FoodTec Solutions, Inc.
Terms and Conditions
By executing a FoodTec Solutions, Inc. (“FoodTec”) sales contract (“Sales Contract”) a 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 the 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”. FoodTec may update these Terms and Conditions from time to time by posting the updated version to: www.foodtecsolutions.com/termsandconditions/
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 Agreemements 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 Processing Addendum” means the FoodTec data protection addendum available for review at .foodtecsolutions.com/dataprocessing/, 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.
FoodTec may revise these Terms and Conditions, and the referenced Acceptable Use Policy, Privacy Addendum Data Protection Addendum, Professional Services Addendum,, and any additional addenda, supplements, schedules and exhibits from time to time. If any changes materially reduce Client’s rights or materially increase Client’s obligations, as reasonably determined by FoodTec, 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 and each time Client uses Products, Client reaffirms its acceptance of the then-current Terms and Conditions, and Client’s agreement to be bound hereby. 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. Except as expressly provided in a Sales Contract issued by FoodTec, all 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 adjustement by FoodTec. Except as otherwise provided by a Sales Contract, 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, 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 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 states and other taxes and fees that may be due, whether or not paid to or by FoodTec.
(d) No payments to FoodTec hereunder are refundable.
(e) The Product pricing identified in a Sales Contract must explicitly identify any associated training of personnel in the use and operation of the Products or other Professional Services to be provided; none are implied. In instances where a Sales Contract specifies training, the training 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 training hours as previously scheduled in accordance with the estimate contained within the Sales Contract. FoodTec does not guarantee that, after such training, the trainees will be able to use or operate the Products properly within the allotted estimate of hours. Upon Client’s request, FoodTec will provide additional training time at FoodTec’s then-prevailing rates. The Client agrees to pay for all travel, accommodation 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, hotel rooms, and will not travel first class. Travel and related expenses will be invoiced promptly after incurred by FoodTec and shall be due by Client when invoiced.
(f) The Product pricing identified in the Sales Contract does not include installation of the Products, except as specified therein. Client is solely responsible for installation of the requisite dedicated AC power circuits, network cabling and internet service. FoodTec does not provide cabling service and shall not be responsible for the inspection of either line voltage low voltage electrical installation, or network cabling. Client acknowledges receipt of documentation concerning the requirements for dedicated, isolated, and insulated AC power lines and network cabling/infrastructure for all FoodTec Products.
(g) Total fees charged by FoodTec for Professional Services are estimated and subject to change based on the actual hours utilized to complete the installation. If Client requirements change (e.g. additional menus) new estimates may be issued and charges may be incurred.
(h) FoodTec shall have the right to increase the prices of FoodTec Products for the next succeeding Renewal Term provided that FoodTec provides written notice to Client 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. In no event shall the price for either FoodTec Products that are Software as-a-Service, or Support Services purchased under Legacy Licensing Documents increase upon renewal by more than six percent (6%) per year elapsing following onset of the Initial Term.
(i) Except as set forth in a Sales Order the prices for Hardware purchases, and Professional Services are subject to change by FoodTec without prior notice.
5. Hardware; Hardware-as-a Service.
(a) Where a Sales Contract or other FoodTec Agreements specify that Client is purchasing Hardware the following applies: Certain Hardware is subject to supplier or manufacturer warranties, which FoodTec will pass through to Client 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 Client warranty claim, provided, that Client has subscribed for and is current in its payment for Support Services, and further contingent upon Client’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 as to repairs made necessary by damages due to fire, water, storm, burglary, power line fluctuations, spillage, accident, negligence, abuse, or Client’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.
(b) Any and all Hardware items identified on a Sale Contract other FoodTec Agreements as being provided by FoodTec to Client on a Hardware-as-a-Service basis remain the property of FoodTec and is provided subject to the following additional Client responsibilities and supplemental undertakings by FoodTec:
(i) Client undertakes that as to Hardware-as-a-Service equipment it will: (A) conform to FoodTec’s Site Installation Guide; (B) be responsible for any theft, damage, destruction, abuse, or other conduct which would exclude application of a manufacturer warranty; (C) not use any consumables other than that meeting manufacturer specifications; (D) maintain applicable insurance coverage and name FoodTec as an “additional insured” upon request; (E) cooperate with FoodTec diagnostic efforts, as applicable; (F) cooperate with any update efforts specified by FoodTec; (G) cooperate with the return material authorization “RMA” process specified by FoodTec under the “Hardware-as-a-Service Limited Warranty” and any manufacturer related request; (H) pay for shipping any items covered by an RMA back to FoodTec; and (G) cooperate with FoodTec in the execution of any UCC filings, obtaining a landlord waiver, or other steps reasonably necessary to protect FoodTec’s interest in the Hardware items, the Client acknowledging that its failure to do as required voids FoodTec’s Hardware-as-a-Service Limited Warranty.
