Terms & Conditions

By executing a purchase order (“Sales Contract”) and/or any other FoodTec Solutions, Inc. (“FoodTec”) agreement that incorporates these terms and conditions (“Terms and Conditions”) or by using any Hardware, Software or Services provided or otherwise made available by FoodTec, Customer agrees to be bound by and comply with the these Terms and Conditions, the FoodTec privacy policy, and all other terms, conditions, and policies pertaining to the Products, all of which are incorporated into these Terms and Conditions by reference, as applicable to the specific Products Customer uses. These Terms and Conditions, together with any sales contract, quote or purchase order, as may be amended or supplemented (“Sales Contract”), any End-User License Agreement between the parties (the “EULA”), any FoodTec financing documents executed in connection herewith or therewith, including, any promissory note, security agreement, or financing statement (collectively, “Financing Documents”), any statement of work, work order or the like, and any other agreement entered into by the parties, whether before or after the effective date hereof (“Effective Date”), are collectively referred to herein as the “FoodTec Agreements”. For purposes of these Terms and Conditions: “FoodTec Solution” means the software‑as‑a‑service system by or through which FoodTec makes available the functionality, features and performance capabilities of FoodTec’s point of sale system, as such software and systems may be supplemented, enhanced and improved during the Term; “Hardware” means any hardware included in a Sales Contract; “Products” means, collectively, the FoodTec Solution, Hardware, Software and Services included in the Sales Contract and any addenda thereto; “Services” means any services provided in connection with the FoodTec Solution, Hardware and Software, including Support Services (defined in Section 6); and “Software” means FoodTec software and Third Party Software (defined in Section 5) used by FoodTec in performing the Services. FoodTec will publish these Terms and Conditions at https://www.foodtecsolutions.com/terms/ and may revise these Terms and Conditions from time to time. If any changes materially reduce Customer’s rights or materially increase Customer’s obligations, as reasonably determined by FoodTec, FoodTec will use commercially reasonable efforts to provide Customer with notice by email. Customer shall be deemed to have accepted any revised Terms and Conditions if Customer does not provide written notice, within five (5) days of their first being published, that Customer 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 Customer has accepted the updated Terms and Conditions and each time Customer uses Products, Customer reaffirms its acceptance of the then-current Terms and Conditions, and Customer’s agreement to be bound hereby. Customer is responsible for staying informed of any changes and is expected to check this page from time to time so it is aware of any changes. Customer’s sole and exclusive remedy in the event Customer does not accept the updated Terms and Conditions is to cease access to and use of the Products. FoodTec retains all right, title, and interest in and to the Products purchased or licensed hereunder; provided that, upon (a) payment in full for any Hardware and deliverables provided pursuant to the FoodTec Agreements, the right, title and interest in and to such Hardware and deliverables (excluding any Pre‑Existing IP (defined in Section 4 hereof)) shall pass automatically to Customer and (b) shipment or delivery of any Software, FoodTec shall grant to Customer a license to such Software in accordance with the terms of Section 13 hereof.

• 1. FoodTec will endeavor in good faith to deliver Products purchased or licensed by Customer pursuant to these Terms and Conditions within any time specified in the Sales Contract. FoodTec shall not be liable, and Customer 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. Notwithstanding anything in these Terms and Conditions to the contrary, all claims for shortage or damage before or upon delivery shall be deemed waived unless Customer delivers written notice of a claim to FoodTec within ten (10) days after delivery of the Products to Customer. If Customer requests that FoodTec delay delivery, Customer shall nonetheless make payment for the Products based upon the timing at which such Products would have been delivered in the absence of Customer’s delay request.

 

