Terms & Conditions

FOODTEC SOLUTIONS, INC.

STANDARD TERMS AND CONDITIONS

By executing a Sales Contract (“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, 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, 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 may update these Terms and Conditions from time to time in
its sole discretion. The modified Terms and Conditions will be effective
30 days following posting and Customer agrees to the new posted Terms
and Conditions by continuing Customer’s use of the Products. Each time
Customer uses the 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. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND
CONDITIONS, OR TO ANY MODIFIED TERMS AND
CONDITIONS, CUSTOMER MAY NOT USE AND SHALL
DISCONTINUE USING, THE PRODUCTS.

1. FoodTec retains all right, title, and interest in and to the Products
purchased or licensed hereunder; provided, however, 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 5 hereof))
shall pass automatically to Customer and (b) upon shipment or delivery of
any Software, FoodTec shall grant to Customer a license to such Software
in accordance with the terms of Section 14 hereof.
2. 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.
3. (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. 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

(b) All Fees are due and payable net 30 days after the date of the applicable invoice and all invoices are 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 13) are exclusive of sales tax, freight and travel. FoodTec may collect applicable sales tax if and as required; it is Customer’s sole responsible to determine and satisfy all obligations with respect to other states and other taxes and fees that may be due.

(d) The deposit amount, if any, listed on the Sales Contract is not 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 6), 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.

4. 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.

5. (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 16 hereof. Except for
the rights and licenses granted in this Section 5, 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.
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: (a) any breach of any provision of the
FoodTec Agreements or any agreement, representation or warranty made by
Customer herein or therein; (b) 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”); (c) 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); (d) 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; (e) any data or information submitted by Customer or any Customer
Party; (f) any delivery services provided or utilized by Customer or any
Customer Party, including GrubHub, DoorDash, Uber Eats and the like; and
(g) Customer’s failure to comply with applicable laws, rules and regulations,
including the Americans with Disabilities Act and federal and state laws,
rules and regulations related to privacy rights (including biometric privacy),
and personal information (or such other term denoting personally
identifiable information as defined in such laws, rules and regulations).
(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 7(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,

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 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. 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.
9. 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 (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). If no FoodTec Agreement
is in effect with respect to a current Customer, then the Initial Term shall be
for a period of one (1) year from the date of acceptance of these Terms and
Conditions 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 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, (iv) legal
proceedings are commenced and pending against Customer, (v) Customer
fails to meet any other reasonable requirements established by FoodTec,
(vi) Customer becomes insolvent, dissolves, liquidates, terminates its
existence or assigns its assets for the benefit of its creditors, (vii) the
institution of a bankruptcy or reorganization proceeding by Customer,
(viii) a custodian or receiver is appointed for Customer or any of its property

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 7
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 this 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 Sales Contract, 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 Sales
Contract, 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 written consent of FoodTec. 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

21. All notices and other communications of a party shall be in writing and
given (a) by hand; (b) by email and original posted first class mail, postage
prepaid, within two (2) business days thereafter; (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, by
private courier or when so emailed 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.