Understanding Our Terms and Policies
PLEASE READ THESE MASTER TERMS ("TERMS") CAREFULLY BEFORE USING THE SERVICES OFFERED BY KITCHEN365, INC. ("KITCHEN365"). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH KITCHEN365 THAT REFERENCE THESE TERMS (EACH, AN "ORDER FORM"), YOU ("DEALER") AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM THAT YOU SUBMIT VIA KITCHEN365'S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY KITCHEN365 SHALL BE DEEMED TO BE MUTUALLY EXECUTED. UPON MUTUAL EXECUTION, EACH ORDER FORM SHALL BE INCORPORATED INTO AND FORM A PART OF THE AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Subject to the terms and conditions of this Agreement, Kitchen365 will perform certain services for Dealer (the "Services") undersigned Order Forms that may be entered into by the parties from time to time.
a. Website Services: In the event Dealer enters into an Order Form to purchase certain Services, which may include website development and maintenance, certain add-on features such as chatbots and web-to-text features, email hosting, blogging and/or social media engagement (the "Website Services"), Kitchen365 will provide such Website Services as outlined in such Order Form and subject to these Terms. To the extent Kitchen365 creates any content, information, or other materials in connection with the Website Services ("Website Materials"), Kitchen365 shall own and retain all rights, title, and interest in and to such Website Materials and all associated Intellectual Property Rights. If the Dealer owns the Domain Name, Kitchen365 now grants to the Dealer a limited, revocable, non-sublicensable, non-transferable right and license to display Website Materials on such Domain Name during the applicable Order Form Term (as defined below). In addition, Kitchen365 grants the Dealer a limited right and license to access and use specific data, information, and other materials generated by, collected from, or otherwise provided to Kitchen365 by Website visitors ("Website Information") solely for the Dealer's internal business purposes and solely by any applicable laws, the relevant Website privacy policy and any restrictions as may be further specified by Kitchen365 from time to time. "Website" means the website displayed at the URL outlined in the applicable Order Form for Website Services (the "Domain Name"). "Intellectual Property Rights" means any patents, copyrights, trade secrets, trademarks, and other proprietary or intellectual property rights recognized in any jurisdiction worldwide, including, without limitation, moral rights.
b. Digital Advertising Services: In the event Dealer enters into an Order Form to purchase certain Services, which may include planning and management of the display or delivery of paid online search and other online advertisements on specific third-party search engines (e.g., Google, Bing) and/or social media (e.g., Facebook, Instagram) platforms and reporting and analysis of identical ("Digital Advertising Services"), Kitchen365 will provide such Digital Advertising Services as outlined in such Order Form and subject to these Terms. Upon the parties' mutual signature of an Order Form that includes Digital Advertising Services, the Dealer hereby authorizes Kitchen365 to sign up, on the Dealer's behalf, with applicable third-party search engine and social media platforms outlined in such Order Form for digital advertising accounts. Dealer hereby represents and warrants that it agrees to, is bound by, and will abide by the Google terms of service located at https://policies.google.com/terms, as may be updated by Google from time to time, the Facebook terms of service located at https://www.facebook.com/legal/commercial_terms, as may be updated by Facebook from time to time and/or the Microsoft terms of service located at Microsoft.com/en-us/servicesagreement, as may be updated by Microsoft from time to time (as applicable). Dealer shall provide Kitchen365 with all reasonably necessary assistance to enable Kitchen365 to perform the Digital Advertising Services.
c. Flooring Stores United Network Services: In the event the Dealer enters into an Order Form to purchase certain Services related to the Flooring Stores United Network ("Flooring Stores United Network Services" or "Network Services"), Kitchen365 will provide such Network Services as outlined in such Order Form and subject to these Terms. As part of the Network Services, Kitchen365 will connect the Dealer with certain manufacturers, distributors, or other providers of flooring products ("Manufacturers") in the Network, such that the Dealer can purchase certain flooring products promoted, sold, shipped, distributed or otherwise made accessible to Dealer by a Manufacturer ("Products") and resell such Products to end customers in the geographical area specified in the applicable Order Form ("Territory") by the terms outlined in these Terms and the relevant Order Form. "Flooring Stores United Network" or "Network" means Kitchen365's network of participants in the flooring industry. In addition, as part of the Network Services, Kitchen365 will develop, design, create, and otherwise make advertisements or other marketing materials ("Ads" or "Advertisements") promoting or otherwise marketing Dealer, and Kitchen365 will display and otherwise distribute such Advertisements to end customers and other third parties. Dealer shall maintain complete and accurate records applicable to all Products purchased by Dealer during the term of the Network Services Order Form and shall retain such records for two (2) years from the date of the applicable Product purchases. Kitchen365 shall have access to all such records at most one (1) time per year to verify the Dealer's compliance with the terms and conditions of this Agreement. Dealer shall cooperate with Kitchen365 by providing Kitchen365 with access to Dealer's records within seven (7) days of Kitchen365's request. Such records will be examined at a mutually agreeable time and place.
