This Agreement (the "Agreement") is a legal agreement between the restaurant set forth on the registration page ("You" or "Restaurant") and App2Food, Inc. ("App2Food"). This Agreement specifies the terms under which You may use the Platform and the Tablet. Please read this Agreement carefully before accessing the Platform or the Tablet, because by accessing the Platform or Tablet, clicking "I Agree," or otherwise manifesting your assent to this Agreement, You agree to be bound by the terms of this Agreement. If You do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or Tablet. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of binding it to this Agreement. The definitions for some of the defined terms used in this Agreement are set forth in Section 12. The definitions for other defined terms are set forth elsewhere in this Agreement. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and App2Food (collectively, the "Parties" and each, a "Party") hereby agree as follows:.
SUBSCRIPTION TO THE PLATFORM; LICENSES; TABLET COMPUTER AND WIRELESS PRINTERS; RESTRICTIONS ON USE.
1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, App2Food hereby
grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted
under Section 11 below) right to authorize Users to access and use the Platform.Restaurant shall be
responsible to App2Food for any and all acts or omissions of the Users. App2Food reserves the right to
change the availability of any feature, function, or Content relating to the Platform, at any time, without
1.2 License Grants to Restaurant Content and Restaurant Marks. (a) Subject to the terms of this Agreement, Restaurant hereby grants to App2Food during the Term: (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publiclydisplay, and publicly-perform the Restaurant Content, in whole or in part, through the Platform.App2Food's license to modify the Restaurant Content is limited to modifying it to fit the format of the Platform; and (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publiclyperform the Restaurant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant; and (2) with the prior consent of Restaurant, in connection with the marketing, advertising, and promotion of App2Food and the Platform; provided, however, that pursuant to Section 10, App2Food may list Restaurant as a client of App2Food and a user of the Platform without having to obtain Restaurant's consent. All goodwill generated by App2Food's use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant. (b) App2Food shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or App2Food badges or widgets embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to App2Food with respect to the use of the Restaurant Content and the Restaurant Marks.
1.3 Tablet Computer and Wireless Printers. (a) App2Food shall deliver to You or shall have delivered on its behalf a tablet computer fully configured for the Platform, along with certain additional equipment, such as a stand, charger, and other peripherals (collectively, the "Tablet"). In additional, as an optional feature, You may purchase or lease wireless receipt printers through App2Food (the "Wireless Printers"). You shall promptly, and in no event more than five (5) business days after App2Food's delivery of the Tablet and, if applicable, any Wireless Printers, inspect them and confirm in writing that they are in good repair and condition and that You are satisfied with and have accepted them. In the event You discover a defect with the Tablet and/or any Wireless Printer, You shall promptly, and in no event more than one (1) business day of discovery of such defect, notify App2Food in writing of such defect. If You fail to provide App2Food with the notification described in this Section with respect to the Tablet and/or any Wireless Printer, You shall be deemed to have accepted them. In the event that You timely and properly reject the Tablet and/or any Wireless Printer in accordance with this Section, App2Food shall be responsible for contacting the appropriate supplier(s) and/or manufacturer(s) and either obtaining a replacement or ensuring that the Tablet and/or the Wireless Printer are properly repaired. (b) APP2FOOD, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE TABLET OR THE WIRELESS PRINTERS NOR THE SUPPLIERS' OR MANUFACTURERS' AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE TABLET OR THE WIRELESS PRINTERS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST. (c) You acknowledge and agree that the Tablet is being leased to You, at no cost, for use solely in connection with the Platform pursuant to this Agreement. In addition, if You are leasing any Wireless Printers, You acknowledge and agree that they are being leased to You, at the prices set forth on the Platform on the Pricing page, for use solely in connection with the Platform pursuant to this Agreement. For the avoidance of doubt, You shall not (and shall not permit any third party) to use the Tablet and/or any leased Wireless Printers for any purpose other than to connect to the Platform.Such prohibited activities include, without limitation, using the Tablet and/or any leased Wireless Printers to: (i) process in-house orders not processed through the Platform; (ii) play games; (iii) use mobile applications; (iv) access the Internet; or (v) print anything other than Orders. You shall use the Tablet and/or any leased Wireless Printers in a careful and proper manner in conformity with their instructions and manuals and all applicable laws. In addition, You shall not use the Tablet or any leased Wireless Printers in any manner that could reasonably be expected to impair the applicability of suppliers' and/or manufacturers' warranties or render them unfit for their originally intended use nor permit any person other than authorized and competent personnel to operate them. (d) Title to the Tablet and any leased Wireless Printers shall at all times