Please read the terms of this Services Agreement (“Agreement”) carefully because it governs your (“Customer’s,”“you,” “your”) use of the services provided by Cookdash, Inc., d.b.a. Forward Kitchens (“Company,” “we,” “us,”“our”).
By signing up for or using any Company services, you agree to be bound by this Agreement. If you have accepted the terms of this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, the term “Customer,”“you,” and “your” will refer to that entity.By accessing this website we assume you accept these terms and conditions. Do not continue to use Website Name if you do not agree to take all of the terms and conditions stated on this page.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THIS AGREEMENT, YOU ARE AGREEING TO RESOLVE ANY DISPUTE BETWEEN YOU AND COMPANY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT.PLEASE REVIEW CAREFULLY SECTION 16 “GOVERNING LAW; DISPUTE RESOLUTION”BELOW FOR DETAILS REGARDING ARBITRATION.
Company will provide Customer the following services (“Services”): setup new virtual restaurant brands, creating customized menus and developing branding concepts for such restaurants (the “Brands”) (to be mutually agreed by the parties in writing, including via electronic communication) to be launched onDelivery Platforms serving items from Customer’s current menu offerings through Customer’s existing restaurant(s) (the “Original Menu”). Company will also create for the Brands new concepts based on theOriginal Menu and may create new menu items (collectively, the “Virtual Menu Items”) as decided by the parties. Upon mutual agreement (including via electronic communications), Company and Customer may add or remove additional Brands and menu items. Further, if mutually agreed in writing by the parties (via electronic communications), Company will also manage the Customer’s relationships with the DeliveryPlatforms as part of the Services. “Delivery Platforms” means third party delivery and listing platforms, including but not limited to Seamless, Grubhub, Uber Eats and DoorDash. Company may, in its discretion, add or remove Delivery Platforms during the term of this Agreement.
The parties shall complete the following actions and satisfy the following requirements:
(a) Customer will provide to Company professional photographs of selected menu items (subject to Company approval), or provide Company the menu items and a location for Company to arrange for a professional photographer to take photographs of such menu items.
(b) Company will evaluate marketing, branding and promotional efforts specific to Customer.
(c) Customer will use the order aggregation tablet and printer provided by Company to receive orders from the Delivery Platforms, unless otherwise agreed by the parties in writing.
(d) Customer hereby irrevocably appoints Company as Customer’s attorney-in-fact, with such power coupled with an interest, to execute documents and take other actions required on Customer’s behalf for the purpose of creating accounts with Delivery Platforms on behalf of Customer, to operate and amend such accounts without prior notice to Customer, and to otherwise effect the services contemplated by thisAgreement (as all set forth on Exhibit A).
(a) Intellectual Property Rights: “Intellectual Property Rights” means all intellectual property rights or other similar rights throughout the world, however designated, including but not limited to, patent rights, inventions (whether or not patentable), copyrights and works of authorship (whether or not copyrightable),domain names, trademarks, trade names, trade dress, logos, mask works, know-how, rights in software(including all source code, object code and associated documentation), algorithms, data and databases, designs, improvements, proprietary information (including but not limited to customer lists and pricing and business plans) and trade secret rights, together with all registrations and applications for registration of, and all goodwill associated with, any of the foregoing.
(b) Company IP: Customer acknowledges that, as between Customer and Company, Company owns all right, title and interest, including all Intellectual Property Rights, in and to the: (i) Brands (including any names, trademarks, service marks, trade names or logos of Company contained therein (collectively, the “Company Marks”), and any marketing and advertising thereof), (ii) Virtual Menu Items (including recipes thereof which shall constitute a Company trade secret), (iii) photos and images of menu items paid for by Company, (iv) Services, including any and all improvements, enhancements or modifications thereto, any software, applications, inventions or other technology developed in connection with this Agreement, and (v) any suggestions, ideas, enhancement requests, feedback, recommendations and other data or information provided by Customer or any other party relating to the Services (“Feedback”)(collectively, the “Company IP”). Further, Company owns all right, title and interest, including allIntellectual Property Rights, in and to any data or statistics compiled or collected hereunder (“CompanyData”). To the extent that any Intellectual Property Rights in any Company IP or Company Data vest inCustomer, Customer will, and hereby does, assign any right, title, or interest in or to the Company IP andCompany Data to Company. Company reserves all rights not expressly granted to Customer under this Agreement.