(ii) FoodTec provides the following “Hardware-as-a-Service Limited Warranty”: ALL HARDWARE ITEMS IDENTIFIED AS BEING PROVIDED TO CLIENT AS “HARDWARE-AS-A-SERVICE” WILL REMAIN IN WORKING ORDER FOR THE DURATION OF THE HARDWARE-AS-A-SERVICE TERM SPECIFIED IN THE SALES CONTRACT DESPITE NORMAL WEAR AND TEAR. SUBJECT TO CLIENT MEETING ITS RELATED OBLIGATIONS (SECTION 5(b)(i)) SHOULD ANY COVERED ITEM FAIL TO FUNCTION AS INTENDED, THEN AS THE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOODTEC WILL ACCEPT THE RETURN OF THE ITEM COVERED BY AN RMA AND PROVIDE CLIENT WITH A FUNCTIONAL REPLACEMENT ITEM SHIPPED AT FOODTEC’S EXPENSE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.
6 Restaurant Data; Use
(a) In connection with Client’s use of the FoodTec Solution, all associated Restaurant Data with respect to the Licensed Restaurant will be exclusive to Client’s, subject to the following authorizations on behalf of Client, Client Personnel and Consumers:
(i) As a function of the FoodTec Products purchased by Client, FoodTec and its vendors are authorized to process the Restaurant Data as required by the use of the FoodTec Solution by Client Personnel in operation of the Licensed Restaurant, and by Consumers, in accordance with the Data Protection Addendum;
(ii) FoodTec is authorized to use the anonymized transaction data available to FoodTec through the FoodTec Solution 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, and in the course of its research, development and validation activities that may include the training of artificial intelligence models for inclusion in future FoodTec Products;
(iii) FoodTec and its vendors are authorized to store the Restaurant Data the Client Data in the Data Repository under the Data Processing Addendum to enable provision of the processing functions to the Client;
(b) Client’s exclusivity in use of Restaurant Data is not and does not:
(A) an undertaking by FoodTec to search, extract or transfer any data or transactions and does not ensure Client’s ability to export, whether by Data Export or other licensed use of APIs any and all data that it may wish using the FoodTec Solution;
(B) preclude a Third Party customer using the FoodTec Solution with respect to its own Licensed Store, from encountering some of the same Consumers as may exist in the Restaurant Data associated with Client; and
(C) does not confer Client with ownership of the Personally Identifiable Information of either Client Personnel or Consumers notwithstanding the inclusion in Resturant Data, such ownership remaining with the Client Personnel and/or Comsumers, as applicable; and
(c) in its use of the FoodTec Solution Client shall handle the Personally Identifiable obtained by it, from Client Personnel and Consumers, in accordance with its own privacy and data protection policies and compliance efforts, which shall comply with applicable laws and regulations. The capacity of FoodTec Products to be used in connection with Personally Identifiable Information is set forth in the Privacy Addendum.
7. Support Services. In rendering Support Services FoodTec Technical Support will attempt to achieve results consistent with the Service Goals whenever possible. There is no guarantee we will meet the above response or resolution times. The performance of the Software is conditioned upon Client providing environmental and operating conditions (including network, network devices, associated configuration, third-party software, hardware, including power filters and battery back up in the event of fluctuations in, or loss of, power) in accordance with the FoodTec Site Installation Guide, as it may be updated from time to time, and any other FoodTec specifications that are provided to Client. Support Services require purchase through a Sales Contract or other FoodTec Agreement.
8. Professional Services.
(a) Provision by FoodTec of Professional Services follows either (i) the creation and execution of one or more Statements of Work, or (ii) verbal go ahead provided by Client Personnel on a recorded line whether the associated Fees do not exceed Two Thousand Five Hundred Dollars ($2,500), all of which is governed by the Professional Services Addendum.
(b) Any Statement of Work will: (i) reference these Terms and Conditions, (ii) describe the Professional Services to be provided thereunder, including any deliverables, (iii) identify FoodTec’s compensation for the Professional Services to be performed thereunder and any deliverables, and (iv) include any other necessary or advisable terms. When executed by the Parties, a Statement of Work is automatically incorporates, these Terms and Conditions, unless and to the extent expressly excluded in a particular Statement of Work, 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 additional Professional Services to be provided under a Statement of Work by executing an amendment to such Statement of Work.