remain in App2Food. You shall have no right, title, or interest in or to the Tablet or any leased Wireless Printers except the right to possession and use thereof during the Term and pursuant to the conditions in this Agreement. The Tablet and any leased Wireless Printers shall remain personal property, notwithstanding the manner in which they may be affixed to any real property. You shall at all times protect and defend, at Your own cost and expense, the title and interest of App2Food from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of You and keep the Tablet and any leased Wireless Printers free and clear from all such claims, liens, processes, and any other encumbrance. You shall not sublease, transfer, or dispose of the Tablet or any leased Wireless Printers or grant or permit any lien on them. You agree that You will not mortgage or otherwise encumber the Tablet or any leased Wireless Printers. (e) App2Food shall have the right to mark the Tablet and any leased Wireless Printers in a distinct and conspicuous manner with the name of App2Food followed by the words "Property of App2Food" or other appropriate words designated by App2Food. You shall not alter, deface, or remove any of App2Food's ownership identification plates or markings and, upon App2Food's request, You shall affix or re-affix such identification. (f) The Tablet and any leased Wireless Printers shall be located in the Restaurant, and You shall not remove, or permit (by act or omission) them to be removed from the Restaurant without the prior written consent of App2Food. (g) You shall immediately notify App2Food of any problems with the Tablet and/or any leased Wireless Printers, and shall use Your best efforts to work with App2Food to pursue any warranty claims that App2Food may have in relation to them. As between the Parties: (i) App2Food shall be responsible for all repair and maintenance of the Tablet and any leased Wireless Printers; provided, however, that You shall be solely responsible for the costs of any repairs and maintenance necessitated by Your negligence or misuse of them; and (ii) You shall be responsible for all repair and maintenance of any Wireless Printers that You purchase. (h) Upon the expiration or termination of this Agreement, or at any other time upon demand by App2Food, You, at Your sole expense, shall, as directed by App2Food, either (i) return the Tablet and any leased Wireless Printers to App2Food by delivering them in a manner consistent with the manufacturers' recommendations and practices to such place or on board such carrier (packed properly and in accordance with the manufacturers' instructions) as App2Food shall specify, or (ii) fully cooperate with App2Food in the disposition of the Tablet and any leased Wireless Printers. You shall ensure that the Tablet and any leased Wireless Printers will be returned to App2Food free and clear of all claims, liens, processes, and any other encumbrances and in the same condition as when delivered to You, reasonable wear and tear excepted. At any time, upon any total or partial loss of or damage to the Tablet and/or any leased Wireless Printers during the Term, You shall be responsible for, and App2Food may automatically draw against Your credit card or bank account provided during the registration process, the value to replace or repair them, in whole or in part.
1.4 Restrictions on Use. Restaurant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Branded Apps, the Data, or the Tablet that is not expressly permitted under this Agreement. Without limiting the foregoing, Restaurant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Branded Apps; (ii) modify, adapt, translate, or reproduce the Platform or the Branded Apps; (iii) resell, distribute, or sublicense the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; make the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers available on a "service bureau" basis, or otherwise allow any third party to use or access the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; (v) use the Platform, the Branded Apps, the Data, the Tablet, or any leased Wireless Printers in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (vi) introduce into the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers any software, virus, worm, "back door," Trojan Horse, or similar harmful code.
REGISTRATION AND MAINTENANCE OF ACCOUNT.
2.1 Registration. During the registration process, App2Food requires You to create an account, which
may include a unique sign-in name ("Sign-In Name"), password ("Password"), and perhaps certain
additional information that will assist in authenticating You when Your Users log into the Platform in the
future ("Unique Identifiers"). When creating the account, You must provide true, accurate, current, and
complete information.Restaurant is solely responsible for the confidentiality and use of Your Sign-In
Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered
through the Platform using one or more of them. You will promptly inform App2Food of any need to
deactivate a Password or Sign-In Name, or change any Unique Identifier. App2Food will not be liable for
any loss or damage caused by any unauthorized use ofYour account.
2.2 Maintenance of Account. As App2Food's business evolves, it may require additional information, authorizations, and permissions from Youafter You register in order to provide You access to and usage of the Platform and perform its other obligations under this Agreement. When requested by App2Food, You shall promptly provide all such information, authorizations, and permissions in accordance with App2Food's request.When doing so, You shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to You or immediate termination of Your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so App2Food can comply with its Know Your Customer obligations), App2Food shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.
FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
4.1 Fees; Refund Policy. As consideration for the rights granted in Section 1, Restaurant shall pay
App2Food its then-current fee (the "Subscription Fee") for the applicable subscription period selected
by Restaurant and any of its then-current set-up fees ("Set-Up Fees"). Additionally, if Restaurant orders
any optional features through the functionality of the Platform (e.g., LTE connectivity and Wireless
Printers), it shall pay App2Food's then-current add-on fees (the "Add-On Fees" and collectively with the
Subscription Fees and the Set-Up Fees, the "Fees"). App2Food may modify the Fees at any time on
written notice to Restaurant, and any such modification shall go into effect thirty (30) days after such
notice. The Subscription Fee shall be locked for the first year of any annual subscription. Click here to
view App2Food's refund policy, which is hereby incorporated into and made part of this Agreement.
4.2 Payments to App2Food. App2Food shall authorize Restaurant's credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees, and Restaurant hereby consents to the same. All payments will be charged and made in U.S. dollars. Fees shall begin to accrue and be charged within twenty-four (24) hours after Restaurant receives the Tablet in accordance with Section 1.3.Within thirty (30) days after termination of this Agreement, App2Food shall charge Restaurant's credit card, bank account, or other approved facility for any outstanding Fees.
4.3 Payments to Restaurant. (a) App2Food uses IPayment, ("IPayment"), to collect credit card payments in connection with Orders. If You elect to use IPayment's payment processing services, You must enter into the Merchant Services Agreement ("MSA") with IPayment and its sponsoring bank. By accepting this Agreement and selecting IPayment's services, You agree: (i) that You have downloaded or printed the MSA; and (ii) that You have reviewed and agree to the MSA. Please note that App2Food is not a party to the MSA and that You, IPayment, and IPayment's sponsoring bank are the three parties to the MSA and that App2Food has no obligations or liability toYou under the MSA. If You have questions regarding the MSA, please contact IPayment. (b) If You elect to use IPayment's payment processing services, the next business day after an Order settles, which can be one (1) to three (3) business days from the actual Order date (depending upon Your bank's settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; and (ii) the following credit card transaction charges: To the extent returns cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize App2Food and/or IPayment to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a weekly basis. For the avoidance of doubt, App2Food assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(b). (c) RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT APP2FOOD IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT IPAYMENT FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT'S SOLE RECOURSE SHALL BE DIRECTLY AGAINST IPAYMENT PURSUANT TO THE MSA. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES APP2FOOD FROM ANY AND ALL CLAIMS ARISING OUT OF IPAYMENT'S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS. (d) If You elect not to use IPayment to collect credit card payments in connection with Orders, Section 4.3(a) through Section 4.3(c) shall not apply.
4.4 Taxes. You shall: (i) ensure that the tax rates set forth in Your App2Food dashboard are correct; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and the processing of such Orders for Customers (excluding any taxes imposed or based on App2Food's income).
4.5 Subscription Plans. At any time during the first year of the Term, Restaurant, if it originally selected a month-to-month subscription, may convert to an annual subscription plan on thirty (30) days' notice to App2Food. After the first year of the Term, if the Restaurant originally selected an annual subscription, such subscription shall be automatically converted to a month-to-month plan for the remainder of the Term. Restaurant may add new locations at any time during the Term on notice to App2Food, including through the Platform, via e-mail, or by phone.
TERM AND TERMINATION
5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either
Party in accordance with Section 5.2below (the "Term").
5.2 Termination. Either Party may terminate this Agreement: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any or no reason, upon thirty (30) days prior written notice to the other Party (without penalty or liability).
5.3 Effect of Termination. Upon termination of this Agreement: (a) Restaurant shall be paid any amounts payable under Section 4.3(b); (b) App2Food shall charge Restaurant's credit card, bank account, or other approved facility for any outstanding Fees pursuant to Section 4.2 and any other amounts due under this Agreement; and (c) All rights and licenses granted hereunder will immediately cease, and Restaurant will immediately cease all access to and use of the Platform and return the Tablet and any leased Wireless Printers as set forth in Section 1.3.
5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.3 ("Tablet Computer"); Section 5.3 ("Effect of Termination"), Section 6 ("Ownership"), Section 7 ("Representations and Warranties; Disclaimer"), Section 8 ("Limitation of Liability"), Section 9("Indemnification"), Section 11 ("Miscellaneous Provisions"), Section 12 ("Definitions"), and this Section 5.4 ("Survival").
