These Komidaz Restaurant Terms and Conditions (“Terms”) apply to the service relationship between Komidaz Inc., its subsidiaries and affiliates (collectively, “Komidaz”) and the food establishment (“Restaurant” or “You”) signing the Komidaz order form (the “Order Form”), which is incorporated into these Terms. These Terms and the Order Form will collectively be referred to as the “Agreement.” The Agreement is entered into as of the date set forth on the Order Form (“Effective Date”). Capitalized terms not defined herein will have the meanings set forth in the Order Form.
PLEASE SEE THE SECTION 23 BELOW ENTITLED “DISPUTE RESOLUTION”, THAT HAS MANDATORY ARBITRATION PROVISIONS AND CERTAIN WAIVERS BY YOU THAT AFFECT YOUR RIGHTS.
These Terms may be modified or updated by Komidaz from time to time, effective upon posting an updated version of these Terms on the Komidaz website Komidaz.com. Restaurant is responsible for regularly reviewing the Terms for updates and information from Komidaz. Continued use of the Services after any such modifications or updates shall constitute Restaurant’s consent to such changes.
1.SERVICES. Komidaz makes available proprietary technology that facilitates (i) ordering of Restaurant food and beverage products for consumption on premises, or off premises through take-out or delivery services, (ii) payment processing (the “Basic Services”) and (iii) upon separate request by Restaurant, certain advertising and marketing services (the “Advertising Services”, and collectively with the Basic Services, the “Services”).
i. In order to use the Services, you will be required to open one or more accounts (each an “Account”). Your accounts will enable you to, among other things, create and update menus & prices, generate QR Codes for your locations and dining spots within each location (tables, bar, etc.), review sales and billing, set up POS and payment processing, and implement promotions and advertising campaigns. You agree that all information provided by you in connection with your Account and the use of the Services will at all times be true, accurate, complete, and current, and that you will update information as required.
- You are responsible for, and agree to take reasonable measures to maintain the security and confidentiality of your Accounts and related passwords. You are responsible for all activity on your Accounts. You agree to notify Komidaz immediately of any known or suspected breach, loss, theft or unauthorized use or disclosure of your Accounts and/or passwords. You further agree to hold Komidaz harmless from any claims, actions, losses, liabilities, costs and expenses (including reasonable attorneys fees) arising out of your failure to comply with your obligations under this paragraph, or for any acts or omissions of anyone accessing or using your Accounts or passwords.
- KOMIDAZ TECHNOLOGY. Komidaz delivers the Services through its proprietary software platform for Restaurants https://www.komidaz.io (the “Platform”), its websites including komidaz.com (the “Websites”), mobile applications for Restaurants (the “Restaurant App”) and Customers (the “Customer App” and together with the Restaurant App, the “Apps”) and proprietary software that runs on each of the Platform, Websites and Apps (the “Software”, and together with the Platform, the Websites and the Apps, the “Komidaz Technology”). As between Restaurant and Komidaz, Komidaz owns all right, title and interest in and to, and will maintain sole and absolute control over, the Komidaz Technology and all content thereon (the “Komidaz Content”) other than Restaurant Content, including without limitation all rights to patents, patent applications, trademarks, tradedress, copyrights, trade secrets and other intellectual property rights of any nature whatsoever therein. For purposes hereof, “Restaurant Content” means any menus, logos, photographs or other information supplied by Restaurant to Komidaz for posting on the Platform.
- LICENSE BY KOMIDAZ.
- Komidaz grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Komidaz Technology and Komidaz Content during the Term, in order to utilize the Services solely as set forth in the Agreement, all intellectual property laws, and additional notices communicated to you by Komidaz from time to time. Any other use of the Komidaz Technology or Komidaz Content is strictly prohibited. Komidaz reserves the right, in its sole and absolute discretion, to terminate, modify or suspend any Komidaz Technology, Komidaz Content or the Services. Subject to the foregoing, and the other terms and conditions of this Agreement, Komidaz and its affiliates will make available the applicable Services to Restaurant, solely for use by Restaurant at locations that are owned and operated by Restaurant.