• 2. (a) Products listed in a Sales Contract shall be paid by Customer 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 Customer’s checking account (the “Designated Account”). During the Term, FoodTec shall have the right to increase the prices of Products for the next succeeding Renewal Term provided that FoodTec provides written notice to Customer of the increased prices not less than forty five (45) days prior to the expiration of the Initial Term, or then‑current Renewal Term, as the case may be.(b) All Fees are due and payable net 30 days after the date of the applicable invoice and all invoices not paid within 30 days, and all credit accounts that are delinquent, shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid or the account is delinquent. (c) All prices set forth on the Sales Contract (and for all expedited orders as described in Section 12) are exclusive of sales tax, freight and travel. FoodTec may collect applicable sales tax if and as required; it is Customer’s sole responsibility to determine and satisfy all obligations with respect to other states and other taxes and fees that may be due, whether or not paid by FoodTec. (d) No payments hereunder are refundable. (e) The prices listed in the Sales Contract include initial programming and training of personnel in the use and operation of the Products only when expressly indicated. If FoodTec is providing training, training will be provided only to Customer’s employees, and FoodTec’s sole obligation for training will be to supply a qualified instructor for the designated number of training hours. FoodTec does not guarantee that, after such training, the trainees will be able to use or operate the Products properly. Upon Customer’s request, FoodTec will provide additional training time beyond the amounts stated in the Sales Contract at FoodTec’s then-prevailing rates for training. Customer agrees to pay all travel, accommodations and other reasonable expenses incurred by FoodTec employees, subcontractors or agents in connection with providing programming, installation, and training hereunder. FoodTec shall endeavor to obtain reasonable available airfares and will not travel first class. Travel and related expenses will be invoiced promptly after incurred by FoodTec and shall be paid by Customer within thirty (30) days of the date of the invoice. (f) The prices listed in the Sales Contract do not include installation of the Products, except as otherwise designated herein. Customer is solely responsible for installation of the requisite AC power and any other applicable power lines. FoodTec does not provide cabling service and shall not be responsible for the inspection of such electrical installation. Customer acknowledges receipt of documentation concerning the requirements for dedicated, isolated, and insulated AC power lines for all FoodTec Products. (g) Total fees charged by FoodTec for professional services are estimated and subject to change based on Customer requirements. (h) In no event shall the price for store services, such as Support Services (defined in Section 5), on‑line ordering, target marketing, rewards, mobile app and e-gift, increase by more than six percent (6%) per year after the Initial Term. (i) Prices for third-party Hardware are subject to change by FoodTec.

 

• 3. Certain Hardware is subject to supplier or manufacturer warranties, which FoodTec will pass through to Customer when and to the extent permitted to do so by the manufacturer or supplier. In such circumstances, FoodTec will provide reasonable assistance to facilitate a Customer warranty claim, provided that Customer has subscribed for and is current in its payment for Support Services, and further contingent upon Customer’s reasonable cooperation with such process. A MANUFACTURER OR SUPPLIER WARRANTY ON HARDWARE, IF ANY, IS THE ONLY WARRANTY MADE AS TO THE HARDWARE AND IS IN LIEU OF ALL OTHER WARRANTIES OF ANY NATURE; NO WARRANTIES WHATSOEVER ARE MADE WITH RESPECT TO MANUFACTURER OR SUPPLIER SOFTWARE, SERVICES OR ANY OTHER PRODUCTS. Manufacturer/supplier warranty coverage will not be extended in certain circumstances, including to repairs made necessary by damages due to fire, water, storm, burglary, power line fluctuations, spillage, accident, negligence, abuse, or Customer’s failure to appropriately use or maintain the Hardware, or to provide environmental and operating conditions conforming to FoodTec’s or manufacturer/supplier specifications, among other exclusions.

 

• 4. (a) If a Sales Contract includes Customer’s subscription for the FoodTec Solution, to the full extent required for FoodTec to perform and provide the FoodTec Solution in accordance with these Terms and Conditions, and for Customer to receive and use the FoodTec Solution hereunder, FoodTec hereby grants Customer a worldwide, non-exclusive, fully paid up right and license to access and use (i) the FoodTec Solution and (ii) the Documentation. In connection with Customer’s use of the FoodTec Solution, all Customer Data and transaction data will belong exclusively to Customer, subject, however, to Section 15 hereof. Except for the rights and licenses granted in this Section 4, each party retains all rights, title and interest it has in and to its respective intellectual property and no license regarding such intellectual property is granted to the other party hereunder. (b) As used herein: (i) “Background IP” means proprietary materials, software, documentation and other intellectual property of, or licensed by, FoodTec, including derivative works thereof and all enhancements and improvements thereto, (A) existing prior to the Effective Date, or (B) arising or acquired after the Effective Date from activities not associated with the Products; (ii) “Customer Data” means all data and information provided or submitted by, or caused to be provided or submitted by, Customer to FoodTec, and all data and information processed or stored and provided to Customer through its use of the FoodTec Solution; provided that “Customer Data” shall not include Proprietary Data; (iii) “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; (iv) “Pre‑Existing IP” means any Software, Background IP, Third Party Software or intellectual property right that meets any of the following criteria: (A) it is incorporated into or embedded or practiced by any deliverable; (B) it is something upon which any deliverable depends; and (C) it is necessary for the use or maintenance or enhancement of any deliverable; (v) “Proprietary Data” means certain FoodTec proprietary algorithms and the output produced thereby, in which all right, title, and interest shall remain with FoodTec; and (vi) “Third Party Software” means software that is not FoodTec‑owned software or Customer‑owned software.

