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URBANPIPER TECHNOLOGY USA, INC.
RESTAURANT SERVICES AGREEMENT (RSA)
Effective as of June 26, 2020
This Restaurant Services Agreement (“Agreement” or “RSA”) are the terms, conditions and legal agreement by and between UrbanPiper Technology USA, Inc., a Delaware Corporation (“Ordermark by UrbanPiper or Ordermark”), and You, the restaurant owner/operator or entity you represent as specified on the Order Form (“Restaurant”, “You” or “Your”). Ordermark and Restaurant may be referred to individually as a “Party” or collectively the “Parties” under this RSA. This RSA shall become applicable from the date of usage of the Restaurant Service/ product/ platform of Ordermark or from the Effective Date indicated on the Order Form (whichever is early) and governs the relationship between the Parties. By accessing and/or using Ordermark’s Restaurant Services, a) You agree to be bound by this Agreement and acknowledge having read the privacy policy which can be accessed in https://www.ordermark.com/privacy/ (“Privacy Policy”)
In order to utilize any Ordermark product or service, You agree to all of the following terms and conditions of service:
1. Definitions.
1.1. “Confidential Information” shall mean all business, financial, engineering and/or technical information belonging to or properly in the possession of a Disclosing Party, or to which the Receiving Party has access pursuant to this Agreement, regardless of form or medium (including, without limitation, information and tangible and intangible property which may related to proprietary products, concepts, marketing information, trade secrets, technology, processes drawings, specifications, programs, models, financial information and projections, formulae, data, know-how, developments, designs, improvements, software programs, marketing materials, plans and strategies, customer and Provider lists, and other valuable business information and products), and whether or not marked or otherwise identified by Disclosing Party as being confidential. Confidential Information shall not include any of the following: (i) information that is independently developed by Receiving Party without any use of and/or access to the Confidential Information as established by Receiving Party by appropriate documentation; (ii) information that is lawfully received by the Receiving Party free of restriction from a third party having the right as of the date of such disclosure to so furnish such Confidential Information without any breach of the confidentiality obligation owed to Disclosing Party; (iii) information that is in the public domain at the time of disclosure or which thereafter becomes part of the public domain through no wrongful act of Receiving Party; (iv) information that, at the time of disclosure to Receiving Party, was known to Receiving Party free of restriction as evidenced by appropriate documentation in Receiving Party’s possession; and (v) information that Disclosing Party agrees in writing is free of such restrictions.
1.2. “Effective Date” means the day in which You consent to the terms of this Agreement via digital signature.
1.3. “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any software therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, software, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.4. “Online Ordering Service” means (a) a third-party online or mobile service used by consumers to order restaurant food for delivery or pickup; and (b) a restaurant delivery service used by restaurants to arrange for the management of delivery of food to consumers for restaurants
1.5. “Order Form” means an Ordermark order form by which the Ordermark Services are ordered by Restaurant.
1.6. “Ordermark Dashboard” means the Ordermark tablet software and online hosted web accessible software as made available to Restaurant in the performance of the Ordermark Service.
1.7. “Ordermark Hardware” means the thermal printer and other items including but not limited to a tablet, stand, modem and computer cables provided to Restaurant by Ordermark under this Agreement.
1.8. “Ordermark Marks” means all trademarks, service marks, logos, and other distinctive brand features that are property of Ordermark.
1.9. “Ordermark Platform” means any one or all of the Ordermark Service, Ordermark Hardware and Ordermark Dashboard.
1.10. “Ordermark Service” means the onboarding and/or maintenance of an Online Ordering Service using Ordermark personnel, Ordermark Dashboard, and Ordermark Hardware and/or via API integration with Your point of sale system. Ordermark reserves the right to change the availability of any feature, function, or content relating to the Ordermark Service, at any time.
1.11. “Restaurant Credentials” means username and password data provided by Restaurant and used by Ordermark to create, log into, and access Restaurant accounts on any Online Ordering Service accessed in connection with this Agreement or Order Form.