- With respect to the Apps, Komidaz will retain sole and absolute control of all elements of the user experience and user interface relating to the App, including with respect to the Customer App : (i) the personalization of the Customer App for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; and (iv) adding, removing or otherwise modifying any feature or functionality made available through the Customer App.
- LICENSE BY RESTAURANT. Restaurant hereby grants Komidaz and its affiliates a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use Restaurant’s name, trademarks, service marks, tradenames, copyrights, logos, slogans and identifying symbols (the “Restaurant Identifiers”) for purposes of delivering the Services. All goodwill related to the use of the Restaurant Identifiers by Komidaz will inure to the benefit of the Restaurant. Restaurant represents and warrants that the Restaurant Identifiers do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Restaurant agrees that Komidaz or its affiliates may remove any or all of the Restaurant Identifiers from the Apps if Komidaz or its affiliates reasonably believe that such Restaurant Identifiers may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
- CUSTOMER INFORMATION.
- As between you and Komidaz, you acknowledge that Customer Information is the proprietary information of Komidaz, and may only be used for fulfilling Customer orders. You are further prohibited from making Customer Information available in any manner to third parties. Without the consent of Komidaz, you may not use Customer Information to contact Customers directly, other than in connection with Customer orders placed through the Komidaz Technology.
- Without limiting any other provision of this Agreement, Restaurant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
- CUSTOMER COMPLAINTS In the course of providing the Services to Restaurant, Komidaz and its affiliates, on behalf of Restaurant, may respond to complaints by Restaurant’s Customers about food and beverage products sold by Restaurant via the Apps.
- RESTAURANT OBLIGATIONS
- Komidaz Technology and Content
- You may not copy, post, upload, republish or otherwise distribute or transfer any Komidaz Content, except as expressly permitted herein.
- Restaurant Content.
- By transferring Restaurant Content to Komidaz you hereby agree (a You are responsible for all Restaurant Content, (b) You will not upload any Restaurant Content that is unlawful, threatening, abusive, harmful, obscene, offensive, false, misleading, violative of the intellectual property rights of any third party, or in breach of this Agreement, that solicits any business competitive with Komidaz, or that interferes with the functionality of the Komidaz Technology.
- Komidaz reserves the right in its sole discretion to modify or delete any Restaurant Content that it deems in breach of this Agreement or otherwise in violation of its standards. Komidaz will cooperate with federal, state and local authorities to the extent permitted by applicable law with respect to any Restaurant Content.
iii. You hereby grant Komidaz an irrevocable, transferable, perpetual, royalty free, non-exclusive license to, without notice or approval (a) copy, display, publish, use, modify, and create derivative works from the Restaurant Content in all forms of media, whether currently existing or created hereafter, (b) use your Restaurant name and ratings and your use of Komidaz Technology and (c) attribute your Restaurant Content to You.
- General obligations. You hereby agree:
- To comply with all applicable law in connection with your use of the Komidaz Technology and Komidaz Content
- Not to permit any Customer under the age of 13 to use the Services or to submit Restaurant Content.
iii. Not attempt to gain access to any account or other Komidaz Technology or Komidaz Contentto which you are not expressly granted the right of access hereunder.
- Not to use the Komidaz Technology or Komidaz Content for any illegal purpose.
- Not to use the Komidaz Technology or Komidaz Content for any use not explicitly permitted hereunder.
- Not to copy, modify or create derivative works of the Komidaz Technology or Komidaz Content nor to provide access to, license or sell access to the Komidaz Technology or Komidaz Content to any third party for any purpose except as explicitly contemplated herein.
vii. Not to bypass, breach or otherwise interfere with or degrade the security of the Komidaz Technology or Komidaz Content.
viii. Not to post false reviews of your Restaurant.
- Not to post blog entries for commercial purposes other than as contemplated herein.
- Not to engage in any activity that could disrupt or damage any Komidaz Technology or interfere with any other Restaurant’s use of the Komidaz Technology or Komidaz Content.
