Merchant in accord with the Parties' agreements, deduct the applicable Commission Rate, and any other fees you have agreed to with Market Hay (in each case, as may be adjusted by Market Hay as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature).

2. Merchant Core Responsibilities. Merchant will, in a timely manner:

1) Provide Market Hay with the Merchant’s in-store or take-out menu, including the price and photos of each item on such menu;

2) Monitor Merchant’s menu and store information on the Market Hay Marketplace, promptly make updates via the Market Hay Merchant Service to reflect the most up-to-date products, pricing and other information or immediately notify Market Hay of any errors or changes in writing;

3) Accept all Marketplace Orders placed by Market Hay from Merchant’s then-current menu;

4) Confirm all Marketplace Orders from Market Hay;

5) Prepare the Merchant Products for each Marketplace Order for pickup by a Banana Squad at the designated time;

6) Process Marketplace Orders in the order in which they are received;

7) Notify Market Hay of any changes to the pricing, availability, description, its days and hours of operation, or other characteristics of the Merchant Products;

8) Notify all Merchant store staff members of the relationship with Market Hay immediately upon execution of this Agreement; and

9) Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to this Agreement.

10) On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Market Hay Merchant Service, and promptly communicate to Market Hay any inaccuracies.

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

Marketplace Refunds. In the event that Market Hay, in its sole reasonable discretion, has to issue a refund, credit or re-order on anCustomer’s Order, Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of the Banana Squad or Market Hay.

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

1. Market Hay Marketplace. Market Hay will pay for Marketplace Orders fulfilled by Merchant each week on a consistent day of the week, subject to change with no less than 10 days notice to Merchants by email or service notification. Market Hay shall be entitled to deduct from such payments Market Hay’s Commission Rate and any other fees you have agreed to. Merchant agrees Market Hay may charge the customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in Market Hay's sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.

2. In some jurisdictions in the United States, Market Hay may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Market Hay will inform Merchant that Market Hay will remit Collected Taxes to the tax authority and Market Hay will be relieved of any responsibility to remit such Collected Taxes to Merchant.

3. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Market Hay Merchant Service, and to promptly communicate to Market Hay in writing any claimed inaccuracies, so that Market Hay has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Market Hay and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Market Hay any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to Market Hay regarding such transaction, fee, charge or order within such 60-day period.

4. Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the customer upon pickup at the Merchant’s location. Merchant agrees that neither the Banana Squad nor Market Hay holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.

F. Payment Processing

Payment processing services for Merchants on the Market Hay Marketplace are provided by Stripe(or PayPal) and the Stripe(or PayPal) Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe(or PayPal) Services Agreement, as the same may be modified by Stripe(or PayPal) from time to time.

G. Merchant Content and Trademark; Photographs of Menu Items

1. During the Marketplace Term, as applicable, Merchant grants to Market Hay a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use and display the Merchant  Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to Market Hay.

2. If photographs of Merchant’s menu items are not available or if they do not meet Market Hay’s requirements, as reasonably determined by Market Hay, then Merchant consents to Market Hay engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the Market Hay Marketplace as representations of Merchant’s menu items; provided that Merchant may contact Market Hay support to have such photographs removed from the Merchant’s store listing and, in such event, Market Hay will comply in a timely manner.

H. Confidential Information

1. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Market Hay Data is the Confidential Information of Market Hay.

2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.

3. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with this Agreement, not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.

4. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Agreement and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

I. Data Privacy and Security

General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Market Hay Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Market Hay Data secure from unauthorized access and maintain the accuracy and integrity of Market Hay Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Market Hay Data, Merchant will immediately notify Market Hay, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Market Hay. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Market Hay and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Market Hay Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Market Hay Platform; damage, destroy or impede the services provided through the Market Hay Platform; transmit injurious code; or bypass or breach any security protection on the Market Hay Platform.

J. Termination

Merchant may terminate this Agreement for any reason at any time upon 14 days prior written notice. Market Hay may terminate this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor Market Hay will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or Market Hay.