d. Kitchen365 Payment Services: By entering into an Order Form to purchase Services related to payment processing services ("Kitchen365 Payment Services"), Dealer may establish an account ("End-User Account") with Fattmerchant, Inc. (doing business as Stax), an independent service organization and Kitchen365's third-party payment services provider ("PSP") to accept electronic payments for goods and services and use other services made available to dealers generally by the PSP. Dealer acknowledges and agrees that the PSP and not Kitchen365 will provide the Kitchen365 Payments™ Services directly to Dealer under a Sub-Merchant Agreement between the PSP and Dealer ("Sub-Merchant Agreement"). The Order Form for Kitchen365 Payments™ Services explains the Kitchen365 Payments™ Services, the PSP's Privacy Policy, the terms of Kitchen365's access and use of data associated with the End-User Account, and any other activities that Kitchen365 may perform concerning the Kitchen365 Payments™ Services. The Order Form for Kitchen365 Payments™ Services authorizes Kitchen365 to communicate relevant data concerning the End-User Account to the PSP. Dealers will also have access to the Kitchen365 Payments™ Services online portal (the "Payments Portal") through which Dealer may manage Dealer's End-User Account.
e. Account: Kitchen365 will provide the Dealer with access privileges (an "Account") that permit the Dealer to access Kitchen365's digital portal, which may give specific insights, metrics, and other reporting applicable to the Services (the "Dashboard"). Dealers must provide accurate and complete information and keep the Account information updated. The dealer is solely responsible for the account's activity and keeping the account password secure. Dealer shall be responsible for the acts or omissions of anyone who accesses the Dashboard using passwords or access procedures provided to or created by Dealer. Kitchen365 hereby grants to Dealer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Dashboard through the Account during the Term solely for Dealer's internal business purposes.
f. Cooperation: Dealer will provide or otherwise make available to Kitchen365 any content (including without limitation photographs), descriptions, materials, trademarks, logos, and other information (collectively, "Dealer Materials") and other assistance (together with Dealer Materials, the "Dealer Resources") as may be necessary or reasonably requested by Kitchen365 in connection with its performance of the Services. Dealer bears all responsibility and liability for the accuracy, completeness, and timeliness of the Dealer Resources and acknowledges that Kitchen365's ability to complete any Services depends on the same. Dealer's failure to promptly perform any obligations under this Agreement shall relieve Kitchen365 of its dependent commitments to the full extent of such delay. Dealer, as a result of this, grants to Kitchen365 a limited, non-exclusive, worldwide, royalty-free right and license (including the right to sublicense to Manufacturers) during the Term to access, use, edit, modify, translate, publish, display, distribute, and create derivative works of Dealer Materials for use in connection with the Services. Dealer hereby acknowledges and agrees that Kitchen365 shall have no obligation to retain, store, or otherwise make accessible to Dealer any Dealer Materials provided by or on behalf of Dealer to Kitchen365 under this Agreement (including without limitation any website content previously used by Dealer), and Kitchen365 shall not be liable for any loss or destruction of any Dealer Materials.
g. Restrictions: Except as expressly permitted in this Agreement, Dealer shall not directly or indirectly (i) use any of Kitchen365's Confidential Information (as defined below) to create any service, software, documentation, or data that is similar to any aspect of the Services; (ii) disassemble, decompile, reverse engineer, or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms, or trade secrets therein (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (iii) encumber, sublicense, transfer, rent, lease, time-share, or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (iv) copy, crawl, scrape, spider, distribute, manufacture, adapt, create derivative works of, translate, localize, port, or otherwise modify any aspect of the Services (through use of manual or automated means); (v) jeopardize the security of any user account on the Services, including without limitation Dealer's Account (such as by allowing an unauthorized person to log in to the Services), attempt, in any manner, to obtain the password, account, or other security information from any other user of the Services, or violate the security of any computer network, or crack any passwords or security encryption codes; (vi) use or allow the transmission, transfer, export, re-export, or other transfer of any product, technology, or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (vii) permit any third party to engage in any of the foregoing proscribed acts. Dealers may not access or use (or permit a third party to access or use) the Services to monitor the availability, performance, or functionality of the Services or for any other benchmarking or competitive purposes.