 

• 5. Maintenance and support services provided to Customers (“Support Services”) are described on Exhibit A hereto.

 

• 6. (a) Customer shall defend, indemnify and hold FoodTec and its directors, officers, employees, contractors and agents (the “FoodTec Indemnified Parties”) harmless from and against any and all losses, liabilities, damages, judgments, awards and costs and expenses (including reasonable legal fees and expenses) (collectively, “Losses”) in any claim, action, suit or proceeding (individually and collectively, “Claim”), whether relating to Claims asserted by Customer or third parties, with respect to, arising out of, or in connection with: (i) any breach of any provision of the FoodTec Agreements or any agreement, representation or warranty made by Customer herein or therein; (ii) any act or omission of Customer or any of its subsidiaries and affiliates or any of their respective directors, officers, managers, members, employees, agents, partners, suppliers, service providers, contractors and end users (excluding, in all cases, FoodTec) (collectively, “Customer Parties”); (iii) Customer’s unauthorized use of the Products (including damages to FoodTec’s, Customer’s or any third party’s property that result from Customer’s use of the Products); (iv) any software authored by or on behalf of Customer (each a “Software Application”) that accesses or otherwise interoperates with the FoodTec Solution via APIs, the Software Application or the integration of the Software Application into the FoodTec Solution or any other Customer sites, products or services, or any part thereof, including any Claim that any of the foregoing infringes, misappropriates, or violates any intellectual property rights of any third party; (v) any data or information submitted by Customer or any Customer Party; (vi) any third‑party delivery services provided or utilized by Customer or any Customer Party, including GrubHub, DoorDash, Uber Eats and the like (“Delivery Services”); and (vii) Customer’s failure to comply with applicable laws, rules and regulations, including the Americans with Disabilities Act, the Telephone Consumer Protection Act, all applicable federal and state laws, rules and regulations related to telemarketing, text messaging, do‑not‑call lists, privacy rights (including biometric privacy), and personal information (or such other term denoting personally identifiable information as defined in such laws, rules and regulations) and all applicable federal and state laws, rules and regulations related to Delivery Services, including remarketing to such Delivery Services. (b) FoodTec shall provide prompt written notice of its Claim for indemnification to Customer, provided that failure to give prompt notice shall not affect Customer’s obligations under Section 6(a) hereof and then only to the extent that the failure materially prejudices the defense of the Claim. Customer may select counsel to defend FoodTec in respect of any indemnified Claim, provided that the counsel selected must, in FoodTec’s judgment, which judgment shall not be unreasonably withheld or delayed, be qualified to defend the indemnified Claim. FoodTec shall keep Customer fully informed of the status of the Claim, including all communications from the claimant, and shall cooperate with Customer, at Customer’s expense, with respect to any judicial proceeding or dispute resolution procedure. Customer shall not settle any Claim that requires an admission by, or imposes any liability on, FoodTec without FoodTec’s prior written consent. (c) FOODTEC SHALL HAVE NO LIABILITY FOR ANY DAMAGES SUSTAINED BY CUSTOMER OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE PRODUCTS. IN THE EVENT THAT, NOTWITHSTANDING THE PRECEDING SENTENCE, A COURT OF COMPETENT JURISDICTION SHALL DETERMINE THAT FOODTEC NONETHELESS HAS SUCH LIABILITY, THE PARTIES AGREE THAT SUCH LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR SUCH PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL FOODTEC OR ANY OTHER FOODTEC INDEMNIFIED PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES INVOLVING THE PRODUCTS OR ANY OTHER MATTER, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, PUNITIVE, OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER-ACCRUED SALES AND OTHER TAXES OR GOVERNMENT LEVIES). FOODTEC SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY ASSOCIATED WITH, FAILURE TO PROCESS CREDIT CARD TRANSACTIONS OR ANY OTHER MATTER OR BREACH WHATSOEVER. (d) FOODTEC SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF ANY PRODUCTS, OR THE TERMINATION OR NON-RENEWAL OF THESE TERMS AND CONDITIONS, BE LIABLE TO CUSTOMER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF CUSTOMER’S BUSINESS. EXCEPT FOR EXPRESS WARRANTIES STATED IN THESE TERMS AND CONDITIONS, IF ANY, THE FOODTEC SOLUTION AND OTHER PRODUCTS ARE PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER.