9. Client Undertakings. Client represents and warrants and covenants for itself, its Client Personnel that in using the FoodTec Solution they:
(a) acknowledge: (i) Client has been provided the opportunity to ask FoodTec all questions and obtain from FoodTec all information necessary to enable Client to determine the suitability of the Products for Client and its systems and operations and has received satisfactory response to same; (ii) with respect to any circumstance where there is potential for unauthorized access, that the security and protection of the connections (inclusive of APIs), transmittals, transactions and network (as applicable) and the Restaurant Data and applications on or involved with same, including protections against unauthorized access, is solely and entirely Client’s responsibility, (iii) FoodTec does not and cannot control the quality or completeness of Restaurant Data that is imported or ingested within the FoodTec System through use that includes Linked Applications, Delivery Services, or Third Party Services, (iv) Client is solely and exclusively responsible for the marketing, production and delivery of its product to the Consumers of the Licensed Store, including through the presentation of any required caloric information, and ADA accessibility as to the physical premises of the Licensed Store, the Static Web Stie, Client’s implementation of Online Ordering, Client mobile apps, or otherwise; (v) Client is solely and exclusively responsible for any billing errors, including any errors resulting from Client’s failure to provide to FoodTec, or notify FoodTec of, the correct applicable sales and other taxes; (vi) Client is solely and exclusively responsible for providing all applicable sales and other taxes to be calculated by FoodTec and charged to Client’s Consumers, and for auditing and promptly notifying FoodTec of any changes to sales and other taxes for use by FoodTec in such calculations, (vii) that Client has all rights necessary to make use of the Client Content and Restaurant Data; and
(b) will at all times comply with and adhere to: (i) security undertakings developed by or for Client (other than by FoodTec), that include Client’s use of virus protection software, system passwords, and other security software require periodic and routine updates, which Client must obtain from its supplier or the manufacturer, as appropriate; (ii) all requirements associated with the handling of credit and debit cards, whether or not instructed by its Payment Processor, including PCI regulations applicable to the operation of the Licensed Store; (iii) the Privacy Addendum, Data Processing Addendum and irrevocably consent to serving as Data Controller, with respect to any the Personally Identifiable Information entered into the FoodTec Solution as Restaurant Data, whether through Client upload, through Client’s operation of the FoodTec Solution, through biometric fingerprint devices, cameras on the premises of the Licensed Restaurant, or otherwise; (iv) comply with those instructions that may be communicated by Messaging Platform Vendors Telecommunications Carriers, or providers of Third Party Services whether relayed through FoodTec or directly; (v) will comply with the Acceptable Use Policy with respect to Messaging Services, Third Party Services, and generally; (vi) not otherwise violate any applicable laws, rules, regulations or guidelines, whether or not enumerated above, in their use and operation of the FoodTec Solutions.
10. Indemnification; Limitation of Liability. (a) Client 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 Client or Third Parties, with respect to, arising out of, or in connection with any transaction, occurrence or common nucleus of operative fact involving: (i) any breach of any provision of these Terms and Conditions, and or and FoodTec Agreements, including as to the Client Undertakings set forth in Section 9, whether or not specifically referenced below; (ii) any act or omission of Client Personnel together with that of any Third Party as to which the requirements of Permitted Contractors have not been satisfied; (iii) Client’s unauthorized use of the Products (including damages to FoodTec’s, Client’s or any Third Party’s property that result from Client’s use of the Products); (iv) Client’s use of any Linked Application of Data Export to achieve integration of the FoodTec Solution with the products of Third Parties, whether connected directly to the FoodTec Solution or connected with any other Client sites, whether by reason that doing so infringes, misappropriates, or violates any intellectual property rights of any Third Party, or otherwise; (v) any Restaurant Data, including Client Data; (vi) any Delivery Services utilized in connection with the Licensed Restaurant; (vii) any Messaging Services utilized in connection with the marketing the Licensed Restaurant, the Telephone Consumer Protection Act, rules and regulations related to websites, mobile applications telemarketing, text messaging (including as to SHAFT content, Opt-In and Opt-Out, do-not-call lists, CAN-SPAM Act) and the usage and compliance directives of FoodTec’s Messaging Platform Vendors and their respective Telecommunications Carriers (ix) an undertaking required by Messaging Platform Vendors, Delivery Services and/or Third Party Services that FoodTec’s clients must indemnify one or more of them for proscribed activities, (x) Client’s compliance with all applicable federal, state and local laws, rules and regulations applicable to sales taxes, labor, rules, or Personally Identifiable Information whether relating to Client Personnel or Consumers (xi) Client’s handling of credit and debit cards and Consumer transactions in connection with the Licensed Restaurant, (xii) any damage, destruction or loss of Hardware-as-a-Service items, and (xiii) any Claims resulting from the use of the API by Client, in all instances excepting only to the extent to which such Claims are directly caused by the gross negligence or willful misconduct of FoodTec or any of the FoodTec Indemnified Parties.