(c) Customer IP: Company acknowledges that, as between Company and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer’s intellectual property that exists prior to entering into this Agreement and all derivative works thereof, such asCustomer’s name and trademarks, the Original Menu, recipes for the Original Menu items, and photos and images of menu items provided by Customer (collectively, the “Customer IP”).
(d) License to Customer IP: Customer hereby grants to Company an irrevocable, perpetual, nonexclusive, full paid-up, royalty-free, transferable, and worldwide right and license to the Customer IP, with rights to sublicense through multiple levels of sublicensees, to reproduce, distribute, publicly display, publicly perform, modify, prepare derivative works based upon, and otherwise use and exploit such Customer IP to provide the Services under this Agreement. The foregoing grant enables Company to use and otherwise exploit, in any manner, Customer IP in connection with any and all: (i) products marketed and distributed under any Brand (including any future product(s), service(s) or business(es) derived therefrom); and (ii)Virtual Menu Items.
(e) License to Company IP: Company hereby grants to Customer a limited, revocable, non-exclusive, nontransferable, non-sublicensable right and license to use the Company IP to the extent such Company IP is incorporated into the Virtual Menu Items during the term of this Agreement solely to arrange, prepare, cook, assemble and package any Virtual Menu Item in connection with the fulfillment of orders. All goodwill and improved reputation generated by Customer’s use of the Company Marks inures to the exclusive benefit of Company.
(f) Restrictions: Customer will not use any Company IP except as expressly provided in Section 3(e) above.Without limitation, Customer will not: (i) use any Company Mark as part of its name or in connection with any business, or adopt, use or attempt to register any trademark, service mark or trade name that is confusingly similar to any of the Company Marks; (ii) directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Brands or Virtual MenuItems or to take any other action which may adversely affect Company’s rights or interest in the Brands or Virtual Menu Items in any jurisdiction; (iii) otherwise violate, contest, challenge, directly or indirectly, any rights or interest of Company, including any proprietary rights, related to the Brands or Virtual MenuItems; (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on theBrands; (v) make any modification or enhancement to, or any derivative works of, the Brands or VirtualMenu Items, or any portion thereof; (vi) frame, mirror, copy, sell, resell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Brands, Virtual Menu Items or Services; or (vii) use theBrands or Virtual Menu Items to create or launch a virtual restaurant or service that competes in the marketplace with the Brands or Virtual Menu Items.
The term of this Agreement will start on the date Customer accepts this Agreement and continue in effect until terminated by either party in accordance with this Agreement. Either party may terminate this Agreement for convenience by providing ten (10) days’ written notice to the other party. Either party may also terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement. Upon termination of this Agreement, all licenses from Company toCustomer set forth in Section 3(e) shall terminate and Customer will cease all display, advertising, promotion, and use of all of the Brands and Virtual Menu Items created under this Agreement. Customer will return or destroy, at Company’s sole option, all Company Proprietary Information in its possession or control, and atCompany’s request, certify in writing to Company that the Company Proprietary Information has been returned, destroyed or, in the case of electronic communications, deleted. No termination will affectCustomer’s obligation to pay all fees that may become due or otherwise accrue through the effective date of termination, or entitle Customer to any refund.
(a) Services Fees:
i) For the Brands: Company’s services fee is the percentage of Gross Sales as set forth in the applicable sign up sheet for each Brand in operation. “Gross Sales” means the gross amount paid to a DeliveryPlatform by a customer for food, beverages, and other items constituting an order (excluding taxes, order delivery fees, and driver gratuities).
ii) For the Customer’s Restaurants: If Customer elects to have Company manage Customer’s relationships with the Delivery Platforms for its restaurants, then Customer will pay Company the services fee set forth in the applicable sign up sheet or quote issued by Company, without offset and deduction.
(b) Marketing Costs: Customer will pay Company for the costs of any marketing program that Company runs on their behalf on the Delivery Platforms. In addition, there may be additional costs agreed upon by the parties related to other marketing endeavors that Company undertakes after consultation withCustomer.
(c) Tablet/Printer Fees: Customer will pay the following fees for use of the order aggregation tablet andprinter provided by Company:
(i) $5.00 per week for the tablet, and
(ii) $10.00 per week for the printer.