h. Privacy/Security: Dealer must have and enforce a privacy policy that complies with all applicable laws, rules, and regulations, including without limitation the treatment of all personal information by European Union and other non-U.S. applicable laws and governing authorities to the extent that Dealer sells into international marketplaces or otherwise is subject to the laws of those authorities. Dealers must secure buyer information and not allow buyer information to be disclosed except by the Dealer's privacy policy. Dealers must establish security processes to protect personal information by applicable law and at least as restrictive as industry standards, but at least reasonable care. Dealer acknowledges that Dealer's information and buyers' information (personal or otherwise) may be transmitted to the United States or European Union and other non-U.S. jurisdictions due to Kitchen365 providing the Services. In accessing the Payments Portal as permitted under the Agreement, the Dealer must report any security breaches promptly to Kitchen365. The dealer is responsible for any violations of security that occur through the Dealer's access or login credentials of the Dashboard, Dealer's Account, or Payments Portal.
a. Fees: Considering the Services provided to the Dealer by Kitchen365 hereunder, the Dealer agrees to pay Kitchen365 fees following the fee schedule outlined in the applicable Order Form (the "Fees"). The Fees during any Renewal (as defined below) may be increased by Kitchen365 upon notice at least fifteen (15) days before the end of the then-current Order Form Initial Term (as defined below) or Renewal (as applicable).
b. Payment: Kitchen365 shall invoice the Dealer by the invoicing schedule outlined in the applicable Order Form. If no invoicing schedule is set forth on an Order Form, Kitchen365 shall invoice the Dealer monthly. The dealer will pay all invoices within thirty (30) days of the invoice date. Past due amounts not subject to a good faith dispute shall bear a late payment charge until paid at one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition to its other rights and remedies, Kitchen365 may, at its option, suspend the Dealer's access to the Services or terminate this Agreement if the Dealer is not currently in the payment of any amounts owed to Kitchen365. Except as may be expressly set forth on an applicable Order Form for Payment Services, Network Services, Website Services, and/or Digital Advertising Services, all amounts due hereunder are non-refundable and non-cancelable.
c. Credit Card: In the event the Dealer elects to pay the Fees due via credit card, the following terms shall apply:
i. Billing: Kitchen365 will use a third-party payment processor (the "Payment Processor") to bill the Dealer for the Services through a payment account linked to the Dealer's Account (the "Billing Account"). Payment processing will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to this Agreement. Currently, Kitchen365 uses Stripe, Inc. as the Payment Processor. Dealers can access Stripe's Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. Kitchen365 is not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to pay for the Services using a credit card, the Dealer agrees to pay Kitchen365, through the Payment Processor, all Fees due for the Services under the payment terms set forth on the applicable Order Form. Dealer authorizes Kitchen365, through the Payment Processor, to charge Dealer's chosen payment provider (the "Payment Method"). The dealer agrees to make payment using that selected Payment Method. Kitchen365 reserves the right to correct any errors or mistakes that the Payment Processor makes, even if it has already requested or received payment.
ii. Payment Method: The terms of the Dealer's payment will be based on the Payment Method. Agreements between the Dealer and the financial institution, credit card issuer, or other provider of the chosen Payment Method may determine them. If Kitchen365, through the Payment Processor, does not receive payment from the Dealer, the Dealer agrees to pay all amounts due on the Billing Account upon demand.
iii. Recurring Charges: Dealer acknowledges that the Services may have an initial and recurring payment feature, and Dealer accepts responsibility for all recurring charges before termination of the applicable Services. Kitchen365 MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM DEALER UNTIL DEALER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY Kitchen365) THAT DEALER WISHES TO CHANGE THE PAYMENT METHOD OR UNTIL THE APPLICABLE ORDER FORM IS TERMINATED OR EXPIRES. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE Kitchen365 REASONABLY COULD ACT.
iv. Current Information Required: DEALER MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. DEALER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP THE BILLING ACCOUNT CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). DEALER MUST PROMPTLY NOTIFY Kitchen365 OR THE PAYMENT PROCESSOR IF THE PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF DEALER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF DEALER'S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE BY CONTACTING Kitchen365 AT BILLING@Kitchen365.COM. Suppose DEALER FAILS TO PROVIDE ANY OF THE preceding INFORMATION. In that case, DEALER AGREES THAT Kitchen365 MAY CONTINUE CHARGING DEALER FOR THE SERVICES UNDER THE BILLING ACCOUNT UNTIL THE APPLICABLE ORDER FORM IS TERMINATED OR EXPIRES.