(b) FoodTec shall provide prompt written notice of its Claim for indemnification to Client, provided, that failure to give prompt notice shall not affect Client’s obligations under the preceding subsection hereof and then only to the extent that the failure materially prejudices the defense of the Claim. Client may select counsel to defend FoodTec in respect of any indemnified Claim, provided that the counsel selected must, in FoodTec’s judgment, be qualified to defend the indemnified Claim. FoodTec shall keep Client fully informed of the status of the Claim, including all communications from the claimant, and shall cooperate with Client, at Client’s expense, with respect to any judicial proceeding or dispute resolution procedure. Client 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 CLIENT OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE FOODTEC 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 IN THE AGGREGATE TO THE AMOUNT PAID BY CLIENT FOR SUCH FOODTEC PRODUCTS, SOLELY WITH RESPECT TO THE LICENSED RESTAURANT, DURINGTHE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT SHALL FOODTEC OR ANY OTHER FOODTEC INDEMNIFIED PARTIES BE LIABLE FOR ANY
(d) FOODTEC SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF ANY FOODTEC PRODUCTS, OR THE TERMINATION OR NON-RENEWAL OF THESE TERMS AND CONDITIONS, BE LIABLE TO CLIENT 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 CLIENT’S BUSINESS. EXCEPT FOR EXPRESS WARRANTIES STATED IN THESE TERMS AND CONDITIONS, IF ANY, THE FOODTEC SOLUTION AND OTHER FOODTEC PRODUCTS ARE PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CLIENT.
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, INCLUDING AS TO THE USE OF THIRD-PARTY SERVICES OR PRODUCTS SELECTED OR SPECIFIED BY CLIENT. Without limiting the foregoing, in no event is FoodTec obligated to implement any Feedback, whether as a matter of suitability of a FoodTec Product or otherwise.
12. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES AS TO THE FOODTEC SOLUTION, INDIVIDUAL FOODTEC PRODUCTS AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY, USE, OR ERROR-FREE OPERATION, ARE DISCLAIMED IN THEIR ENTIRETY BY FOODTEC.
CLIENT WAIVES, AND FOODTEC EXPRESSLY DISCLAIMS LIABILITY FOR, ANY CLAIMS HEREUNDER AGAINST FOODTEC FOR LOSS OF RESTAURANT DATA (a) ARISING FROM CLIENT’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, (b) AS A RESULT OF A FAILURE OR BREACH OF CLIENT’S SECURITY FOR ITS SYSTEMS OR DATA, (c) ARISING FROM CLIENT’S FAILURE TO COMPLY WITH ANY LAWS OR GOVERNMENTAL RULES OR REGULATIONS, INCLUDING THE FAILURE OF CLIENT’S SYSTEMS TO COMPLY WITH SUCH LAWS, RULES OR REGULATIONS, AND/OR (d) AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CLIENT’S SYSTEMS, WHICH SUCH UNAUTHORIZED ACCESS CLIENT ACKNOWLEDGES CANNOT IN ALL CASES BE PREVENTED EVEN IF REASONABLE STEPS HAVE BEEN TAKEN. Services hereunder necessitated by any of the foregoing are not covered under these terms and conditions. If requested by client, 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.
13. Term. (a) The Effective Date, or Effective Update Date of these Terms and Conditions may predate the commencement of the Initial Term or any Renewal Term under a Sales Contract or other FoodTec Agreements unless expressly provided otherwise therein. The duration of Client’s initial purchase is set forth in the Sales Contract (the “Initial Term”), Unless otherwise provided in a Sales Contract, or other FoodTec Agreement, the Initial Term will commence upon the Go Live Date at the Licensed Restaurant . Thereafter, the Sales Contract 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 the Sales Contract and the other FoodTec Agreements.