- Not to republish Komidaz Content, including without limitation menus and reviews, in any other medium.
xii. Not to input or transmit viruses, malware and other disruptive technologies to the Komidaz Technology.
xiii. Not to use any method or technology to scrape, monitor, copy, compile, collect or monitor any Komidaz Technology or Komidaz Content.
xiv. Not to reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code related to the Komidaz Technology or attempt to discover underlying ideas or algorithms.
- Not to use the Services in any manner that infringes on the intellectual property rights of any third party.
xvi. Not to access or use the Komidaz Technology or Komidaz Content to conduct any analysis thereof or to assist in the development or use of a product competitive with the Komidaz Technology.
- Orders. You hereby agree that:
- Timely confirm all orders placed by Customers through the Komidaz Technology.
- Restaurant will make items available food and beverage products available for purchase through the Customer App (“Food Products”) during its normal business hours and ensure the menu listing such Food Products is accurate. Restaurant will prepare, handle , store, label and package all Food Products in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing food safety and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of alcohol (collectively “Safety Standards”). Restaurant will determine any quality, portion, size, ingredient or other criteria that apply to its Food Products (“Product Criteria”) and Restaurant is responsible for ensuring that all Food Products meet the applicable Product Criteria. If Restaurant fails to prepare or supply Food Products in accordance with Safety Standards or if any Food Product fails to meet the Product Criteria (each, a “Defective Product”), Komidaz may, in its sole discretion, remove such Food Product from the Customer App. Food Products that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Customer App. Restaurant represents and warrants that all nutritional information for Food Products, including calorie count or allergen information, that is made available through the Customer App is, and at all times will remain, accurate. In addition, Restaurant will ensure that the contents of its menu includes Product Criteria for each Food Product listed (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) that are accurate and comply with all applicable laws and regulations.
iii. Restaurant acknowledges and agrees that Komidaz does not take title to any Food Product at any time. Restaurant shall be responsible for any reimbursement costs related to Customer refunds for Defective Products or other related issues within Restaurant’s control (including any costs associated with retrieving any such Defective Products, including by way of example, missing or incomplete Food Products, Food Products not properly prepared, and Food Products not prepared in accordance with Restaurant’s internal standards. Komidaz may, in its sole discretion, deduct reimbursement costs from the payment Komidaz remits to Restaurant in accordance with Section 9.
- Restaurant will not alter the charges for any Customer order without such Customer’s prior consent.
- Alcohol. If you may lawfully deliver alcohol to Customers, you agree that you are responsible for making sure that any recipient is at least 21 years of age as required by law prior to transferring alcohol to any such Customer. You will further ensure that any delivery personnel are aware that alcohol is being delivered and that they are properly trained to require all necessary identification from the Customer. You agree to comply with all federal, state and local laws, regulations and rules relating to the sale and delivery of alcohol and you hereby agree to indemnify Komidaz for all losses and expenses (including reasonable attorney’s fees) arising out of your breach of any of the foregoing covenants.
- Food Product Pricing. You agree that all pricing of Restaurant Food Products available for order will be at least as favorable as that available on the Restaurant’s standard menu or offered through any other service.
- Gratuities. Restaurant hereby agrees to permit Customers to add gratuities to any order through the Customer App. Komidaz shall forward the full value of gratuities from Customers. Restaurant has the sole responsibility to comply with all applicable laws (including making all tax-related and other required deductions and withholdings as required by law) regarding the payment of gratuities.
- FEES AND TAXES
- You are responsible for determining and setting the retail price for each Food Product (the “Retail Price”), and you are responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the avoidance of doubt, the Retail Price for each Food Product excludes separately stated Sales Taxes.
- Restaurant will pay Komidaz a fee (the “Fee”) equal to the Retail Price (as defined below) of all Food Products that Restaurant sells via the Customer App (excluding any Sales Tax collected on Restaurant’s behalf) multiplied by the applicable fee percentage set forth on the Order Form. The Fee does not include any applicable taxes. Komidaz will remit to Restaurant the total Retail Price collected for all Food Products Restaurant sells through the Customer App (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Food Product Net Revenue”). All Food Product Net Revenue that is duly owed to Restaurant will be remitted within fourteen (14) business days of the sale of the Food Product or such other time as agreed upon by Komidaz.