v. Change in Amount Authorized: Suppose the amount to be charged to the Billing Account varies from the amount the Dealer preauthorized (other than due to the imposition or change in state sales taxes). In that case, the Dealer has the right to receive, and Kitchen365 shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement the Dealer has with the payment provider will govern the Dealer's use of the Payment Method. Dealers agree that Kitchen365 may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
d. Taxes and Expenses: All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including, without limitation, sales taxes, use taxes, and value-added taxes). The Dealer agrees to bear and be responsible for paying all such charges, excluding taxes, based upon Kitchen365's net income.
a. By Dealer: Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Dealer (and its licensors) shall retain all rights, title, and interest (including all Intellectual Property Rights) in and to Dealer Materials, Dealer Confidential Information and Domain Name (solely in the event Dealer purchased the Domain Name). All goodwill arising from Kitchen365's use of Dealer's trademarks and logos shall be insured exclusively for the benefit of Dealer. Dealer acknowledges and agrees that Kitchen365 shall have no obligation to store any Dealer Materials after completion of the applicable aspect of the Services, except to the extent required by applicable law.
b. By Kitchen365: Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Kitchen365 (and its licensors) shall retain all rights, title and interest (including all Intellectual Property Rights) in and to the Services, Network, Dashboard, Kitchen365 Materials, Domain Name (solely in the event Kitchen365 purchased the Domain Name), Feedback, Kitchen365 Confidential Information and Third Party Materials, including all copies, modifications and derivative works of any of the foregoing.
c. Feedback; General Knowledge: Kitchen365 shall own all suggestions for correction, change, or modification to the Services and other feedback, information, and reports provided to Kitchen365 hereunder (collectively, "Feedback"). Dealer shall and hereby assign any rights in such Feedback to Kitchen365. In addition, for the avoidance of doubt, Dealer expressly acknowledges and agrees that Kitchen365 is free to reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) acquired during provision of the Services hereunder, including that it could have acquired performing the same or similar services for another dealer, and to collect and use for any purpose aggregated and anonymous data collected or derived from any use or performance of any aspect of the Services (provided that none of the foregoing specifically identifies Dealer) and produce materials therefrom, all of which are the sole and exclusive property of Kitchen365. In addition, Dealer acknowledges that Kitchen365 provides services similar to those provided under this Agreement to third parties, and Kitchen365 may create or otherwise provide certain content and other materials for third parties that are similar to the Website Materials, Website Information, Advertisements, and other information, content, data, and materials of any kind created or otherwise used by Kitchen365 in connection with the Services (collectively, the "Kitchen365 Materials").
a. Term: This Agreement shall commence as of the Effective Date and continue until terminated by the terms set forth herein (the "Term"). Unless otherwise outlined in an applicable Order Form, the initial term of each Order Form starts on the applicable Order Form Effective Date (as defined on the applicable Order Form). It continues for one (1) year after that ("Order Form Initial Term"). Upon expiration of the Order Form Initial Term, the applicable Order Form shall automatically renew for additional periods of the same length as the Order Form Initial Term (each, a "Renewal," and together with the Order Form Initial Term, the "Order Form Term"), unless either party provides written notice of its intent to not renew the applicable Order Form at least thirty (30) days before the end of the then-current Order Form Initial Term or Renewal. Notwithstanding the preceding, unless otherwise outlined in an applicable Order Form for Digital Advertising Services, the Order Form Initial Term for Digital Advertising Services is ninety (90) days from the applicable Order Form Effective Date. Each Renewal shall be monthly after that unless either party provides written notice of its intent to not renew the applicable Order Form for Digital Advertising Services at least 30 days before the end of the then-current Order Form Initial Term or Renewal.