(d) Dispute Resolution Fees: As part of the Services, Company will seek reimbursement of cancelled orders, fees and commissions for the Brands and Customer’s restaurant(s), if applicable, from the DeliveryPlatform(s). Customer will pay Company the services fee set forth in the applicable invoice issued byCompany for all amounts recovered from an applicable Delivery Platform.
e) Third Party Fees: Customer is responsible for any required Delivery Platform fees. In addition, Customer is responsible for any ongoing costs relating to the usage of third party listing services including but not limited to any service and delivery fees and commissions.
(f) Delivery Platform Fee Discount Program: Company may, from time to time, offer a program in which participating restaurants receive discounts as a result of Company’s relationships with the DeliveryPlatforms (“Platform Discount Program”). If Customer participates in the Platform Discount Program,Company will reduce the services fees described in Section 5(a)(i) above for the term of such participation by a percentage determined by the Company based on: (a) the particular Delivery Platforms offering discounts to Company customers and (b) the amount of such discounts. Customer acknowledges thatCompany may itself receive rebates, discounts, or other benefits from the Delivery Platforms in exchange for the total business transacted through the Delivery Platforms by Company customers (includingCustomer). Company will be entitled to retain, and Customer will have no interest in, such benefits.Company may terminate the Platform Discount Program or Customer’s participation in it at any time.
(a) Payments to Customer: Company will deduct the services fees, marketing costs, tablet/printer fees and third party fees from the payments received from the Delivery Platforms for orders from each applicableBrand, including such payments recovered from the Delivery Platforms for cancelled orders from each applicable Brand and/or Customer’s restaurant(s), if any, and remit the remaining amount to Customer as payment for Customer’s order fulfillment services. All costs and fees shall be deducted from the proceeds of the sales on the Delivery Platforms. Customer is responsible for remitting any sales taxes to the applicable government agencies. Company shall disburse the proceeds after deducting applicable costs and fees to Customer every two (2) weeks.
(b) Payments to Company: If applicable, Company will issue monthly invoices to Customer for the Services provided by Company to Customer for its restaurants, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Company will charge Customer’s selected payment method (such as a credit card) for any fees on the applicable payment date, including any applicable taxes. If Company cannot chargeCustomer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Company will attempt to charge the payment method again as Customer may update its payment method information. Customer is responsible for all applicable taxes and charges of any kind imposed by the applicable government agencies on any amount payable by Customer to Company hereunder, other than any taxes imposed on Company’s income.
(a) Service and Quality Requirements: Customer is responsible for maintaining an acceptable level of quality in accordance with industry standards when operating under the Brands. The service and quality requirements include but are not limited to:
i) Quality of Food: Customer shall maintain consistent food quality, as evidenced by reviews on theDelivery Platforms, and use commercially reasonable efforts not to receive sub-par quality and low ratings/unmitigated negative reviews, sustained declines in reviews or deviate from the initial food quality.
ii) Presentation and proper attribution to the Brands: Customer shall apply the correct branding materials (logos, stickers, bags etc.) and use the correct containers for each Brand based on the order received from the Delivery Platform.
iii) Orders/operating hours: Customer shall use commercially reasonable efforts to maintain the percentage of order errors under 2% of the total orders per month (as indicated by the DeliveryPlatform metrics), and Customer shall not materially change its normal operating hours.
(b) Fulfillment of Orders: When Customer receives an order through the applicable Delivery Platform,Customer shall promptly arrange, prepare, cook, assemble and package each item specified in the order in a manner consistent with Customer’s arrangement, preparation, assembly, and packaging of Customer’s similar products for direct sales. Customer will use commercially reasonable efforts to adhere to any alterations or specifications with respect to preparation, assembly, and packaging, and including without limitation specific ingredients and recipes, as Company may direct Customer to follow in writing (email accepted) from time to time with respect to the orders. To the extent required by the Delivery Platform,Customer will provide all necessary ingredient, allergy and caloric information for each menu item and all products or services marketed and distributed under a Brand pursuant to this Agreement. Customer will be responsible for complying with any and all Delivery Platform requirements with respect to each order.
(c) Virtual Menu Items: From time to time, Company may request that Customer arrange, prepare, cook, assemble and package Virtual Menu Items for a Brand as agreed upon in advance by Customer. Customer shall promptly arrange, prepare, cook, assemble and package each Virtual Menu Item in accordance withCompany’s instructions.