1.12. “Restaurant Marks” means all trademarks, service marks1.13. “Order Data” means order transactions received by the Restaurant from an Online Order Service through any means of communication includin, logos, and other distinctive brand features that are property of Restaurant.
g but not limited to an email, fax, or by an API integration with Your point of sale system. Order Data shall not, and You shall not, include information considered to be personal information under the Delaware Personal Data Privacy Act and Delaware Online Privacy and Protection Act.
1.14 “Aggregate/Anonymous Data” means (i) data generated by aggregating Order Data with other data so that results are non-personally identifiable with respect to You or Your customers, and (ii) learnings, logs, analytics, metrics and data regarding use of the Ordermark Service.
2. Responsibilities of Ordermark.
2.1. Ordermark will provide the Ordermark Platform to You per the terms and conditions of this Agreement. The Ordermark Service may include setup, onboarding, connecting the Ordermark Platform to Your Online Ordering Services, training, and other related functions that may be required for Restaurant to operate or interface with the Ordermark Platform.
2.2. Ordermark will assist the Restaurant with adding new Online Ordering Service companies if desired by Restaurant and supported by Ordermark, provided that Ordermark shall have no right to execute, enter into or amend any agreement or other contract that would obligate Restaurant without Restaurant’s prior written approval. The Parties hereby confirm and agree that such approvals to assist in adding new Online Ordering Services sent by email, facsimile, PDF or any similar electronic document transmissions by Restaurant shall be considered legal and binding.
2.3. Ordermark will host, operate and maintain the Ordermark Platform as required in accordance with the fees and configuration specified in the Order Form.
2.4. Restaurant may request, pursuant to the Order Form, and Ordermark may agree to provide, additional products or services of the Ordermark Platform including menu management functionality, integration services, additional hardware, and others.
2.5. Ordermark shall provide commercially reasonable support for the Ordermark Platform. Ordermark may, on occasion, make updates to the Ordermark Dashboard available to You at no additional charge.
2.6. Ordermark shall establish, implement, and maintain a commercially reasonable information security program that is reasonably designed to protect the security, confidentiality and integrity of the Order Data, Restaurant Credentials, Ordermark Platform and any Confidential Information. Such program shall contain administrative, technical, and physical safeguards appropriate to Ordermark and the nature and scope of Ordermark’s activities.
3. Responsibilities of Restaurant.
3.1. Restaurant shall provide Ordermark the required Restaurant Credentials and complete all necessary Online Ordering Service(s) forms required to setup and maintain each Online Ordering Service account. You hereby grant Ordermark the right to setup, access and maintain each Online Ordering Service account on Your behalf. You agree to review and comply with the terms, conditions, policies, and other rules of each Online Ordering Service for which Ordermark will be providing Ordermark Service.
3.2. You agree to provide a technical point of contact and to be responsive to requests for installation and general support.
3.3. You agree to be responsible for providing and maintaining a working connection to the Internet, and all other software, computer networks, hardware, and other items required to access or use the Ordermark Platform from your location(s).
3.4. You agree to install the Ordermark Hardware we provide to you within five (5) business days after You receive it.
3.5. You may not: (i) sell, resell, or lease, any portion of the Ordermark Platform to a third-party; or (ii) attempt to reverse engineer, decompile, copy, reproduce, or replicate the any component of the Ordermark Platform; or (iii) tamper with, harm, or modify any part of the Ordermark Platform, or use the Ordermark Hardware in a manner not consistent with Ordermark’s services; or (iv) use the Ordermark Platform for any illegal activities or fail to comply with any applicable laws; or (v) permit unauthorized use of the Ordermark Platform to any third-party.