K. Modifications

Market Hay reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Market Hay may, at its sole discretion, remove Merchant Products or Stores from the Market Hay Marketplace if Market Hay determines that such Merchant Product or Merchant Store could subject Market Hay to undue regulatory risk, health and safety risk, or other liability. Market Hay also may revise these Terms from time to time. The changes will not be retroactive. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

L. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer

1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.

2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, (ii) all applicable laws related to third party intellectual property and other proprietary rights.

3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed Market Hay of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Market Hay of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the Market Hay Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Market Hay Marketplace or request delivery of any age-restricted products through the Market Hay Platform without first entering into a separate agreement with Market Hay memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) it will not disclose any information related to a Banana Squad or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under this Agreement.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, MARKET HAY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE MARKET HAY PLATFORM, SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Market Hay shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Market Hay services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

M. Indemnification

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Market Hay, Banana Squad (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless Market Hay from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Market Hay. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Market Hay assumes no liability, and shall have no liability, for any infringement claim pursuant to this Agreement above based on Merchant’s access to and/or use of the Market Hay Platform following notice of such an infringement claim; any unauthorized modification of the Market Hay Platform by Merchant; or Merchant’s combination of the Market Hay Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

N. Insurance

During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

O. Franchisees

Franchisees operating a restaurant concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by Market Hay to the Franchisee.

P. Communications from Market Hay

Merchant agrees to accept and receive communications from Market Hay or Banana Squad, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to Market Hay. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Market Hay, its affiliated companies and/or Banana Squad. Merchant may opt out of such communications in Market Hay Merchant Service or by replying “STOP” from the mobile device receiving such messages.

Q. Attorneys’ Fees

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

R. General Provisions

These Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof. In consideration of Market Hay's agreement to utilize the law of the Merchant's place of business, Merchant agrees that, except as set forth above in this Agreement (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of New York City, New York. Merchant may not assign this Agreement in whole or in part without Market Hay’s prior written consent. Market Hay may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties' agreements must be in writing, and delivered by overnight courier to the addresses set forth on this Agreement (or any updated address properly noticed hereunder). Market Hay’s address is 3085 Vernon Blvd, Suite 4K, Long Island City, NY 11102. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

S. Effectiveness Of Terms And Termination

These Terms will become effective and binding when you use Market Hay Services. You may delete your Account at any time, for any reason. We reserve the right to terminate your Account, your access to Market Hay Services, and these Terms at any time without notice. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms.

T. Changes To Services

We reserve the right to change Market Hay Services at any time without notice. If you object to any changes to Market Hay Services, your sole recourse will be to cease using Market Hay Services. Continued use of Market Hay Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with Market Hay Services as so changed. We also reserve the right to discontinue Market Hay Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to change or discontinue Market Hay Services. We may update the content on Market Hay Services from time to time, but its content is not necessarily complete or up to date. Any of the material on Market Hay Services may be out of date at any given time, and we are under no obligation to update such material.

U. Changes To Terms

We may revise and update these Terms from time to time. We reserves the right, in its sole discretion at any time, to change these Terms under which Market Hay Services are offered. The most current version of these Terms will supersede all previous versions. All changes are effective immediately when we post them. We encourages you to periodically review these Terms to stay informed of our updates. If you use Market Hay Services, it is your responsibility to periodically review these Terms on the Website, and if at any time you find these Terms unacceptable, you must immediately cancel your order. Your continued use of Market Hay Services following the posting of revised terms means that you accept and agree to the changes. New Terms will only apply proactively to products or subscriptions purchased after the date we post the new Terms.

V. Feedback

We welcome your comments and suggestions regarding Market Hay Services and the information, products and services we make available here. Contact us at help@markethay.com to provide feedback.

W. Contact Information

Business Name and Legal Contact : Market One Inc.
E-mail : help@markethay.com
Phone : (917) 400-9915
Mailing Address : 3085 Vernon Blvd, 4th Floor, Long Island City, NY 11102

X. Effective Date

Effective as of January 01, 2020
Last modified: January 01, 2020