(d) Delivery Platform Obligations: Customer acknowledges and agrees that
(i) the Delivery Platforms are provided by third parties;
(ii) Company has no responsibility for the Delivery Platforms; and
(iii) it will hold Company harmless from any act or omission of any representative of the Delivery Platform.Customer acknowledges and agrees that Customer’s use of the Delivery Platforms shall be subject to (andCustomer agrees it is bound by) each Delivery Platform’s terms and conditions, as they may be modified from time to time (the “Delivery Platform Terms”). The Delivery Platform Terms are hereby incorporated into this Agreement by this reference. In addition, Customer shall be solely responsible for any and all liability relating to the interaction between Customer and the Delivery Platforms and its customers, including bearing the full cost of refunds, credits or re-orders for the Delivery Platform customers and any liability arising from the delivery of alcoholic beverages with the orders to such customers, in accordance with the applicable Delivery Platform Terms.
(e) Exclusivity: Customer agrees during the term of this Agreement, Company will be the sole and exclusive provider of the Services to Customer. Customer acknowledges that Company may expend significant time and resources to market and develop products and services marketed and distributed under the Brands as well as the Virtual Menu Items. As such, Customer agrees that, during the term of this Agreement,Customer shall not directly or indirectly advertise, market and/or facilitate the sale and/or delivery of anyVirtual Menu Items on the Delivery Platforms under any brands other than the Brand without the prior written consent of Company. For the purpose of clarity, the foregoing restriction shall not preventCustomer from selling the Original Menu items through Customer’s restaurant(s).
(f) Non-Circumvention: During the term of this Agreement, Customer shall not directly or indirectly solicitor entice, or attempt to solicit or entice, any customers of the Brands for purposes of diverting their business from the Brands to Customer’s restaurant(s). For purpose of clarity, the foregoing restriction shall not prevent Customer from soliciting any customer that it can demonstrate was a customer of its restaurant(s) prior to the launch of the Brands.
(g) Non-disparagement: Customer acknowledges and agrees that in no case shall Customer disparage or denigrate the Brands or products or services of Company, or do or omit to do anything that may adversely affect the reputation of Company, including in any form of communication, marketing or promotion.
Customer represents, covenants, and warrants that Customer will comply with all applicable laws and regulations, including retail food, alcoholic beverage or other health and safety code, rule, or regulation in its performance under this Agreement.
Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, internet connection, counter space, kitchen licenses, ingredients, cookware etc. (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment and if provided, Customer account, passwords(including but not limited to administrative and user passwords) and files, and for all uses of Customer account or Equipment with or without Customer’s knowledge or consent.
Customer, at its sole expense, agrees throughout the term of this Agreement, and for one (1) year thereafter, to maintain: (a) a commercial general liability (including product liability) insurance policy in amounts not less than as required by law or that is common practice among prudent, professionally managed companies in such party’s business; (b) workers’ compensation insurance and (c) food borne illness insurance in such amounts as Company shall require from time to time. All insurance maintained by Customer shall (i)be in a form reasonably satisfactory to Company, with an insurance carrier reasonably satisfactory toCompany; and (ii) be primary insurance and any insurance carried by Company or its affiliates shall be excess insurance only. All such insurance shall be subject to modification or cancellation only upon ten (10) days’ notice to each certificate holder and to Company. Customer, promptly following Company’s request, shall furnish Company with a certificate of insurance in such coverage, such certificate to be in a form acceptable to Company.
Each party (“Receiving Party”) understands that the other party(“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating toDisclosing Party’s business (hereinafter referred to as “Proprietary Information” of Disclosing Party).Proprietary Information of Company includes but is not limited to non-public information, inventions, processes, methods, products, know-how, trade secrets, patent applications, and other proprietary information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes only non-public data regarding operations history provided by Customer to Company to enable the operations contemplated by this Agreement (“Customer Data”). Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except as necessary to perform its obligations under this Agreement or as otherwise permitted herein) or divulge to any third person any suchProprietary Information, except to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Proprietary Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, for a period of five (5) years following the disclosure thereof, provided, however, with respect to any Proprietary Information that constitutes a trade secret (as determined under applicable law),such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Proprietary Information remains subject to trade secret protection under applicable law. Disclosing Party agrees that the foregoing will not apply with respect to any information that Receiving Party can document:is or becomes generally known or available to the public through no act or failure to act by the ReceivingParty; was rightfully in its possession or known by Receiving Party prior to receipt from Disclosing Party; was rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; was independently developed without use of or access to any Proprietary Information of Disclosing Party; or is required to be disclosed by the order or requirement of a court, administrative agency or other governmentalbody, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow theDisclosing Party to seek a protective order or otherwise contest the disclosure.