3.6. We may provide Ordermark Hardware and you shall be responsible for maintaining the Ordermark Hardware. You hereby agree and represent that you shall use the Ordermark Hardware only for the purpose of using the service offered by Ordermark, You shall not use the Ordermark Hardware for any prohibited or unauthorised usage, you shall take good care of the Ordermark Hardware, You shall not modify or change the pre installed softwares, UI, UX or others in the Ordermark Hardware and you in the event of termination shall return the Ordermark Hardware to Ordermark in a workable good condition without any damage or fault in its working. You hereby further agree and authorise Ordermark to collect the Hardware failure fee from you, incase of any Ordermark Hardware failure due to any of the above mentioned reasons or your failure to return the hardware to Ordermark by UrbanPiper within 5 days from the date of termination / cancellation of the Service. (“Hardware failure fee” for this clause shall mean a reasonable fee as mentioned in this Agreement or in any other agreement / addendum / mutual agreement by any other means executed or agreed between you and Ordermark by UrbanPiper)
3.7. You agree and acknowledge that you have read through the general terms and conditions of Ordermark mentioned in https://www.ordermark.com/terms/ and shall adhere to the same. You agree to ensure that You shall keep yourself updated with any changes made to the terms and conditions, by visiting the website on a regular basis. We reserve the right to modify at our sole discretion, the terms and conditions without the requirement of providing notice of the same to You.
4. License Grants to Ordermark.
Subject to the terms and conditions of this Agreement, including without limitation, the confidentiality obligations set forth therein, You hereby grant Ordermark the following:
4.1. The limited, revocable, non-exclusive, royalty-free right for Ordermark to (i) use Restaurant Credentials to create, login to, and access Your Online Ordering Service accounts in connection with this Agreement, (ii) use, reproduce, electronically transmit, perform, display, store, archive and make derivative works of Order Data and Aggregate/Anonymized Data, and (iii) review and monitor Your use of the Ordermark Platform to ensure Your compliance with the terms of this Agreement. You agree that Ordermark will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Ordermark technology, which Ordermark may use for any business purpose during or after the Term of this Agreement (including, without limitation, to develop and improve Ordermark’s products and services and to create and distribute reports and other materials). For clarity, Ordermark will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify You or your customers, and that is stripped of all persistent identifiers. You are not responsible for Ordermark’s use of Aggregate/Anonymous Data.
4.2 These rights terminate upon termination of this Agreement except with respect to Aggregate/Anonymous Data, which Ordermark may continue to use in perpetuity. Restaurant Credentials shall remain Your exclusive property and do not transfer in any way to Ordermark. You retain all rights not expressly granted herein. As between Ordermark and You, You shall retain all Your proprietary rights, including all Intellectual Property Rights in and to the Restaurant Credentials and any Order Data.
4.3. During the Term of this Agreement, Ordermark shall have the right to publicly reference Restaurant as a customer in presentations to potential investors and customers and list the Restaurant Marks on Ordermark’s website and marketing materials. Ordermark shall adhere to any style guidelines communicated by Restaurant as to the use of the Restaurant Marks. Restaurant copyrights, trademarks and other ownership notices will not be suppressed in any way. The Restaurant Marks shall not be used in any other manner for any other purpose and may not be altered in anyway.
4.4. During the Term of this Agreement, Restaurant hereby appoints Ordermark as its agent to act as necessary to exercise the license grants set forth in Section 4.1 above.
5. Point of Sale Integration.
Subject to the terms and conditions of this Agreement and the configuration set forth in the Order Form, You may elect to have the Ordermark Platform integrated directly with Your Point of Sale system. In doing so, You hereby grant Ordermark, during the Term, an exclusive, non-transferable, non-sublicensable right:
5.1. to access, use and transmit Order Data for the purpose of injecting such Order Data into your Point of Sale system and for the purpose of providing reporting, aggregating, and analyzation of Order Data as set forth herein or in the Order Form.
5.2. to utilize the Ordermark Dashboard as the sole interface for You to input menu item changes for all Online Ordering Services that are integrated with Your point of sale system by Ordermark or with the Ordermark Platform.
6. Ordermark Hardware.
6.1. During the Term of this Agreement, Ordermark shall provide to You, the Ordermark Hardware set forth in the Order Form for Your use solely with the Ordermark Platform.
6.2. The Ordermark Hardware shall remain the exclusive property of Ordermark.
6.3. The Ordermark Hardware is provided to You “AS IS”. In the event of an Ordermark Hardware failure that cannot be reasonably repaired by You, Ordermark shall replace, any such defective Ordermark Hardware at Ordermark’s expense.
6.4. If damages to the Ordermark Hardware are caused by Your misuse, You agree to reimburse Ordermark for the full cost of repairing or replacing the damaged Ordermark Hardware plus shipping costs.
7. Fees, Payment Terms, Taxes
7.1. Unless otherwise set forth in the Order Form, fees for all Ordermark services will begin to accrue upon the earlier of (a) the date in which the first order is processed through the Ordermark Platform, or (b) five (5) days after receipt by Restaurant of the Ordermark Hardware, whichever occurs first.
7.2. Payment is due upon receipt of invoice. If any past due fees have not been received by Ordermark within thirty (30) days from the time such payment is due, Ordermark may suspend or terminate the Ordermark Service at its sole discretion.
7.3. All amounts payable to Ordermark hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Restaurant shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Ordermark’s net income.
7.4. You will provide Ordermark with billing contact and instructions, credit card, bank account, or other mutually agreed upon method for the full payment of all Ordermark fees.
7.5. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We may on a mutually agreed basis change prices at any time. All payments shall be in U.S. dollars.
7.6. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorise us to charge your chosen payment provider for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed.
7.7. All the payments made to Us are non-refundable. You can cancel your subscription at any time by providing us 30 days prior notice to the contact information provided below. Your cancellation will take effect at the end of the notice period of 30 days and you shall be billed accordingly for the notice period term. All subscriptions monthly, quarterly and yearly renew automatically on their due renewal date according to date of purchase until officially cancelled in writing as per this clause and other clauses mentioned in this terms and conditions.
Refund: All the services rendered by Ordermark by UrbanPiper are billed on post paid basis (unless agreed otherwise between the parties) and all payments made to Ordermark by UrbanPiper are non-refundable. Ordermark by UrbanPiper does not refund any fees in that case If you stop using our services in between the term, we will not refund you the fees paid by you for the remaining term.
8. Ownership; Reservation of Rights.
Restaurant acknowledges and agrees that, as between the Parties, Ordermark retains all right, title and interest in and to the Ordermark Platform, including any copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, by whoever produced and all Intellectual Property Rights therein and thereto. Ordermark grants no additional rights, and Ordermark expressly reserves, any and all rights other than the rights expressly granted to Restaurant under this Agreement. Restaurant shall acquire no right, title, or interest in and to the Ordermark Platform other than the limited rights expressly granted under this Agreement. Restaurant will not remove, obscure, or alter any Intellectual Property Rights notices relating to the Ordermark Platform. Ordermark acknowledges and agrees that, as between the Parties, Restaurant retains all right, title and interest in and to the Restaurant Marks and Restaurant Credentials, including any copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto to Restaurant Marks and Restaurant Credentials, by whoever produced them. Restaurant grants no additional rights, and Restaurant reserves, any and all rights other than the rights expressly granted to Ordermark under this Agreement.
9. Term and Termination.
9.1. The term of this Agreement shall commence as of the Effective Date and continue for a twelve (12) month period (“Initial Term”) unless earlier terminated as set forth herein. Following the Initial Term, this Agreement shall automatically renew for additional successive one (1) year periods (each a “Renewal Term”). The Initial Term and each Renewal Term shall collectively be referred to as the “Term”.
9.2. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within sixty (60) days.