(b) If no FoodTec Agreement is in effect with respect to Client or no Initial Term is set forth in the Sales Contract, then the Initial Term shall be for a period of five (5) years from the earlier to occur of (a) the date of completion of the installation of the FoodTec Solution or (b) the date that Client deploys any Services and shall renew as provided above.
14. Default (a) The occurrence of any of the following shall constitute an event of default under any or each of the FoodTec Agreements (each, an “Event of Default”), at FoodTec’s election: (i) Client 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) Client 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) Client 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, (iv) Client 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, (v) Client fails to meet any other reasonable requirements established by FoodTec, (vii) Client becomes insolvent, dissolves, liquidates, terminates its existence or assigns its assets for the benefit of its creditors, (viii) the institution of a bankruptcy or reorganization proceeding by Client, (ix) a custodian or receiver is appointed for Client or any of its property, (x) the institution of a bankruptcy or reorganization proceeding filed against Client, and such appointment or proceeding is not terminated or dismissed within thirty (30) days, or (xii) all or substantially all of the assets of Client are seized or attached.
(b) Upon the occurrence of an Event of Default: (i) FoodTec shall have the immediate right in its sole discretion, as cumulative remedies, with or without notice or demand and with or without legal proceedings, to (A) remotely disable or remove the FoodTec Solution in the entirety and/or any FoodTec Products, if any, rendering them inoperable by, or inaccessible to Client,(B) immediately suspend or discontinue any and all Services to Client, (C) terminate any Sales Contract, portion of a Sales Contract, or to delay the shipment or further performance thereof, (D) enter any premises where the FoodTec Products are located and take possession of them, (E) file a UCC financing statement or similar document with the appropriate filing authority to secure FoodTec’s rights in Client’s property and assets, (F) terminate any of the FoodTec Agreements, and (ii) Client shall (A) immediately pay all amounts then due under any of the FoodTec Agreements, including the Early Termination Fee calculated by FoodTec under Subsection 14(c) below, (B) pay the amount of any and all promotional discounts set forth in the Sales Contract, all of which Client forfeits due to the Event of Default, and (C) reimburse FoodTec for all expenses that FoodTec reasonably has incurred in connection with Client’s default, including reasonable attorneys’ fees and costs. At its option, and at its sole discretion, FoodTec may curtail any Messaging Services or Third Party Services, which shall not preclude FoodTec from subsequently determining that an Event of Default has occurred..
(c) Upon the occurrence of an Event of Default Client shall pay the Early Termination Fee immediately upon termination, and Client authorizes FoodTec to deduct the total amount from Client’s Designated Account. As a measure of the direct damages incurred by FoodTec resulting only from Client’s failure to complete the Term, and not as a penalty, upon an Event of Default FoodTec shall be entitled to immediate payment of an Early Termination Fee calculated as the sum of the following: (i) all accrued but unpaid Fees due FoodTec as of the Event of Defaults, (ii) all fixed monthly Fees multiplied by the number of months remaining to the unexpired Term, or Renewal Term, as applicable, plus (iii) in instances where Client 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, Hardware-as-a-Service, monthly support service fees, SMS, MMS or other communications services, support contracts and other varying fees or assessments imposed by FoodTec (altogether “Variable Fees”), Client agrees that the Variable Fee component of the Early Termination Fees is reasonably approximated and liquidated to be equal to the average of the aggregate monthly Variable Fees payable by Client to FoodTec under Client’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 unexpired Term prior to the Event of Default or Early Termination.
15. Return of Hardware. Any new and unused Hardware 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 Hardware has been used, FoodTec will assess a charge of up to seventy percent (70%) of the price of the Hardware or may decline their return. No other returns shall be permitted. Orders placed by the Client 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). Upon payment in full of all sums due under the FoodTec Agreements for any Hardware, the Client may transfer, assign or otherwise convey such Hardware. This Section 15 does not apply to Hardware provided to Client as Hardware-as-a-Service.