- Restaurant hereby authorizes Komidaz to collect applicable Sales Taxes on Restaurant’s behalf based on information provided by Restaurant to Komidaz. If Sales Taxes charged by Restaurant are not in accordance with any law or regulation, Komidaz expressly reserves the right to, upon prior notice to Restaurant, remove affected Food Products from Restaurant’s menu on the Customer App or remove Restaurant from the Customer App.
- Certain legislation may require Komidaz to collect and remit Sales Taxes directly to the applicable taxing authority. In jurisdictions with such laws that are applicable to Komidaz, Komidaz may determine, as of a date specified by Komidaz, the amount of applicable Sales Tax which Komidaz will collect and remit to the taxing authority based on Food Product descriptions and other information provided by Restaurant. From the date Komidaz begins collecting Sales Tax for direct payment to any taxing authority, any covered Sales Taxes will be collected by Komidaz and remitted to the applicable tax authority on Komidaz’s own account, and not on behalf of Restaurant. A list of jurisdictions in which Komidaz will collect and remit Sales Taxes may be found at http://www.komidaz.com/salestax as updated from time to time.
- Restaurant hereby appoints Komidaz and its affiliates, as the case may be, as Restaurant’s payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Food Products sold by Restaurant via the Customer App plus any applicable Sales Tax collected on Restaurant’s behalf and (ii) remitting the Retail Price plus Sales Tax collected on Restaurant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Restaurant (“Food Product Revenue”). Further, Restaurant agrees that payment collected on its behalf by Komidaz or its affiliates will be considered the same as payment made directly to Restaurant. Restaurant is solely responsible for providing Komidaz with, and maintaining, accurate bank account information. Komidaz and its affiliates may, from time to time, request information from Restaurant to confirm Restaurant’s identity as may be required or advisable under any applicable laws, rules or regulations before remitting any amounts to Restaurant and may refuse to process amounts owed to Restaurant if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Restaurant. Komidaz may adjust the remittance of Food Product Revenue collected on Restaurant’s behalf for reasons including failure to deliver a Food Product as ordered or making a correction on an Food Product. Komidaz and its affiliates reserve the right to collect any amounts in connection with adjustments via a deduction from the remittance of Food Product Revenue collected on Restaurant’s behalf, by debiting the payment method or Restaurant’s bank account on record, or otherwise seeking reimbursement from Restaurant by any lawful collection methods available. Restaurant authorizes Komidaz and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. Certain, such as, without limitation, fraud (including any charges for Food Products that Customers did not place) or Customer complaints, Komidaz and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Restaurant gives Komidaz and its affiliates express consent to adjust payments collected on Restaurant’s behalf as set forth in this section.
- COPYRIGHT POLICY
Komidaz takes claims of copyright infringement seriously. Komidaz will respond to notices of alleged copyright infringement that comply with applicable law. If Restaurant believes any materials accessible on or from the Platform infringe Restaurant’s copyright, Restaurant may request removal of those materials (or access to them) from the Platform by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA“), the written notice (the “DMCA Notice“) must include substantially the following: (i) Restaurant’s physical or electronic signature; (ii) Identification of the copyrighted work Restaurant believes to have been infringed or, if the claim involves multiple works on the Platform, a representative list of such works; (iii) Identification of the material Restaurant believes to be infringing in a sufficiently precise manner to allow Komidaz to locate that material; (iv) Adequate information by which Komidaz can contact Restaurant (including Restaurant’s name, postal address, telephone number, and, if available, email address); (v) A statement that Restaurant has a good faith belief that use of the copyrighted material is not authorized by Restaurant, its agent, or applicable law; (vi) A statement that the information in the written notice is accurate; and (vii) A statement, under penalty of perjury, that Restaurant is authorized to act on behalf of the copyright owner.
Komidaz’s designated copyright agent to receive DMCA Notices is:
12110 Sunset Hills Rd. #600
Reston, VA 20190
If Restaurant fails to comply with all of the requirements of Section 512(c)(3) of the DMCA, Restaurant’s DMCA Notice may not be effective.
Please be aware that if Restaurant knowingly materially misrepresents that material or activity on the Platform is infringing Restaurant’s copyright, Restaurant may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
- CUSTOMER COMMENTS AND RATING. Customers may be prompted by the Customer App to rate Food Products and to provide comments related to the Customer’s experience with Restaurant and the relevant Food Products(s) on the Customer App (“Customer Comments”). Komidaz and its affiliates reserve the right to use, share, and display Customer Comments in any manner without attribution to or approval of Restaurant. Restaurant acknowledges that Komidaz and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Comments, provided that Komidaz reserves the right to edit or remove comments in its sole discretion.
12.DISCLAIMER OF WARRANTIES
- THE KOMIDAZ SERVICES, WEBSITES AND APPS, AND ALL CONTENT THEREON ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND KOMIDAZ MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. KOMIDAZ DOES NOT REPRESENT OR WARRANT (A) THAT ITS SERVICES, WEBSITES, APPS AND ANY CONTENT OR LINKS TO THIRD PARTY SITES WILL BE SECURE, UNINTERUPTED, ERROR FREE, FREE FROM VIRUSES OR OTHER MALWARE OR HARMFUL COMPONENTS, AND (B) THAT THE USE OR RESULTS OF USE OF THE PLATFORM, THE INFORMATION, CONTENT AND OTHER MATERIALS ARE CORRECT, ACCURATE, RELIABLE, TIMELY, COMPLETE, CURRENT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION RELATED TO AN ORDER PLACED ON THE CUSTOMER APP OR THE PLATFORM.
- YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE MATERIAL BARGAINED-FOR BASES OF THE AGREEMENT AND YOU FURTHER AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE FAIR AND REASONABLE.
- IF YOU ARE DISSATISFIED WITH THE SERVICES OR DISAGREE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOUR SOLE REMEDY IS TO DISCONTINUE USE OF THE SERVICES, EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN.
- CONFIDENTIALITY. “Confidential Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the use by Restaurant of the Platform or the sale of Restaurant’s Food Products to Customers through the Customer App and the terms and conditions of this Agreement. Confidential Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than its Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Restaurant hereby authorizes Komidaz and its Affiliates to disclose the terms of this Agreement to Restaurant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that, if legally permitted to do so, the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
- Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) with respect to Restaurant as the Indemnifying Party, any claims that the Restaurant Identifiers infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Restaurant Identifiers in accordance with the terms of this Agreement. In addition, Restaurant will indemnify, defend and hold harmless the Komidaz Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Restaurant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Restaurant Food Products in jurisdictions where Komidaz is not responsible for directly remitting sales taxes to the applicable taxing authority; and (C) Restaurant’s failure to provide accurate and complete descriptions additional for Restaurant Food Products in jurisdictions where Komidaz is responsible for directly remitting sales taxes to the applicable taxing authority.
- The Indemnified Party will provide the Indemnifying Party prompt written notice of any potential claim subject to indemnification hereunder. Indemnifying Party will assume the defense of the claim through counsel Indemnifying Party designates provided that such counsel is reasonably acceptable to the Indemnified Party. Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
16.LIMITATION OF LIABILITY.
IN NO EVENT WILL KOMIDAZ BE LIABLE TO RESTAURANT FOR (A) LOSS OF PRODUCTION, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (C) LOSS, DAMAGE OR CORRUPTION OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION, OR (E) LOSSES OR CLAIMS ARISING OUT OF OR RELATED TO INFORMATION, CONTENT, INFORMATION, PRODUCTS AND SERVICES AVAILABLE ON OR THROUGH THE PLATFORM, THE WEBSITES OR APPS OR THIRD PARTY SITES LINKED FROM THE KOMIDAZ WEBSITES OR APPS.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS FOR THIRD-PARTY CLAIMS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (X) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF RESTAURANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (Y) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF COMMISSIONS PAID BY RESTAURANT TO KOMIDAZ WITH RESPECT TO THE THREE CALENDAR MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
- REPRESENTATIONS AND WARRANTIES. Restaurant hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and all applicable food safety standards; and (v) the Restaurant Identifies used or provided by Restaurant pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.