 

• 7. It is Customer’s responsibility to have and maintain in place virus protection software and security for all of its systems and data, including firewalls, malware and spyware protection, secure passwords, physical security, and access control policies. If Customer’s systems have persistent connections to the Internet, or transmit credit card or gift card transactions over the Internet, or use third party SSL to transmit credit card or gift card transactions, or otherwise have persistent connections to any network where there is potential for unauthorized access, Customer acknowledges that the security and protection of the connections, transmittals, transactions and network (as applicable) and the data and applications on or involved with same, including protections against unauthorized access, is solely and entirely Customer’s responsibility, as is compliance with all applicable data privacy laws and regulations, including biometric laws and regulations. Customer acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate. CUSTOMER WAIVES, AND FOODTEC EXPRESSLY DISCLAIMS LIABILITY FOR, ANY CLAIMS HEREUNDER AGAINST FOODTEC (a) ARISING FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, (b) AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, (c) FOR LOSS OF CUSTOMER DATA, (d) ARISING FROM CUSTOMER’S FAILURE TO COMPLY WITH ANY LAWS OR GOVERNMENTAL RULES OR REGULATIONS, INCLUDING THE FAILURE OF CUSTOMER’S SYSTEMS TO COMPLY WITH SUCH LAWS, RULES OR REGULATIONS, OR (e) AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS, WHICH SUCH UNAUTHORIZED ACCESS CUSTOMER ACKNOWLEDGES CANNOT IN ALL CASES BE PREVENTED EVEN IF REASONABLE STEPS HAVE BEEN TAKEN. SUPPORT OR SERVICES HEREUNDER NECESSITATED BY ANY OF THE FOREGOING ARE NOT COVERED UNDER THESE TERMS AND CONDITIONS. IF REQUESTED BY CUSTOMER, FOODTEC SHALL PROVIDE, ON A REASONABLE EFFORTS AND ON A TIME-AND-MATERIALS BASIS, SUPPORT OR SERVICES TO ADDRESS DAMAGE CAUSED BY, BUT NOT LIMITED TO, ANY OF THE FOREGOING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER WAIVES ANY CLAIMS AGAINST FOODTEC FOR FAILURE TO HAVE OR MAINTAIN SOFTWARE THAT MEETS CURRENT PCI DATA SECURITY STANDARDS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES AS TO THE FOODTEC SOLUTION AND OTHER PRODUCTS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY OR USE, OR ERROR-FREE OPERATION, ARE DISCLAIMED IN THEIR ENTIRETY BY FOODTEC.

 

• 8. (a) CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF THE PRODUCTS FOR CUSTOMER AND ITS SYSTEMS AND OPERATIONS. Customer represents and warrants that it has been provided the opportunity to ask FoodTec all questions and obtain from FoodTec all information necessary to enable Customer to determine the suitability of the Products for Customer and its systems and operations, and has received satisfactory response to same. (b) Customer is solely and exclusively responsible for providing all applicable sales and other taxes to be calculated by FoodTec and charged to Customer’s customers, and for auditing and promptly notifying FoodTec of any changes to sales and other taxes for use by FoodTec in such calculations. Customer is solely and exclusively responsible for any billing errors, including any errors resulting from Customer’s failure to provide to FoodTec, or notify FoodTec of, the correct applicable sales and other taxes.