b. Termination: Suppose either party materially breaches a material provision of this Agreement or any Order Form (including failure to make any payment due hereunder). In that case, the other party may terminate this Agreement or the applicable Order Form upon thirty (30) days prior written notice specifying the breach (ten (10) days for a failure to make any payment), and this Agreement or the applicable Order Form shall automatically terminate at the end of such period unless the breach is cured within such period. In addition, Kitchen365 may terminate this Agreement or any Order Form at any time for any reason, without penalty, which termination shall be effective at the end of the notice period outlined in such termination notice. Either party may terminate this Agreement (including all Order Forms) immediately upon written notice upon the occurrence of any of the following events: (i) any voluntary or involuntary filing in bankruptcy, reorganization or receivership or under similar laws for the protection of creditors, by or directed against the other party, which is not withdrawn within thirty (30) days of such filing; (ii) any assignment for the benefit of creditors; (iii) any liquidation or dissolution of the other party or the other party ceases to do business in the ordinary course; or (iv) Dealer's violation of Section 1 (g) [Restrictions].
c. Effect of Termination: The following Sections shall survive any termination of this Agreement: Sections 1(g), 2, 3, this 4(c), 5, 6(b), 7, 8 and 9. Suppose all Order Forms entered between the parties have been terminated or expired. In that case, Kitchen365 shall return to the Dealer any access keys, logins, or other credentials to Domain Names owned by the Dealer (if applicable).
a. Definition: "Confidential Information" means all information or material of a party that is provided to the other party, or to which the other party has access, that (i) is confidential or proprietary to the disclosing party, which derives economic value from not being generally known or is the subject of reasonable efforts by the disclosing party to maintain its secrecy; (ii) would, given the nature of the information or circumstances of disclosure, reasonably be considered confidential or proprietary; or (iii) the disclosing party obtains from any third party which the disclosing party treats as proprietary, whether or not owned by the disclosing party. For clarity, the terms of this Agreement are confidential information of both parties.
b. Exclusions: For purposes of this Agreement, "Confidential Information" shall not include information or material which (i) enters the public domain (other than as a result of a breach of this Agreement); (ii) was in the receiving party's possession before its receipt from the disclosing party; (iii) is independently developed by the receiving party without the use of Confidential Information; or (iv) is obtained by the receiving party from a third party under no obligation of confidentiality to the disclosing party.
c. Use and Disclosure Restrictions: Each party hereby agrees (i) to take all necessary precautions reasonably calculated to protect the other party's Confidential Information from unauthorized disclosure, access or use, exercising a degree of care not less than the care used by such party to protect its own Confidential Information that it does not wish to disclose, but in no event less than a reasonable degree of care; (ii) to use the other party's Confidential Information only for the performance of this Agreement and the exercise of any rights under this Agreement and for no other purpose; and (iii) not to disclose any Confidential Information, or any part or parts thereof, to any third party and/or any of its officers, directors, employees, advisors or counsel (collectively, "Representatives"), except that such party may disclose relevant aspects of the disclosing party's Confidential Information to its Representatives only to the extent such disclosure is reasonably necessary for the performance of such party's duties; provided however that each such Representative has agreed to be bound by confidentiality provisions at least as restrictive as the terms of this Agreement.
d. Additional Disclosures: Nothing herein shall prevent the receiving party from disclosing any Confidential Information as necessary under any court order, lawful requirement of a governmental agency, or when disclosure is required by operation of law (including disclosures according to any applicable securities laws and regulations), provided that before any such disclosure, the receiving party shall use reasonable efforts to (i) promptly notify the disclosing party in writing of such requirement to disclose (to the extent legally permitted by applicable law, rule or legal process) and (ii) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order. In addition, either party can provide a copy of this Agreement to its financial, legal, or other professional advisors or potential financing sources in connection with a bona fide due diligence request for a financing, merger, acquisition, or similar transaction.
e. Injunctive Relief: The parties acknowledge and agree that disclosing confidential information may result in irreparable harm for which no remedy exists. The parties, therefore, agree that the disclosing party may be entitled to seek an injunction if the receiving party violates or threatens to violate the provisions of this Section 5 and that no bond will be required. This remedy will be in addition to any other remedy available at law or equity.
a. Mutual: Each party represents and warrants that (i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder, (iii) this Agreement is legally binding upon it and enforceable by its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
b. By Dealer: Dealer represents and warrants that (i) it has sufficient right, title and interest in the Dealer Materials and any other data provided hereunder to Kitchen365 or to the PSP to grant the rights and licenses granted to Kitchen365 hereunder and to the PSP under the Sub-Merchant Agreement; (ii) the Dealer Materials, and Kitchen365, the PSP's and any Manufacturer's use thereof, do not infringe, violate or misappropriate any third party Intellectual Property Rights; (iii) there are no actual or threatened lawsuits, claims or proceedings alleging that the Dealer Materials violate any third party Intellectual Property Rights or applicable laws; (iv) the Dealer Materials and any content and/or services which refer, evidence or relate to the Dealer Materials are factually accurate and do not contain any (a) fraudulent, deceptive or misleading statements or (b) statements which discriminate, defame, misrepresent, ridicule or attack an individual or group on the basis of age, color, national origin, race, religion, sex, sexual orientation or handicap; (v) the Dealer Materials neither imply, promote nor make claims that cannot be readily verifiable or provable and (vi) the use, reproduction, distribution or transmission of Dealer Materials, including links to other content, do not violate any applicable laws.