(a) Customer shall, at its sole expense, indemnify, defend and hold Company and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers, shareholders, members, and representatives (collectively, “Indemnities”) harmless from and against any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and costs) (collectively, “Losses”) incurred in connection with any judicial or non-judicial claim, action, demand, suit or proceeding (collectively,“Claims”) brought against an Indemnity insofar as such Claim is based upon allegations relating to: (i)Customer’s restaurant(s), the Original Menu, Customer’s Equipment and other property, or Customer’s employees (including, without limitation, Claims relating to taxes owed in connection with the sale of the menu items or food safety and illness, injury, death, or damage as a result of the delivery, consumption or use of any menu item); (ii) fulfillment of any order; (iii) use of the Brands, Virtual Menu Items orServices not in accordance with the terms of this Agreement, (iv) Customer’s failure to comply with all applicable laws and regulations or (v) any breach or alleged breach of this Agreement. Customer may not settle or otherwise dispose of any Claim against an Indemnity without Company’s prior written approval.This Section 12 does not affect Company’s liability for death or personal injury arising from its own gross negligence, nor its liability for any other liability which cannot be excluded or limited under applicable law.
(b) Indemnification Procedure: Customer will be notified in writing of any such Claim above and permitted to defend and compromise such Claim, except that Company’s consent is required for those compromises or settlements imposing any financial obligation or admission of liability upon Company or involvingCompany’s Intellectual Property Rights, such consent not to be unreasonably withheld. Company will have the right but not the obligation to employ separate counsel and participate in the defense of any suchClaim(s) at Company’s sole cost. If Customer does not assume or conduct the defense on behalf ofCompany: (i) Company may defend against and consent to the entry of any judgment or enter into any settlement with respect to any Claim in any manner it reasonably deems appropriate and Company need not consult with or obtain any consent from Customer in connection with any such defense, consent or settlement; (ii) Customer will remain responsible for any Claims and Losses Company may suffer resulting from, arising out of, relating to, in the nature of or caused by any third party Claims to the fullest extent provided herein; and (iii) Customer will remain responsible and will reimburse Company for anyClaims and Losses Company may pay, incur or otherwise suffer resulting from, arising out of, relating to, in the nature of, or caused by such third party Claims, and this obligation will survive the termination or expiration hereof.
(a) Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement.
(b) With respect to orders and menu items prepared by Customer’s restaurant(s), Customer represents and warrants that: (i) Customer will fulfill each order in accordance with any and all Delivery Platform requirements; (ii) each menu item shall be made using quality ingredients, within its “sell by” date, and in accordance with all applicable food safety practices and regulations; (iii) each menu item will be safe, merchantable, fresh, and the menu items shall not and will not be contaminated, degraded, mislabeled, misbranded or materially inconsistent with any description provided to Company, or adulterated within the meaning of applicable law; (iv) the weight(s), measurement(s), size(s), nutrition, allergy and caloric information (all as applicable), and any other information provided in connection with the menu items and/or their packaging (or in connection with any menu) shall be complete, accurate, and true, and consistently comply with all relevant applicable laws and regulations related to labeling; (v) will not be prepared and held under unsanitary conditions; and (vi) will be consistent with its original quality when received by the applicable end consumer (assuming proper storage and handling after delivery).