 

• 9. (a) Subject to Section 9(b) hereof, the initial term of these Terms and Conditions (and all other FoodTec Agreements unless expressly provided otherwise therein) is set forth in the Sales Contract (as may be modified by Section 9(b), the “Initial Term”). Thereafter, these Terms and Conditions (and all other FoodTec Agreements unless expressly provided otherwise therein) shall automatically renew for additional one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party not less than thirty (30) days prior to the expiration of the Initial Term or then‑current Renewal Term, as the case may be, of its election not to renew these Terms and Conditions (and the other FoodTec Agreements). (b) If no FoodTec Agreement is in effect with respect to Customer or no Initial Term is set forth in the Sales Contract, then the Initial Term shall be for a period of four (4) years from the earlier to occur of (a) the date of completion of the installation of the FoodTec Solution or (b) the date that Customer deploys any Services and shall renew as provided above.

 

• 10. Except as otherwise agreed by the parties, each Statement of Work will (a) reference these Terms and Conditions, (b) describe the Services to be provided thereunder, including any deliverables, (c) identify FoodTec’s compensation for the Services to be performed thereunder and any deliverables, and (d) include any other necessary or advisable terms. When executed by the parties, a Statement of Work is automatically incorporated into, and forms a part of, these Terms and Conditions. Unless and to the extent expressly excluded in a particular Statement of Work, all of these Terms and Conditions will be deemed to be incorporated into such Statement of Work, unless, given the context of a particular term or condition herein, the term or condition is clearly inapplicable to such Statement of Work. The parties may add Services to be provided under a Statement of Work by executing an amendment to such Statement of Work.

 

• 11. (a) The occurrence of any of the following shall constitute an event of default hereunder and under each of the other FoodTec Agreements (each, an “Event of Default”): (i) Customer does not pay the sums due under the Sales Contract or any of the other FoodTec Agreements as and when such sums are due, as specified on the Sales Contract or otherwise, (ii) Customer breaches of any of these Terms and Conditions or any terms of the other FoodTec Agreements and such breach is not cured within the applicable cure period set forth herein or therein, if any, (iii) Customer terminates its FoodTec Agreements for convenience or otherwise prior to the expiration of the Term, (iv) Customer ceases to use the Products prior to the expiration or termination of the Term without FoodTec’s prior written consent, which consent shall be at FoodTec’s sole discretion, (v) Customer assigns any of its rights under any FoodTec Agreements, whether voluntarily, by operation of law, by merger or stock sale or otherwise, without FoodTec’s prior written approval, which approval shall be at FoodTec’s sole discretion, (vi) legal proceedings are commenced and pending against Customer, (vii) Customer fails to meet any other reasonable requirements established by FoodTec, (viii) Customer becomes insolvent, dissolves, liquidates, terminates its existence or assigns its assets for the benefit of its creditors, (ix) the institution of a bankruptcy or reorganization proceeding by Customer, (x) a custodian or receiver is appointed for Customer or any of its property, (xi) the institution of a bankruptcy or reorganization proceeding filed against Customer, and such appointment or proceeding is not terminated or dismissed within thirty (30) days, or (xii) all or substantially all of the assets of Customer are seized or attached. (b) Upon the occurrence of an Event of Default: (i) FoodTec shall have the immediate right to (A) remotely disable or remove the FoodTec Solution and other Software, if any, rendering it inoperable by Customer, (B) immediately suspend or discontinue any and all Services to Customer, (C) terminate any order, or to delay the shipment thereof, (D) enter any premises where the Software is located and take possession of the Software with or without notice or demand and with or without legal proceedings, and (E) file a UCC financing statement or similar document with the appropriate filing authority to secure FoodTec’s rights in Customer’s property and assets, and (ii) Customer shall (A) immediately pay all amounts then due under any of the FoodTec Agreements, including the Early Termination Fee described in Section 11(c) hereof, (B) pay the amount of any and all discounts in pricing of the Services set forth in the Sales Contract, which Customer forfeits due to the Event of Default, and (C) reimburse FoodTec for all expenses that FoodTec reasonably has incurred in connection with Customer’s default, including reasonable attorneys’ fees and costs. These Terms and Conditions and all other FoodTec Agreements will automatically terminate upon the occurrence of an Event of Default described in Sections 11(a)(vi) through 11(a)(x), subject to Section 16. (c) If Customer pays FoodTec for any Services pursuant to a variable fee payment plan by which the fees for such Services may vary month‑to‑month (including transactional fees, online ordering fees, monthly SaaS fees, monthly service fees, support contracts and other fees or assessments imposed by FoodTec) (“Variable Fees”), in addition to or in lieu of any fixed monthly fees payable to FoodTec, upon an Event of Default, Customer shall pay an early termination fee (the “Early Termination Fee”). Because the amount of Variable Fees are not readily ascertainable and calculable, Customer agrees that the Early Termination Fee is reasonably approximated and liquidated to be equal to the average of the aggregate monthly Variable Fees plus the monthly fixed fees payable by Customer to FoodTec under Customer’s FoodTec Agreements during the 12 months (or fewer, if less than 12 months of history exist) preceding the Event of Default, and multiplying such average amount by the number of months remaining in the Term. Customer shall pay the Early Termination Fee immediately upon termination, and Customer authorizes FoodTec to deduct the total amount from Customer’s Designated Account, or to otherwise withhold the total amount from amounts due to you for the Services. Customer agrees that the Early Termination Fee is not a penalty, but rather is a reasonable fee in light of the financial harm caused by Customer’s Event of Default. Notwithstanding the foregoing, no Early Termination Fee will be charged to the extent it is prohibited by applicable laws or regulations. Customer authorizes FoodTec to debit the Designated Account or to deduct amounts Customer owes FoodTec under this Section from the settlement funds FoodTec may owe Customer. (d) The rights and remedies set forth herein, including this Section 11, are not and shall not be deemed to be FoodTec’s exclusive remedies and FoodTec shall have and may exercise all rights and remedies available to it at law or in equity.