6.1 Intellectual Property. App2Food owns and shall own all right, title, and interest in and to the Platform
and the Branded Apps, including all source code, object code, operating instructions, and interfaces
developed for or relating to the Platform and/or the Branded Apps, together with all modifications,
enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative
works thereto, including all copyrights and other intellectual property rights relating thereto. Restaurant
will have no rights with respect to the App2food Intellectual Property other than those expressly granted
hereunder. Restaurant owns and shall own all right, title, and interest in and to the Restaurant Content
and the Restaurant Marks, including all copyrights and other intellectual property rights relating thereto
(the "Restaurant Intellectual Property"). App2Food will have no rights with respect to the Restaurant
Intellectual Property other than those expressly granted hereunder. In addition, Restaurant shall own
all Data; provided, however, that Restaurant hereby irrevocably grants App2Food a perpetual, royalty
free, non-exclusive, sublicensable, assignable license to reproduce and use such Data to perform its
6.2 Usage of Data. Although Restaurant owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and App2Food's privacy policies.
6.3 Your Content: By using our Services you provide us with information, and files that you submit to App2Food. You retain full ownership to your content. We don't claim any ownership to any of it. These Terms do not grant us any rights to your content or intellectual property except for the limited rights that are needed to run the Services.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full
right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to
grant the licenses granted hereunder; (ii) it shall comply with all applicable federal, state, and local
laws, rules, and regulations in the conduct of its business and in the performance of its obligations under
this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, and
unfair business practices; and (iii) the execution and delivery of this Agreement by it and the
performance of its obligations hereunder are not in violation or breach of, and will not conflict with or
constitute a default under, any contract, agreement, or commitment binding upon it, including, with
respect to Restaurant, any franchise agreement.
7.2 Additional Representations and Warranties of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents and warrants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform; (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Order shall be as favorable as those extended to its other customers not using the Platform; (iv) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order that includes alcohol, Restaurant shall abide by such laws, including, without limitation, checking Customer's ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; (v) the Restaurant Content and the Restaurant Marks and App2Food's exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (vi) Restaurant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with App2Food's use of the Restaurant Content and the Restaurant Marks and/or App2Food's exercise of any license granted hereunder, and App2Food shall not be obligated to pay any fees in connection therewith.
7.3 Disclaimer. APP2FOOD CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY APP2FOOD HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE." APP2FOOD MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO APP2FOOD HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (I) DAMAGES ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) A PARTY'S INDEMNIFICATION OBLIGATIONS; OR (III) ANY DAMAGE TO OR LOSS OF THE TABLET.
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party's officers, directors, employees, attorneys, and agents (collectively, the "Indemnified Parties") from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, "Losses") incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, You shall indemnify, defend, and hold harmless the App2Food Indemnified Parties from and against any and all Losses incurred by such App2Food Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Your breach or alleged breach of Section 4.4; (ii) an Adverse Event; or (iii) the processing of Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
During the Term, App2Food shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that You are a client of App2Food and a user of the Platform. In addition, upon the reasonable request of App2Food, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. Thespecific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, You, if requested by App2Food, shall make one (1) or more representatives available for a strategic press interview.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party's prior written consent, except to a successor to all or substantially all of that Party's assets or business (for which no consent of the other Party is required). This Agreement shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Los Angeles, CA pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, App2Food may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement is 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. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that App2Food may modify this Agreement at any time by posting such modification on Your individual account in Your admin.App2Food.com dashboard, and any such modification shall go into effect sixty (60) days after it is so posted. It is Restaurant's responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
12.1 "Adverse Event" means any negative symptoms experienced by Customers that are associated
with the handling and/or consumption of any items in an Order.
12.2 "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
12.3 "Branded Apps" means the Restaurant-branded mobile applications set up by App2Food.
12.4 "Customer" means a party that submits Orders through App2Food via the Platform.
12.5 "Data" means data collected by or through the Platform, including, without limitation the PII of Customers.
12.6 "Effective Date" means the date You accepted this Agreement.
12.7 "Intellectual Property" has the meaning specified in Section 6.
12.8 "Menu" means Your menu submitted to App2Food, as updated by You from time to time.
12.9 "Order" means a meal order for Your food and/or beverages submitted by Customers through App2Food via the Platform.
12.10 "Personally Identifiable Information" or "PII" means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
12.11 "Platform" means the social and mobile meal-ordering platform provided by App2Food, which may be amended by App2Food from time to time, including: (i) the Tablet; and (ii) the Branded Apps.
12.12 "Restaurant Content" means any content submitted by You to App2Food, including, without limitation, the Menu.
12.13 "Restaurant Marks" means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
12.14 "Term" has the meaning specified in Section 5.1.
12.15 "User" means an employee or agent of Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.
. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS..