By executing a FoodTec Solutions, Inc. (“FoodTec”) sales contract (“Sales Contract”) that incorporates these terms and conditions (“Terms and Conditions”) by reference, or by using any Hardware, Software or Services provided or otherwise made available by FoodTec, Client agrees, as the date of each and any such action (the “Effective Date”) to be bound by and comply with these Terms and Conditions.

These “Terms and Conditions” include all referenced policies, agreements, exhibits, schedules and appendices, without limitation, the Acceptable Use Policy, Privacy Addendum, Data Protection Addendum, and Professional Services Addendum.

In addition to any Sales Contract, these Terms and Conditions apply to any Legacy Licensing Document, any Financing Documents, any Statement of Work or the like, and any other written agreement entered into by the Parties, whether before or after the Effective Date hereof, all of which are collectively referred to herein as “FoodTec Agreements”.

1. Definitions

For purposes of these Terms and Conditions, in addition to those defined in context below the following definitions apply:

“API” or “APIs” means one or more application programs interfaces as the context may require.

“API License and Linking Agreement” means an agreement in a form promulgated by FoodTec under which a Third Party is permitted to use one or more FoodTec APIs and Confidential Information to establish its application as a Linked Application that may be offered to Licensed Restaurants generally, or a subset.

“Acceptable Use Policy” means FoodTec’s Acceptable Use Policy available for review at www.foodtecsolutions.com/acceptableuse, as it may be updated from time to time.

“Client” means that legal entity identified in the Sales Contract or other FoodTec Agreements as being FoodTec’s customer with respect to the use of Products in the operation of a Licensed Restaurant at a specified location.

“Client Data” means with respect to a Licensed Restaurant, all Restaurant Data, including all sales, and financial information, menu item data, employee data, Client Messages and Client Content, but excluding any and all Personally Identifiable Information associated with Consumers and Client Personnel as well as Proprietary Data.

“Consumers” means those natural persons that interact with a particular Licensed Restaurant, whether for themselves or others.

“Client Content” means text, video and images submitted by Client or its Consumers.

“Client Messages” mean and marketing messaging developed by or for Client, inclusive of all Client Content.

“Client Personnel” means all employees, owners, members, shareholders, directors, managers, operators of Client with those affiliates and independent contractors of Client that are Permitted Contractors, through which Client operates a licensed “Licensed Restaurant”.

“Data Protection Addendum” means the FoodTec data protection addendum available for review at www.foodtecsolutions.com/dataprotection/, as it may be updated from time to time.

“Data Export” means the use of a Module or a FoodTec API to export one or more elements of Client Data, menu data, employee data or other data whether to achieve functional integration with a Third Party Product or Service, or otherwise.

“Data Repository” means the hosted repository that contains the Restaurant Data for the Licensed Restaurant.

“Delivery Services” means food delivery services such as Grubhub, DoorDash, DoorDash Drive, Uber Eats, UberDirect and any similar future courier services, whether or not presently existing, and whether or not branded under their own names or available to Client on a private label basis.

“Documentation” means any, and all end-user guides or other documentation and information describing or required for use of the FoodTec Solution, as the same may be amended, supplemented and updated during the Term.

“Feedback” means any suggestion, request, or contribution that is either submitted to FoodTec by Client Personnel or any Third Party engaged by Client in connection with a requested enhancement, business need, Product function issue or otherwise, whether or not the input is provided in the context of FoodTec rendering Services, whether or not Client has paid for implementation or not, and whether or not the suggestion was solicited or unsolicited.

“Fees” means any amount payable to FoodTec under a Sales Contract or any other FoodTec Agreements.

“Financing Documents” means any documents relating to the financing of FoodTec Products, as provided by or through FoodTec, including, any promissory note, security agreement, or financing statement, including any UCC filings.

“FoodTec Products” or “Product” means the FoodTec Solution in the entirety, or one or more items of Hardware, Software, Documentation, Data Repository, APIs, Mobil Apps, and Services included in a Sales Contract, as the context requires.

“FoodTec Solution” means the integrated suite of on-premise Software and Software-as-a-Service applications and Data Repository, by or through which FoodTec makes available the functionality, features and performance capabilities of FoodTec’s point of sale system for and management tools restaurant operators, as FoodTec may enhance, supplement and modify during the Term, and any subset thereof whether or not designated as distinct FoodTec Products or Modules, including APIs and Mobile Apps, and any Hardware or Hardware-as-a-Service, together with all Services and Documentation.

“Go Live” means the Client’s initial use of the FoodTec Solution at the Licensed Restaurant.

“Hardware” any includes any tangible product provided to Client by FoodTec including POS terminals, EMV Terminals, cameras, printers, bump screens, monitor displays, register drawers, servers, proxy servers, firewalls, Network Attached Storage devices, barcode scanners, video splitters and similar peripherals, and/or any other hardware identified in a Sales Contract, and excluding any purchases from Third Parties.

“Hardware-as-a-Service” means FoodTec’s provision of Hardware to a FoodTec Restaurant for a term bearing a monthly fee as identified in a Sales Contract.

“Integration” means a FoodTec Product resulting from FoodTec integrating the interaction of FoodTec APIs with those of Third Party products or services, specifically excluding any functional integration that is accomplished by Linked Application or Data Export.

“Legacy Licensing Document” means any supplemental End-User License Agreement or other FoodTec Agreement between the Parties that provides for a perpetual license for one or more FoodTec Products, which require Software Maintenance for access to fixes, updates and upgrades.

“Licensed Restaurant” means a restaurant at a specified location for which Client, through Client Personnel, is licensed to use one or more FoodTec Products under FoodTec Agreements.

“Linked Application” means any Third Party Service or an application developed by Client itself or by a Third Party, that interacts with one or more FoodTec APIs. Although a Client may use a “Linked Application” to achieve functional integration, it is not an “Integration” which is a “FoodTec Product”.

“Mobile Apps” means those FoodTec Products that are mobile applications allowing (a) Consumers to submit orders to a Licensed Restaurant, and (b) Customer Personnel to interact with Delivery IQ, FoodTec IQ, Inventory IQ, or other Modules, in a manner that is integrated with the FoodTec Solution as a whole.

“Messaging Services” means any telephony, Voice over IP, chat, push notification, SMS, MMS, RCS or other messaging services, whether or not the technology is presently in existence, accessed by Client and its Consumers through use of the FoodTec Solution, either as an Integration or a Third Party Service, inclusive of Client to Consumer, Consumer to Client, FoodTec to Client and Messaging Platform Vendor to Client and/or Consumer capabilities.

“Messaging Platform Vendor” means a Third Party that provides the software, services and/or hardware environment through which FoodTec enabled to provide Client with Messaging Services.

“Module” means functionality provided by a component of the FoodTec Solution which FoodTec may, or may not define as a distinct FoodTec Product.

“Party” and “Parties” FoodTec and Client individually or collectively as the context requires.

“Payment Processors” means Third Party vendors that provide processing services with respect to Consumer payment devices such as credit cards, debit cards, mobile device associated payments including ApplePay, Google, Samsung and others, whether or not presently existing.

“Permitted Contractor” means a Third Party as to which Client (a) advises of the obligations of Client, Client Personnel and the Licensed Restaurant under this Agreement, and (b) remains responsible with respect to any act or omission, all of which are presumed to have been authorized by Client.

“Personally Identifiable Information” as more fully identified by the Privacy Addendum means information that can be specifically traced to any individual.

“Proprietary Data” means certain FoodTec proprietary data structure, algorithms and the output produced thereby, in which all right, title, and interest remains with FoodTec.

“Privacy Addendum” means the privacy addendum available for review at www.foodtecsolutions.com/privacyaddendum, as it may be updated from time to time.

“Professional Services”, as further detailed on Exhibit A, refers to training, creation of Static Web Sites, customization, implementation of online ordering, marketing campaign assistance, menu database creation and revision, comparable activities, and the “Go Live” support for commissioning the operation of the FoodTec Solution at a FoodTec Restaurant.

“Professional Services Addendum” means the addendum set forth at www.foodtecsolutons.com/professionalservices/ which contains supplemental provisions governing Professional Services whether or not an SOW is entered into by the Parties.

“Restaurant API Use Agreement” means an agreement in a form promulgated by FoodTec under which Client may, either through Client Personnel or a Third Party, use an “AS IS” FoodTec API to interact with the Restaurant Data for a specified Licensed Restaurant, whether to establish a Linked Application or Data Export.

“Restaurant Data”-Includes data provided by Client and ingested means all data and information provided or submitted by, or caused to be provided or submitted by, Client and its Consumers to the FoodTec Solution, and all data and information processed or stored and provided to Client through its use of the FoodTec Solution, inclusive of any Personally Identifiable Information associated with Client Personnel and Consumers, but specifically excluding Proprietary Data.

“Services” means any “Support Services” and “Professional Services” (each provided in connection with the FoodTec Solution, Hardware and Software. “Service Goals” means those targets for FoodTec’s delivery of Support Services set forth in Exhibit B.

“Software” means the software elements of the FoodTec Solution, together with any fixes, updates or upgrades provided through the Software Maintenance and all APIs.

“Software-as-a-Service” means the provision of Software, whether on-premise and/or cloud-based applications for a fee at regular intervals, rather than a perpetual license as typically referenced in Legacy Licensing Documents.

“Static Website” means a web site corresponding to the Licensed Restaurant that is either created by FoodTec for Client, or by of for Client by a Third Party, in which instance it will be unable to interact with the FoodTec Solution without the use of APIs.

“Statement of Work”, or “SoW” means a document that specifies the scope of Professional Services to be rendered by FoodTec to Client in accordance with the Professional Services Addendum.

“Support Services” refers to break/fix Software Support, Software Maintenance, Help Desk, monitoring and loss prevention assistance, along with the services identified for Hardware and Hardware-as-a-Service detailed on Exhibit A.

“Telecommunications Carrier” means a provider of wired, wireless or Voice Over Internet Protocol (VOIP) communications services.

“Third Party” means any party that is neither FoodTec nor Client.

“Third Party Service” means the delivery, payroll, pay card, voice recognition or other application or service provided to Client and its Consumers, as applicable by a Third Party.

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FoodTec may revise these Terms and Conditions, and the referenced policies from time to time. If any changes materially reduce Client’s rights or materially increase Client’s obligations, FoodTec will use commercially reasonable efforts to provide Client with notice by email. Client shall be deemed to have accepted any revised Terms and Conditions if Client does not provide written notice, within five (5) days of their first being published, that Client does not accept the revised Terms and Conditions. The updated Terms and Conditions will become effective as of the effective date indicated in the Terms and Conditions (“Update Effective Date”). Any use of Products after the Update Effective Date means Client has accepted the updated Terms and Conditions. Client’s sole and exclusive remedy in the event Client does not accept the updated Terms and Conditions is to cease access to and use of the Products.

2. Quotations; Sales Contracts

All quotations, proposals, email, and text exchanges are expressly non-binding as to FoodTec unless made through Sales Contracts issued by FoodTec. Email, text, or other exchange does not create an undertaking by FoodTec to supply Products. Hardware and Hardware-as-a-Service pricing is valid from thirty (30) days from the date of issuance and requires Go Live prior to ninety (90) days following the date of Sales Contract. Sales Contracts for Hardware and Hardware-as-a-Service items that are not accepted or deployed on a timely basis are subject to pricing adjustment by FoodTec. The pricing for any item that is not Hardware or Hardware-as-a-Service, is valid for ninety (90) days following date of issuance by FoodTec.

3. Delivery of Products

FoodTec will endeavor in good faith to deliver Products purchased or licensed by Client within the timeframe specified in the Sales Contract. FoodTec shall not be liable, and Client is solely responsible and bears all risk, for any delay in delivery, failure to deliver or loss or damages in shipment, for any cause whatsoever. All claims for shortage or damage before or upon delivery shall be deemed waived unless Client delivers written notice of a claim to FoodTec within ten (10) days after delivery of the Products to Client. If Client requests that FoodTec delay delivery, Client shall nonetheless make payment for the Products based upon the timing at which such Products would have been delivered in the absence of Client’s delay request.

4. Payment

(a) Products listed in a Sales Contract shall be paid by Client to FoodTec at the prices and on the terms set forth in the Sales Contract. Unless otherwise provided in the Sales Contract, all payments shall be made to FoodTec via an Automated Clearing House (ACH) transfer from Client’s checking account (the “Designated Account”).

(b) All Fees are due and payable upon receipt of the applicable invoice, and all unpaid balances shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the outstanding balance remains unpaid.

(c) All prices set forth on the Sales Contract are exclusive of sales tax, freight and travel. FoodTec may collect applicable sales tax if and as required; it is Client’s sole responsibility to determine and satisfy all obligations with respect to other taxes and fees that may be due.

(d) No payments to FoodTec hereunder are refundable.

(e) The Product pricing identified in a Sales Contract must explicitly identify any associated training or other Professional Services to be provided; none are implied. Where training is specified, it will be provided only to Client’s employees then employed. FoodTec’s sole obligation for training will be to supply a qualified instructor for the designated number of hours. FoodTec does not guarantee that trainees will be able to operate the Products properly within the allotted time. Upon Client’s request, FoodTec will provide additional training time at its then-prevailing rates. The Client agrees to pay for all travel, accommodation and other reasonable expenses incurred by FoodTec personnel in connection with providing services.

(f) Product pricing does not include installation, except as specified in the Sales Contract. Client is solely responsible for installation of dedicated AC power circuits, network cabling and internet service.

(g) Total fees for Professional Services are estimated and subject to change based on the actual hours utilized.

(h) FoodTec has the right to increase prices for the next Renewal Term by providing written notice at least forty-five (45) days prior to the expiration of the current Term. The price for Software as-a-Service or Support Services shall not increase upon renewal by more than six percent (6%) per year since the start of the Initial Term.

(i) Prices for Hardware purchases and Professional Services are subject to change without prior notice, except as set forth in a Sales Order.

5. Hardware; Hardware-as-a Service.

(a) For purchased Hardware, any supplier or manufacturer warranties will be passed through to the Client when permitted. FoodTec will provide reasonable assistance with warranty claims if the Client is current in payment for Support Services. A MANUFACTURER OR SUPPLIER WARRANTY, IF ANY, IS THE ONLY WARRANTY MADE AS TO THE HARDWARE AND IS IN LIEU OF ALL OTHER WARRANTIES.

(b) Hardware provided on a Hardware-as-a-Service basis remains the property of FoodTec. Client responsibilities include conforming to the Site Installation Guide, being responsible for theft or damage, using approved consumables, maintaining insurance, and cooperating with diagnostic, update, and return (RMA) processes.

(ii) FoodTec provides a “Hardware-as-a-Service Limited Warranty”: ALL HARDWARE-AS-A-SERVICE ITEMS WILL REMAIN IN WORKING ORDER FOR THE DURATION OF THE TERM DESPITE NORMAL WEAR AND TEAR. IF AN ITEM FAILS, THE CLIENT’S SOLE REMEDY IS FOR FOODTEC TO ACCEPT THE RETURN AND PROVIDE A FUNCTIONAL REPLACEMENT. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.

6. Restaurant Data; Use

(a) All Restaurant Data is exclusive to the Client, subject to authorizations for FoodTec and its vendors to process the data as required for the operation of the FoodTec solution, and to use anonymized, aggregated transaction data for statistical analysis and internal development.

(b) Client’s exclusivity does not obligate FoodTec to extract or transfer any data, nor does it prevent other FoodTec customers from having some of the same consumers. It does not confer ownership of Personally Identifiable Information of consumers or personnel to the Client.

(c) Client shall handle all Personally Identifiable Information in accordance with its own privacy policies and applicable laws.

7. Support Services

In rendering Support Services, FoodTec will attempt to achieve results consistent with the Service Goals, but there is no guarantee of meeting response or resolution times. The performance of the Software is conditioned upon the Client providing the proper operating environment as specified in the FoodTec Site Installation Guide.

8. Professional Services

(a) Provision of Professional Services follows either a signed Statement of Work or a verbal go-ahead on a recorded line for fees not exceeding $2,500, all governed by the Professional Services Addendum.

9. Client Undertakings

Client warrants that it has had the opportunity to determine the suitability of the Products, and that the security of connections and data is solely the Client’s responsibility. Client is also solely responsible for marketing, production, delivery, caloric information, ADA accessibility, billing errors, and providing correct sales tax information. Client will comply with security best practices, PCI regulations, the Privacy and Data Processing Addendums, and all applicable laws.

10. Indemnification; Limitation of Liability

(a) Client shall defend and indemnify FoodTec from any and all losses arising from breaches of these terms, acts or omissions of its personnel, unauthorized use of products, use of Linked Applications, issues with Restaurant Data, Delivery Services, Messaging Services, and compliance with laws, among other things.

(c) FOODTEC SHALL HAVE NO LIABILITY FOR ANY DAMAGES SUSTAINED BY CLIENT in connection with the products. If a court determines liability exists, it SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT PAID BY CLIENT for the products in the twelve (12) months preceding the claim. IN NO EVENT SHALL FOODTEC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING LOST PROFITS.