 

• 12. Any Hardware and Software purchased from FoodTec may, with FoodTec approval, be returned due to changes in configuration within thirty (30) days of delivery, subject to a restocking fee of twenty percent (20%) of the cost of the Products. If FoodTec determines that the Products have been used, FoodTec will assess a charge of up to fifty percent (50%) of the cost of Products or may decline their return. No other returns shall be permitted. Orders placed by the Customer with requested processing time of less than five (5) business days shall be subject to an expedited processing fee of $500 (for up to ten (10) items), unless otherwise agreed by FoodTec in writing).

• 13. Upon payment in full of all sums due under these Terms and Conditions, FoodTec grants to Customer a nonexclusive, nontransferable, revocable license to use the Software identified on the Sales Contract, subject to all of the terms hereof and the terms and conditions of the EULA, and any other applicable FoodTec Agreements. Customer’s use of the Software (whether or not on any Hardware sold hereunder) constitutes agreement to the EULA, and these Terms and Conditions. The Software is licensed, not sold, and FoodTec reserves all rights not granted hereunder. Customer may not transfer, assign or otherwise convey the Software. Upon payment in full of all sums due under the FoodTec Agreements for any Hardware, Customer may transfer, assign or otherwise convey such Hardware. Customer may not reverse engineer, decompile, modify, or disassemble the Software. The performance of the Software is conditioned upon Customer providing environmental and operating conditions (including network, third-party software, hardware, and configuration, and including power filter and battery back up in the event of fluctuations in power) in accordance with FoodTec specifications. Unless and to the extent otherwise expressly provided in any of the other FoodTec Agreements, FoodTec will not provide to Customer (a) software support unless Customer purchases Support Services or (b) upgrades unless Customer purchases an upgrade license from FoodTec.

 

• 14. In the event FoodTec shall be delayed or hindered in, or prevented from the performance of, any act required, hereunder by reasons of strike, lockouts, labor troubles, inability to procure materials or services, failure of power or restrictive government or judicial orders, or decrees, riots, insurrection, war, Acts of God, inclement weather or other reason or cause beyond FoodTec’s control, then performance of such act shall be excused for the period of such delay.

• 15. Customer hereby authorizes FoodTec to use the transaction data available to FoodTec through the FoodTec Solution solely on an aggregated basis for statistical analysis and other similar purposes, and to use it internally and provide such aggregated data to third parties provided that no portion of the data contains any personally identifiable information or information that can be specifically traced to any individual.

 

• 16. If any one or more of the provisions of these Terms and Conditions shall for any reason be held to be excessively broad as to time, duration, geographical scope, activity or subject, or shall be construed as illegal, invalid or unenforceable, it shall be construed, by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. If any provision of these Terms and Conditions shall be construed to be illegal or invalid, such provision shall be severable and the legality or validity of any other provision hereof shall not be affected thereby. Any term, provision, or condition required for the interpretation of these Terms and Conditions or necessary for the full observation and performance by each party hereto of all rights and obligations arising under these Terms and Conditions prior to its termination, including Section 6 hereof, shall survive such termination.