9.3. Termination Without Cause. Either Party may terminate this Agreement, at any time during the Initial Term for any reason upon thirty (30) days’ advance written notice to the other Party. With the exception of (i) any Fees which have accrued prior to the last day of the month during which the effective date of termination occurs;
9.4. Effect of Termination. Upon any termination of this Agreement, each Party shall (a) immediately discontinue all use of the other Party’s Confidential Information; (b) at the Disclosing Party’s option and cost, return to the other Party, or delete the Confidential Information of the other Party then in its possession, with written certification of such destruction; and (c) with respect to Restaurant, it shall promptly pay all amounts due and remaining payable hereunder.
9.5. Survival. Sections 1 (Definitions), 3.5, 3.6, 4.3, 7 (Fees, Payment Terms, Taxes), 8 (Ownership; Reservation of Rights), 9.4 (Effect of Termination), 9.5, 9.6, 10 (Confidentiality), 12 (Limitations), 13 (Indemnification), 14 (Binding Arbitration), 15 (General), shall survive termination of this Agreement. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all Restaurant payment obligations accrued hereunder prior to termination or expiration shall survive such termination; and
9.6. Upon any termination of this Agreement, Restaurant shall return to Ordermark, at Restaurant’s expense, all Ordermark Hardware in good operating condition within five (5) business days. Failure to return Ordermark Hardware in good operating condition within the specified time period will result in a charge to You of $350.00 per printer, $150.00 per tablet and $250.00 per cellular modem. Ordermark shall charge Restaurant’s credit card, bank account, or other approved method for any outstanding fees pursuant to this Agreement.
10. Confidentiality.
10.1. Each Party, as a “Disclosing Party” hereunder may disclose Confidential Information to the other Party, a “Receiving Party” hereunder. During the Term of this Agreement and for a two (2) year period thereafter, Receiving Party shall not disclose Disclosing Party’s Confidential Information to any person or entity other than Receiving Party’s employees, agents, advisors and representatives with a need to know the Confidential Information in order to carry out the purpose of this Agreement and who agree to be bound by Receiving Party’s obligations under this Agreement with regard to non-disclosure and use of such Confidential Information (“Representatives”). Receiving Party’s agrees that it shall not, and shall not permit its Representatives to, reverse-engineer, decompile or disassemble any part of, or remove any proprietary marking from, Disclosing Party’s Confidential Information. Receiving Party shall be liable for any breach of this Section 10.1 by its Representatives.
10.2. Receiving Party shall use at least the same degree of care to safeguard and to prevent disclosure to third parties of Confidential Information as it employs to safeguard its own information of a similar nature, but in no event less than reasonable care. Receiving Party shall promptly (i) notify Disclosing Party in writing of the details and circumstances of any unauthorized disclosure, misuse or misappropriation of any of Disclosing Party’s Confidential Information (an “Unauthorized Use”) which may come to Receiving Party’s attention; (ii) use best efforts to rectify or cure such Unauthorized Use and retrieve any such disclosed Confidential Information; and (iii) use best efforts to provide assistance to and cooperate with Disclosing Party to rectify or cure such Unauthorized Use and to prevent further misuse or disclosure of such Confidential Information.
10.3. If Receiving Party becomes legally compelled to disclose any of Disclosing Party’s Confidential Information, Receiving Party shall (i) promptly notify Disclosing Party of such requirement before any disclosure is made so that Disclosing Party may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to Disclosing Party to seek such remedy at Disclosing Party’s expense. If such protective order or other remedy is not obtained, Receiving Party may furnish only that portion of such Confidential Information that, in the opinion of its legal counsel, it is legally required to disclose, and Receiving Party agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
10.4. The Parties acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Section 10, and that any such breach may cause immediate and irreparable harm. Accordingly, each Party agrees that, in the event of any breach or threatened breach of this Section 10 by Receiving Party, Disclosing Party shall be entitled, in addition to all remedies otherwise available at law or in equity, to seek injunctive relief.
10.5. Any feedback or suggestions that Restaurant provides to Ordermark regarding its Ordermark Platform (e.g., bug fixes, features, or functionality requests) (“Feedback”) are non-confidential and may be used by Ordermark for any purpose without acknowledgement or compensation and Restaurant grants Ordermark a royalty-free, fully paid up, worldwide, transferable, sublicensable irrevocable perpetual license to the Feedback; provided, Restaurant will not be identified publicly as the source of the Feedback or suggestion.
11. Representations and Warranties.
11.1. The Parties agree as follows:
(i) Both Parties represent and warrant to the other Party that they are an entity duly incorporated or organized, validly existing, and has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; and (ii) they will comply with all applicable laws in connection with its obligations under this Agreement.
(ii) Restaurant represents and warrants that it has obtained, and that it shall obtain and maintain, all necessary and legally required consents, approvals, or applicable authorization, including any required prior express written consents, in the form and manner from its customers and any related partners as required for the performance of this Agreement contemplated herein and the use of the Ordermark Platform, and the and each component thereof and to grant the licenses set forth in this Agreement.
(iii) During the Term of this Agreement, Ordermark warrants the Ordermark Software provided under this Agreement shall substantially conform to the specifications set forth in Ordermark’s documentation and website.
11.2. No Other Representations. Except for the representations provided in Section 11.1, neither Ordermark nor Restaurant makes any other representations, express or implied, with respect to this Agreement. Neither Ordermark nor Restaurant has relied on any representation, express or implied, in connection with entering this Agreement other than the representations set forth in Section 11.1 above. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE ORDERMARK PLATFORM IS PROVIDED ON AN “AS-IS” BASIS, AND ORDERMARK PROVIDES NO WARRANTY THAT THE PRODUCTS OR SERVICES OFFERED BY ORDERMARK ARE ERROR-FREE OR THAT OPERATION OF THE ORDERMARK PLATFORM WILL BE SECURE OR UNINTERRIPTED OR THAT THE ORDERMARK PLATFORM WILL BE AVAILABLE AT ALL TIMES. ORDERMARK EXPRESSLY DISCLAIMS ANY LIABILITY ASSOCIATED WITH ANY APRODUCTS OR SERVICES NOT PROVIDED BY ORDERMARK, INCLUDING BUT NOT LIMITED TO ANY ONLINE ORDERING SERVICE OR ANY OTHER THIRD-PARTY SERVICE.
12. Limitations.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL DAMAGES OR LOST PROFITS OR BUSINESS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. ORDERMARK’S AGGREGATE LIABILITY TO RESTAURANT OR TO ANY THIRD PARTY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO THE LESSER OF THE AGGREGATE AMOUNTS PAID BY RESTAURANT TO ORDERMARK UNDER THIS AGREEMENT FOR ONE MONTH IMMEDIATELY BEFORE THE RAISE OF SUCH CLAIM OR ONE THOUSAND DOLLARS ($1,000.00). THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