(c) THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, COMPANY EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE NUMBER OF ORDERS CUSTOMER WILL RECEIVE IN CONNECTION WITH THE SERVICES, NOR DOES COMPANY REPRESENTOR WARRANT THAT CUSTOMER WILL RECEIVE ANY INCREASED SALES OF MENU ITEMS OR BUSINESS AS A RESULT OF THE SERVICES OR THIS AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) THE DELIVERY PLATFORMS ARE PROVIDED BY THIRD PARTIES AND NOT BY COMPANY; AND (II) COMPANY MERELY FACILITATES CUSTOMER’S INTERACTIONS WITH THE DELIVERY PLATFORMS AND HAS NO RESPONSIBILITY FOR THE DELIVERY PLATFORMS. NO ADVICE OR INFORMATION,WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
EXCEPT FOR: (I) A BREACH OF THE CONFIDENTIALITY OBLIGATION SUNDER SECTION 11 OR (II) FRAUD OR WILFUL MISCONDUCT BY COMPANY, COMPANY WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHERE CONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND COMPANY, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
Customer and Company are independent contractors in all matters relating to thisAgreement, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between Customer and Company.
This Agreement is governed by the laws of the State of California, without giving effect to principles of conflicts of law. Subject to Section 17, any dispute arising out of, relating to or concerning this Agreement will be resolved by arbitration administered by the American ArbitrationAssociation under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in San Francisco,California. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. CUSTOMER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIF FOR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING(“CLASS ACTION WAIVER”). Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with Customer’s or Company’s claims, and may not otherwise preside over any form of a representative or class proceeding
Each party agrees that a breach or threatened breach by such party of any of its obligation sunder Section 11 or, in the case of Customer, Section 3(f) of this Agreement with respect to Company’sIntellectual Property Rights, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without having to post a bond or other consideration. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Neither party will be responsible for any failure or delay in the performance of its obligation sunder this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Company may use Customer’s name, image, trademarks, logos, voice, feedback, testimonial and/or other statements on Company’s website and in its marketing materials in connection with the promotion of the Brands and Services. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by Company. All goodwill and improved reputation generated by Company’s use of the Customer’s name, trademarks and logos inures to the exclusive benefit of Customer.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements between the parties regarding the same subject matter.Company may modify the terms of this Agreement from time to time in its sole discretion, and such modifications will be effective immediately, provided, however, Company will provide at least ten (10) days’ advance notice for any material modifications to the terms. If Company modifies this Agreement, Company will provide an updated version of the Agreement to Customer via email or post it to its website (athttps://www.forwardkitchens.com/), and may also send other communications to Customer. If Customer does not agree to the modifications, Customer may terminate this Agreement, effective on written notice toCompany. Failure to enforce any provision of this Agreement will not constitute a waiver of such provision.With the exception of the Class Action Waiver in Section 16 of this Agreement, if any provision is deemed invalid or unenforceable, the other provisions will remain in full force and effect. Customer may not assignor transfer this Agreement without the prior written consent of Company. Company may freely assign thisAgreement, in whole or in part, without the consent of Customer. Nothing contained in this Agreement will be deemed to create any third party beneficiary right upon any third party whatsoever. Any notice under thisAgreement must be in writing and delivered personally or by overnight courier or sent by email. The section headings of this Agreement are for convenience only and have no value for interpretation of this Agreement.For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and (ii) the word “or” is not exclusive.
Customer hereby irrevocably designates and appoints Company (and any of Company’s designated officers or employees) as Customer’s attorney-in-fact, to act for and on Customer’s behalf to: (a) send notifications and requests (including via electronic communication) for verification of accounts in connection with the DeliveryPlatforms (“Accounts”); (b) open, manage and modify Accounts in either Customer’s entity name or restaurant name; (c) receive and open any mail, including email, addressed to Customer for the purpose of managing theAccounts; (d) endorse Customer’s name on any checks or other forms of payment or security that may come intoCompany’s possession; (e) notify the Delivery Platforms and associated parties with respect to the Accounts to pay Company directly; (f) sign Customer’s name on any invoice or bill of lading relating to any Account, drafts against a Delivery Platform, schedules and assignments of Accounts, verifications of Accounts, and notices to theDelivery Platforms; (g) demand, collect, receive, sue, and give releases to any Delivery Platform for the monies due or which may become due upon or with respect to the Accounts and to compromise, prosecute, or defend any action, claim, case or proceeding relating to the Accounts; (h) settle and adjust disputes and claims relating to theAccounts for amounts and upon terms which Company determines to be reasonable; (i) execute on behalf ofCustomer any and all instruments, documents, financing statements, and W-9 forms to perfect Customer’s interests in the Accounts and (j) do all acts necessary to otherwise effect the services contemplated by thisAgreement. For the avoidance of doubt, the foregoing appointment novates any previous appointments that may have been made orally or in writing.