11. Evaluation; Suitability

CLIENT IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE EVALUATION OF, AND DETERMINING THE SUITABILITY OF, THE PRODUCTS FOR CLIENT AND ITS SYSTEMS AND OPERATIONS.

12. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED IN THEIR ENTIRETY BY FOODTEC.

13. Term

(a) The Initial Term is set forth in the Sales Contract and commences on the Go Live Date. Thereafter, the contract shall automatically renew for additional one-year periods (a “Renewal Term”) unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the current term.

(b) If no Initial Term is set forth, it shall be for five (5) years.

14. Default

(a) An “Event of Default” includes failure to pay, breaching terms, ceasing to use the Products, assigning rights without consent, insolvency, or bankruptcy proceedings.

(b) Upon default, FoodTec has the right to immediately disable the FoodTec Solution, suspend services, terminate agreements, and take possession of products. Client shall immediately pay all amounts due, including an Early Termination Fee.

(c) The Early Termination Fee is calculated as the sum of all accrued unpaid fees plus all fixed monthly fees for the remainder of the unexpired term, plus an amount for variable fees based on the average of the preceding 12 months of service.

15. Return of Hardware

New and unused Hardware may be returned within thirty (30) days of delivery with FoodTec approval, subject to a twenty percent (20%) restocking fee. If the Hardware has been used, FoodTec may assess a charge up to seventy percent (70%) or decline the return.

16. Confidentiality

“FoodTec Confidential and Proprietary Information” includes the FoodTec Solution and all related information. Client shall not use, disclose, copy, or create derivative works from this information except as expressly licensed.

17. Retention of Rights; License

FoodTec retains all rights, title, and interest in the FoodTec Products. FoodTec grants Client a non-exclusive, non-transferable, revocable license to use the Software as identified in the Sales Contract for the operation of the Licensed Restaurant. The Software is licensed, not sold.

18. License Restrictions

Client shall not disclose, copy, reverse engineer, or create derivative works of the Software or APIs. The license is restricted to the specified Licensed Restaurant and cannot be used as a service bureau or resold.

19. Injunctive Relief

In the event of a breach of confidentiality or license restrictions, FoodTec shall be entitled to immediate injunctive relief, as monetary damages would be insufficient.

24. Choice of Law: Jurisdiction and Venue

These Terms shall be governed by the laws of the Commonwealth of Massachusetts. The parties consent to exclusive jurisdiction and venue in the state and federal courts in Suffolk or Middlesex County, Massachusetts. Both parties waive their rights to a jury trial.

25. No Assignment/Transfer

These Terms are not assignable or transferable by the Client without the prior written consent of FoodTec.

29. Entire Agreement, Counterparts; Electronic Signature Conflicts

These Terms and the other FoodTec Agreements constitute the entire agreement between the parties. In the event of a conflict between these Terms and any other FoodTec Agreement, these Terms and Conditions shall govern unless the other agreement expressly states otherwise.

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EXHIBIT A

FoodTec Services

“Support Services”

Support Services include five components: Software Support (break/fix), Software Maintenance (enhancements and bug fixes), Help Desk, 24/7 System Monitoring, and a Loss Prevention Application. These services expressly exclude Professional Services.

“Professional Services”

Professional Services are available on a scheduled basis at prevailing hourly rates and are not part of the standard Support Services. Examples include menu changes, consulting, additional training, project management, and design services.

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Exhibit B

FoodTec Support Plan Service Goals

FoodTec provides service goals for support requests, which are assigned a Priority Level. All times are goals and estimates only.

P1-Store Down – Business is completely halted.
Response Time**: Within 60 Minutes.
Resolution Time: Within Four (4) hours.

P2-Business Interruption – Limited functionality.
Response Time: Within 2 Business Hours
Resolution Time: Within 8 Business Hours***.

P3-Non-Critical – No business disruption.
Response Time: Under 16 Business Hours.
Resolution Time: Within 24 Business Hours.

S-Scheduled Tasks – Out-of-scope services will be scheduled, typically within 2-5 business days.

*** “Business Hours” means the hours between 9:00am and 6:00pm Eastern Time, Monday through Friday, excluding holidays in The Commonwealth of Massachusetts.

Hardware support for items purchased from FoodTec is facilitated by FoodTec. Hardware purchased from others is not covered. Hardware-as-a-Service items receive support and replacement from FoodTec.