13. Indemnification.
(a) By Ordermark: Ordermark shall indemnify, defend and hold Restaurant harmless from and against any and all loss or damage arising out of a third-party claim, action or allegation (collectively, “Claim”) brought against Restaurant against Restaurant to the extent that such claim results from (i) Ordermark’s gross negligence, intentional wrongdoing or willful misconduct in violation of this Agreement, and (ii) a breach by Ordermark of its representations and warranties under this Agreement. Furthermore, Ordermark shall indemnify, defend and hold Restaurant harmless from and against any and all loss or damage arising out of a third-party claim against Restaurant to the extent that such claim results from any claim that the Ordermark Dashboard infringes, misappropriates or violate any Intellectual Property Right of a third party. Should any of the Ordermark Dashboard software become, or in the Ordermark’s opinion is highly likely to become the subject of a claim, Ordermark may, at its option: (X) obtain the right for Restaurant to continue to use said Ordermark Dashboard; (Y) replace or modify the Ordermark Dashboard with substantially similar software so that it is no longer infringing or reduces the likelihood that it will be determined to be infringing; or (Z) if neither of the foregoing options is commercially reasonable, terminate this Agreement with as much advance notice as is reasonably possible in the event of such termination. Notwithstanding the foregoing, the Ordermark shall have no liability or obligation of indemnity under this Section 13(a) for any claim to the extent it is based on (a) hardware or equipment of a third party, including but not limited to the Online Ordering Services or the Ordermark Hardware, (b) products or services of Ordermark that have been modified by parties other than the Ordermark; (c) Restaurant’s use of the Ordermark’s products or services in conjunction with data or Order Data where use with such data gave rise to the infringement claim; (d) failure of the Restaurant to install upgrades or patches provided by Ordermark where such upgrade or patch would have removed the infringing condition; (e) Restaurant’s use of the Ordermark Services in a manner inconsistent with Documentation provided with such products or services; or, (f) Restaurant’s use of the Ordermark products or services with software or hardware not authorized by Ordermark, where use with, and to the extent such other software or hardware gave rise to the infringement claim. The rights and obligations set forth in this Section 13(a) shall be Restaurant’s sole and exclusive remedy and Ordermark’s sole and exclusive liability with respect to any infringement claims.
(ii) By Restaurant: Restaurant shall indemnify, defend and hold Ordermark and its directors, officers, agents, employees, representatives (collectively “Ordermark Indemnitees”) from and against any Claim or related action against Ordermark Indemnitees to the extent that such claim arises out of or is related to (a) Restaurant’s gross negligence, intentional wrongdoing or willful misconduct in violation of this Agreement, and (b) a breach by Restaurant of its representations and warranties under this Agreement.
(c ) Procedure. The indemnifying Party will indemnify the Party pursuant to this Section 13, provided that (i) the indemnified Party notifies the indemnifying Party in writing promptly after the indemnified Party becomes aware of a Claim (provided that the failure to so notify shall not affect the indemnified Party’s rights to indemnification hereunder unless, and then only to the extent that, the indemnifying Party has been actually prejudiced thereby); (ii) the indemnifying Party has sole control of the settlement, compromise, negotiation, and defense of any such claim (provided that the indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the indemnified Party or admission of liability by the indemnified Party without obtaining the indemnified Party’s prior written consent); and (iii) the indemnified Party cooperates, in good faith, in the defense of any such claim.
14. Binding Arbitration.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration in Delawarebefore a single arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitration shall be administered by JAMS. pursuant to its Arbitration Rules and Procedures and in accordance with any expedited procedures in such Arbitration Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties agree to keep all disputes arising under this Agreement confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision. The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this Agreement. This Section shall not preclude Ordermark or Restaurant from seeking equitable relief to protect their interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction.
15. General Term and Conditions.
15.1. Severability. The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.2. Assignment. Either party has the right to transfer and assign its rights and obligations hereunder to any third-party upon written notice to the other party, provided however that any Restaurant assignee or successor hereunder shall expressly assume liability for all Fees payable pursuant to this Agreement. In the event You sell, transfer or otherwise assign all or substantially all your business and assets, you must notify us within five (5) business days and return all hardware and equipment. Failure to do so will cause the billing outlined in section 9.6 above.
15.3. No Agency and No Third-Party Beneficiaries. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. There are no third-party beneficiaries to the Agreement. Ordermark and Restaurant acknowledge and agree they are acting as independent contractors in making and performing this Agreement.
15.4. Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
15.5. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if sent by personal delivery; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested or three (3) days after deposit with the United States Postal Service (when sent first class mail, postage pre-paid). Notices must be sent to the address set forth for each Party on the Order Form.
15.6. Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
15.7. No Waiver. Failure of either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
15.8. Entire Agreement. This Agreement (including Order Form(s) are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, or in a writing acknowledged and accepted by both Parties (ex: an email or a click-through modification shall suffice).