 

• 17. These Terms and Conditions and the other FoodTec Agreements constitute the entire agreement between Customer and FoodTec with respect to its subject matter. Customer expressly represents to FoodTec that no officer, employee, representative, or agent of FoodTec has made or entered into any oral agreement, promise, or understanding which conflicts with any of the terms set forth in these Terms and Conditions. In the event of a conflict between these Terms and Conditions and the terms of any other FoodTec Agreement, these Terms and Conditions shall govern unless any applicable FoodTec Agreement expressly states that such FoodTec Agreement expressly governs in its entirety or with respect to any such conflicting term. In the event of a conflict between these Terms and Conditions and the terms and conditions of any purchase order, receipt, or other transaction-related document that Customer may issue in connection with these Terms and Conditions, these Terms and Conditions shall govern. FoodTec rejects all terms of Customer’s purchase order, receipt, or other transaction-related document that would be in addition to the terms hereof, and none of such additional terms are binding on FoodTec.

 

• 18. These Terms and Conditions shall be governed by and construed according to the laws of the Commonwealth of Massachusetts, without regard to conflicts of law principals. The parties mutually consent to exclusive jurisdiction and venue in the state and federal courts sitting in Suffolk or Middlesex County, Massachusetts for all matters arising under or relating to these Terms and Conditions or any other FoodTec Agreement, whether based on contract, tort, or otherwise. FOODTEC AND CUSTOMER EACH UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THESE TERMS AND CONDITIONS, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.

 

• 19. These Terms and Conditions are not assignable by Customer, whether voluntarily, by operation of law, by merger or stock sale or otherwise, without the prior written consent of FoodTec; provided that any such approved assignee shall execute a written agreement assuming the obligations hereunder and, notwithstanding such assignment, Customer shall remain liable hereunder. Subject to the immediately preceding sentence, these Terms and Conditions shall be binding upon and inure to the benefit of FoodTec and Customer, and to their respective successors and assigns; provided, that, if FoodTec has consented to Customer’s assignment of these Terms and Conditions, Customer and its successors and assignees may incur certain transfer charges payable to FoodTec at then-prevailing rates. Customer acknowledges and agrees that FoodTec may, and is permitted to, subcontract certain of its obligations under these Terms and Conditions to FoodTec’s authorized representatives. Customer shall not engage any third parties, other than FoodTec, to provide any implementation services hereunder without the express written permission of FoodTec. No delay or omission by either party in exercising any right under these Terms and Conditions shall operate as a waiver of that or any other right. No waiver shall be effective unless made in writing and signed by the waiving party. A waiver or consent given by a party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

• 20. Unless the context of this Agreement clearly requires otherwise (a) “or” has the inclusive meaning frequently identified with the phrase “and/or,” and (b) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.

 

• 21. All notices and other communications of a party shall be in writing and given (a) by hand; (b) by email; (c) by certified or registered mail with an acknowledgment of receipt, postage prepaid, return receipt requested; or (d) by a reputable private courier which provides evidence of receipt as a part of its delivery service, at such party’s address set forth on the Sales Contract, or to such other address as may be designated in writing by either party from time to time in accordance herewith. Notices shall be deemed delivered two (2) business days following delivery by hand or by private courier, on the date sent by e-mail of if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, and five (5) business days following proper dispatch by certified or registered mail. A “business day” is any Monday through Friday on which first class US mail is delivered in Massachusetts.

 

• 22. If Customer utilizes a FoodTec API (the “API”) to enable its third party providers, including Delivery Services, (“Third Parties”) to provide services to Customer through the FoodTec Solution or in connection with data collection and storage services provided by FoodTec to Customer, then as between Customer and FoodTec, Customer shall be solely liable for any Claims resulting from the use of the API by Customer or any Third Parties, unless directly or indirectly caused by the gross negligence or willful misconduct of FoodTec or any of its directors, officers, employees, contractors and agents.

 

• 23. If Customer is a franchisee (“Franchisee Customer”) of a franchisor Customer of FoodTec (“Franchisor Customer”) that has entered into one or more FoodTec Agreements, in addition to these Terms and Conditions, each such Franchisee Customer is subject to and bound by the terms and conditions of the Participation Agreement attached hereto as Exhibit B.