- INSURANCE. During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. All policies will be issued by insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
- REMEDIES FOR BREACH. Subject to Section 23, Komidaz reserves the right to seek all remedies at law and in equity for breach by Restaurant of this Agreement, including the right to block access of Restaurant to the Platform, Websites, Apps, Komidaz Technology and Services.
- TERM AND TERMINATION. This Agreement will commence on the effective date of the Order Form and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part in the event of a material breach by the other party upon five (5) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active promotion, advertising or other marketing campaign period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Komidaz may suspend or otherwise terminate this Agreement on written notice in connection with an event that, in Komidaz’s judgment, could cause damage to the Komidaz brands or business. All payment obligations and Sections 3, 6, 8(b), 8(c), 8(d)(ii), 8(d)(iii), 9(a), 12, 13, 14, 15, 16, 17, 20, the last sentence in 21, 22, 23, 24, and 26 will survive the expiration or termination of this Agreement.
- NOTICE Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided in writing by either party from time to time, and shall be deemed delivered: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by national overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notice address for Komidaz is: Komidaz Inc., Attn: Legal, 12110 Sunset Hills Road #600, Reston, VA 20190. Notice address for Restaurant is the address set forth on the Order Form.
- Arbitration. Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “AAA Rules”, see www.adr.org) and not by a judge or jury. The AAA Rules are deemed incorporated herein by reference. The arbitration shall be conducted by and in front of a single arbitrator, nominated according to the AAA rules (the “Arbitrator”). The parties agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
- Procedure/Rights/Limitations and Waivers. The Parties hereby agree:
- In the event of a dispute or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within such thirty-day period, the complaining party’s exclusive remedy shall be arbitration, or as set forth in Section 24.
- The Arbitrator’s award will be final and binding and judgment on the Arbitrator’s award may be entered in any court of competent jurisdiction.
iii. The place of arbitration will be New York, New York, or the AAA location closest to the complaining party’s principal place of business.
- To the extent permitted by applicable law, the parties agree to keep confidential all materials related to the dispute, including the existence and substance of the dispute, all the submissions by the parties to the Arbitrator, and awards rendered by the Arbitrator.
- Notwithstanding anything to the contrary in this Section 23, either party parties may (a) seek relief in small claims court, or (b) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Claims that are not arbitrable pursuant to the FAA are excluded from this agreement.
- NEITHER PARTY MAY BRING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST THE OTHER PARTY, OR PARTICIPATE IN OR RECOVER RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST THE OTHER PARTY BY A THIRD PARTY (the “Class Action Waiver”). Notwithstanding anything herein to the contrary, the interpretation, validity and enforceability of the Class Action Waiver shall only be determined by a court, and not by the Arbitrator.
vii. Each party shall pay its own proportionate share of Arbitrator fees and expenses and expenses of the AAA. At his discretion, the Arbitrator shall have the right to award the foregoing arbitration and administrative fees and expenses as damages.
viii. Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
- Injunctive Relief. You acknowledge that Komidaz would be damaged irreparably and would have no adequate remedy of law if any provision of this Agreement is not performed in accordance with its specific terms or otherwise is breached. Notwithstanding the provisions of Section 23, you agree that upon any breach of this Agreement by You that Komidaz shall be entitled to obtain temporary and permanent injunctive relief to prevent such breach or use, in addition to any other remedy to which Komidaz may be entitled and without having to prove the inadequacy of any other remedy Komidaz may have at law or in equity and without being required to post bond or other security.
- FORCE MAJEURE. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including without limitation decrees or restraints of Government, acts of God, epidemics, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.
- MISCELLANEOUS. Restaurant agrees to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of Komidaz or its affiliates. The failure of either party to enforce the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates. This Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instruments.