16. Confidentiality. Whether or not the Parties, prior to the adoption of these Terms and Conditions through the execution of a Sales Contract or other FoodTec Agreement, entered into any mutual or one-way confidentiality agreements, the provisions of this Section expressly supplement the same in with respect to the disclosure, use, safeguarding and disposition of FoodTec Confidential Information implementation of any Sales Contract or FoodTec Agreements. “FoodTec Confidential and Proprietary Information” encompasses the FoodTec Solution, inclusive of all FoodTec Products, Modules, and components, together with all information relating to the development, operation, maintenance and access to same disclosed or otherwise accessed by Client and/or Client Personnel further to a Sales Order or any other FoodTec Agreements. In no event Client, or Client Personnel use any FoodTec Confidential and Proprietary Information except as expressly licensed hereunder. Any disclosure, copying, creation of derivative works, performance, distribution of FoodTec Confidential and Proprietary Information is strictly prohibited. Client and Client Personnel shall maintain and safeguard FoodTec Confidential and Proprietary Information in a manner no less protective than used in connection with Client’s own highly confidential information and trade secrets. Upon termination of any Sales Contract or other FoodTec Agreements Client will delete or destroy all embodiments of FoodTec Confidential and Proprietary Information at FoodTec’s direction, and provide assurance that such instructions have been implemented.
17. Retention of Rights; License. As between the Parties FoodTec retains all rights, title and interest, in and to the FoodTec Products, (excluding only Hardware, which is sold, rather than provided on a Hardware-as-a-Service basis). FoodTec grants Client a non-exclusive, non-transferable, revocable license through Client Personnel to use those FoodTec Products that are Software as identified in the Sales Contract, in the operation of the Licensed Restaurant, in a manner consistent with the intended usage set forth in Documentation. The Software is licensed, not sold Client’s use of the Software (whether or not on any Hardware sold or provided on a Hardware-as-a-Service basis hereunder) constitutes assent to these Terms and Conditions, and any Legacy Licensing Documents, as applicable. Any Feedback provided to FoodTec is accompanied by an exclusive, perpetual, irrevocable, transferrable license to make, use and sell any element thereof as FoodTec may elect to include or implement the same in one or more FoodTec Products. Except as expressly provided in a Statement of Work, FoodTec retains all rights with respect to the results of Professional Services (other than as to Restaurant Data) whether or not incorporated into any deliverables, and Client is licensed to make use of the same to the full extent of the license with respect to the FoodTec Solution.
18. License Restrictions. The Software license grant to Client provided by the preceding Section 17 is expressly subject to the following restrictions, Client and Client Personnel shall not: (a) either directly or through a Third Party, disclose, copy, distribute, reverse engineer, decompile, modify, disassemble or create any derivative work with respect to the Software, APIs, Documentation; (b) use the Software or any FoodTec Products licensed with respect to the Licensed Restaurant for any other location, (c) use the Software or any FoodTec Products as a service bureau, or provide as a reseller any FoodTec Products to any Third Party; (d) assign or otherwise convey the Software, any Documentation or License Keys, (e) share access credentials or license keys issued to it, and in the event of any conclusion or early termination of a scope of work further to which Client provided a Permitted Contractor access to the same, its shall notify FoodTec cooperate with the use of replacement credentials and or license keys; (f) provide API access or related Documentation to a Third Party unless FoodTec has obtained a API License and Linking Agreement; and/or (g) engage in, assist or permit any Third Party in the benchmarking of the operation of the FoodTec Solution or any FoodTec Products against the products of any Third Pary, nor disclose, publish or distribute the same.
19. Injunctive Relief. In the event of a breach or threatened breach by Client of any material provision of any FoodTec Agreements, including any of Client’s undertakings set out in Section 16 (“Confidentiality”), Section 17 (“Retention of Rights”), and/or Section 18 (“License Restrictions”) FoodTec shall be entitled to the entry of immediate injunctive relief, Client having acknowledged that: (a) its breach or threatened breach of any such provision(s) would cause irreparable harm to FoodTec, (b) it waives any requirement that FoodTec show damages, (c) in the context of the enumerated provisions there is no adequate remedy at law, and monetary damages would be insufficient compensation for past or ongoing breach, and that the prospect of monetary damages are and insufficient deterrent, and (d) that Client has waived the requirement that FoodTec be required to post a bond or other form of security to obtain an injunction to cover any loss or damage that may be incurred by the wrongful restraint of Client, and (e) Client waives its right to contest the final court order. Client may seek injunctive relief with respect to as to Section 16 (“Confidentiality”) subject to the remaining provisions of these Terms and Conditions.
20. Further Assurances. Client agrees to execute, acknowledge, seal and deliver, after the date hereof, without additional consideration, such further assurances, instruments and documents, and to take such further actions, as FoodTec may reasonably request in order to fulfill the intent of any Sales Contract or other FoodTec Agreement and the transactions contemplated thereby.
21. Survival. The provisions of these Terms and Conditions shall survive the termination or expiration of any sales Contract or other FoodTec Agreements, and shall continue in effect for so long as they remain applicable.
22. Force Majeure. In the event FoodTec shall be delayed or hindered in, or prevented from the performance of, any act required, hereunder by reason of one or more Force Majure events, then performance of such act shall be excused for the period of such delay. “Force Majeure” means any strike or other labor trouble, fire, flood or other casualty, breakage, accident, repairs, unusually severe weather, disease, epidemic, pandemic, quarantine, governmental preemption of priorities or other controls in connection with a national or other public emergency, governmental moratoria, or inaction of governmental authority (or shortages of fuel, supplies or labor resulting therefrom), loss of power, power grid instability, denial of service attacks, war, civil commotion, labor or transportation difficulties, inability to obtain supplies, materials or services, or any other cause, whether similar or dissimilar, beyond FoodTec’s reasonable control.
23. Savings. 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, shall survive such termination.
24. Choice of Law; Jurisdiction and Venue. 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, and waive any and all objections to venue therein, whether based upon the doctrine of forum non conveniens, or otherwise. FoodTec and Client 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, or any FoodTec Agreements.
25. No Assignment/Transfer. These Terms and Conditions, and FoodTec Agreements, are neither assignable nor transferable by Client, whether voluntarily, by operation of law, by merger or stock sale or otherwise, without the prior written consent of FoodTec. Any approved assignee or transferee shall execute a written agreement assuming the obligations hereunder and Client shall remain liable hereunder. These Terms and Conditions shall be binding upon and inure to the benefit of FoodTec and Client, and to their respective successors and assigns; provided, that, if FoodTec has consented to Client’s assignment or transfer of any FoodTec Agreements and these Terms and Conditions, Client and its successors and assignees may incur certain transfer charges payable to FoodTec at then-prevailing rates. Client acknowledges and agrees that FoodTec may, and is permitted to, subcontract certain of its obligations under these Terms and Conditions.
26. No Waiver. 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 or forbearance in any any instance shall serve as waiver or forbearance in any other instance. 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.
27. Usage. 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.
28. Notices. All notices and other communications of a party shall be in writing and given (a) by hand; (b) by certified or registered mail with an acknowledgment of receipt, postage prepaid, return receipt requested; or (c) 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 the Commonwealth of Massachusetts.
29. Entire Agreement; Counterparts; Electronic Signature; Conflicts. These Terms and Conditions and the other FoodTec Agreements constitute the entire agreement between Client and FoodTec with respect to its subject matter. Client 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. FoodTec Agreements may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement together with these Terms and Conditions, whether or not appended thereto. Client affirms its intention to enter into the Sales Contract by use of electronic means, including as to the use of an electronic signature generated through the Docusign system. 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 Client may issue in connection with these Terms and Conditions, these Terms and Conditions shall govern. FoodTec rejects all terms of Client’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.
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EXHIBIT A
FoodTec Services
“Support Services”
The Support Services include five specific components listed below. The Support Services expressly exclude the out-of-scope professional services listed below (“Professional Services”). All Support Services are provided in accordance with the Service Goals set forth in Exhibit B to the Terms and Conditions.
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Software Support – This support is defined as break/fix support of FoodTec Software. Requests for support may be called in or emailed by store operators at the Help Desk. and currently include Level 1 (basic calls), Level 2 (advanced/escalated calls), and Level 3 Priority Levels (calls which may require the attention of the FoodTec software development team). All calls into the FoodTec Help Desk are categorized by Priority Level. The purpose of Software Support is to resolve a problem that involves Software issues for FoodTec’s standard offering and to help assist with Hardware (sold by FoodTec) issues if they arise.
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Software Maintenance – As part of the Support Services, FoodTec at its sole discretion, provides enhancements and bug fixes for existing Products. Software maintenance is provided by FoodTec for Products sold originally to Client which are released periodically and described in Release Notes. Support Services must be purchased and paid for by Client for this support to occur.
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Help Desk – The FoodTec Help Desk answers phone calls and emails to help resolve issues related specifically to break/fix requests that may involve Hardware issues and/or Software problems. Each call is logged into the FoodTec case management system which tracks the key information relating to the store and contact. The reported problem is time/date stamped for tracking from inception to resolution. The FoodTec Help Desk will triage the request and categorize the call by Priority Level and direct the call to the appropriate FoodTec personnel. Calls which cannot be resolved by a Level 1 Help Desk analyst will be escalated to a Level 2 or other FoodTec resources as needed. Requests that are not break/fix in nature will be directed to FoodTec’s professional services department, which provides scheduled support for optional Professional Services at a Standard Rate.
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System Monitoring (24/7) – The Support Services include an automated monitoring system designed to help diagnose problems or potential issues before they are reported to the Help Desk, including certain Hardware, Software, and networking performance (e.g. internet down, corrupted hard drives).
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Loss Prevention Application- The Support Services include a Software solution integrated with the POS application that identifies certain exception transactions and supports video feeds for up specific number of FoodTec provided third-party cameras and accessories (hardware/installation not included). Support for additional camera feeds is available at an additional cost.
Note- Any requests related to Software or Software-as-a-Service Products beyond what is listed above is out of scope as Support Services. These are typically available as Professional Services.
“Professional Services”
Professional Services are available on a scheduled basis at FoodTec’s prevailing hourly rates. Professional Services are not part of the Service Level Goals and should not be expected to receive the Priority Level classification listed in Exhibit B.
The following is a partial list of the most common Professional Services and it is not exhaustive. Requests for Professional Services must be made directly through the FoodTec Professional Services Department and will require a signed supplemental Statement of Work in order to proceed. If requested by Client, FoodTec will attempt to provide Professional Services on a first in/first out basis based on availability of FoodTec’s professional services staff during normal business hours.
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Menu changes, additions, promotions, offers, and database change requests
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Consulting Services
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Additional Training (unless it is included in the Sales Contract or Statement of Work)
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Project Management
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Design/build/branding services for on-line ordering User Interface
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Design/build/branding services for mobile application User Interface
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New third-party integrations or API’s (third party apps, such as payroll services)
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On-going menu management, or marketing requests
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Exhibit B
FoodTec Support Plan Service Goals
FoodTec offers Support Services for Software, Software-as-a-Service, Hardware warranty for FoodTec provided items, and Hardware-as-a-Service. Here is an explanation of the Service Goals and the response and resolution goals for each priority level. All times are goals and estimates only.
Each Software and/or Software-as-a-Service support request is assigned a Priority Level as part of the initial analysis and triage of the incoming call.
This is an explanation of the priority levels and approximate response/resolution goals for each priority level:
P1 – Store Down – Store cannot function with no obvious workaround; business is completely halted.
Response Time**: Within 60 Minutes. Resolution Time: Within Four (4) hours.
(Examples are network failure)
P2 – Business Interruption – Store functions; limited functionality
Response Time: Within 2 Business Hours Resolution Time: Within 8 Business Hours***
(Examples: Single terminal not functioning, single printer down, internal network down, 1 of 4 available cash boxes not opening)
P3 – Non-Critical – Store functions; no business disruption
Response Time: Under 16 Business Hours. Resolution Time: Within 24 Business Hours
(Examples are reporting questions)
S – Scheduled Tasks – Optional, out-of-scope, service not included in the support agreement will be scheduled with a promise time established between the Client and the FoodTec Professional Services representative. Normally, 2-5 business days. Emergency or expedited professional services rates may be available at an additional cost. Typical out-of-scope services include, but are not limited to, menu changes, promotions, inventory/recipe adjustment, database changes, training, etc.
* FoodTec Technical Support will attempt to achieve results exceeding these metrics whenever possible. There is no guarantee FoodTec will meet the above response or resolution times. Out-of-scope issues (e.g. third-party software) are not covered under the support agreement and do not qualify under this support program (e.g. internet down). Timely cooperation and communication with store level personnel may be required.
** “Response Time” means the elapsed time between the receipt of a service call and the time when Provider begins the maintenance and support, including a verbal or written confirmation to Client thereof.
*** “Business Hours” means the hours between 9:00am and 6:00pm Eastern Time on any day other than a Saturday, Sunday, bank holiday or public holiday in The Commonwealth of Massachusetts.
These support guidelines apply to Software support only and to prepaid support Clients whose accounts are in good standing.
Any Hardware support, repair, and replacement covered under the manufacturer’s warranty will be facilitated by FoodTec if the Hardware item was purchased from FoodTec. Any Hardware purchased from others is NOT covered by FoodTec. Any requests for assistance with Hardware purchased from third parties are not supported. Hardware-as-a- Service items will receive support, and replacement where applicable, by FoodTec despite the expiration of the manufacturer warranty.
Note: Hardware replacement, if applicable, normally takes 1-2 Business Days for in-stock items PLUS standard ground shipping time from FoodTec to the Client. Expedited shipping (e.g. 2 day or overnight) may be available at an additional cost and is not included.
FoodTec shall not be responsible for the failure to meet any guidelines caused by a Force Majeure event.