c. Disclaimer: EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, NETWORK, DASHBOARD, WEBSITE, DOMAIN NAME, Kitchen365 MATERIALS, Kitchen365 CONFIDENTIAL INFORMATION, THIRD PARTY MATERIALS AND ANY OTHER SUBJECT MATTER UNDER THIS AGREEMENT ARE PROVIDED BY Kitchen365 "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND Kitchen365 HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM ERRORS, CORRECTNESS, ACCURACY, AND/OR RELIABILITY, AND ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. Kitchen365 DOES NOT WARRANT THAT THE NETWORK, DASHBOARD, WEBSITE, DOMAIN NAME, Kitchen365 MATERIALS, Kitchen365 CONFIDENTIAL INFORMATION, THIRD PARTY MATERIALS OR ANY SERVICES PROVIDED HEREUNDER WILL MEET DEALER'S EXPECTATIONS OR REQUIREMENTS. WITHOUT LIMITING THE PREVIOUS, ALL THIRD-PARTY MATERIAL (INCLUDING, WITHOUT LIMITATION, ANY MANUFACTURER OR OTHER NETWORK-RELATED MATERIALS) IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
Dealer shall defend, indemnify and hold Kitchen365, the PSP and their respective parents, subsidiaries and affiliates, and their respective officers, directors, employees and agents harmless from and against any loss, liability, damage, expense or cost (including reasonable attorneys' fees and expenses) (collectively, "Losses") in connection with any claims, actions, demands, suits, or proceedings, whether fixed or contingent, and whether or not adjudicated (collectively, "Claims"), arising from or in connection with any claim or allegation made or brought by a third party alleging (i) that any Dealer Materials infringe, violate or misappropriate any Intellectual Property Right of such third party; (ii) any breach by Dealer of Section 5 (Confidentiality) or Section 1 (h) (Privacy/Security); (iii) the inaccuracy, untruthfulness or breach by Dealer of any representation or warranty made by Dealer under this Agreement and (iv) Dealer's gross negligence, recklessness, fraud or willful misconduct.
b. Procedure: The applicable indemnified party shall give the indemnifying party prompt written notice of any Claim and provide reasonable assistance necessary to carry out the indemnifying party's obligations under this Section 7, provided that the indemnifying party shall reimburse the applicable Indemnitee's reasonable out-of-pocket expenses incurred in providing such assistance and provided further that the applicable Indemnitee's failure to promptly notify indemnifying party will affect indemnifying party's obligations solely to the extent that the applicable Indemnitee's failure prejudices indemnifying party's ability to defend the applicable Claim. The applicable indemnified party shall have the opportunity to participate in the defense and settlement of the claim at any time at its own expense with counsel of its choosing. Subject to the applicable indemnified party's prior written consent, the indemnifying party shall have no authority to settle any Claim that gives rise to such indemnified party's liability or fault.
IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, OVER THE AMOUNTS PAID OR PAYABLE TO Kitchen365 UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE FOREGOING SHALL NOT APPLY TO (I) A PARTY'S GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR FRAUD; (II) A PARTY'S BREACH OF CONFIDENTIALITY; (III) DEALER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (IV) DEALER'S PAYMENT OBLIGATIONS HEREUNDER.
a. Relationship of the Parties; Subcontractors: Under this Agreement, the parties shall be independent contractors, and nothing herein will constitute either party as the employer, employee, agent, or representative of the other party or both parties as joint venturers or partners for any purpose. Kitchen365 may utilize subcontractors to perform all or a portion of the Services.
b. Governing Law; Dispute Resolution: This Agreement shall be governed by and construed by the laws of the State of New York without regard to its conflicts of laws provisions. Exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the Borough of Manhattan, New York City, and New York, and both parties consent to the jurisdiction of such courts concerning any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
c. Assignment: This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld; provided, however, that Kitchen365 may assign this Agreement upon written notice to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, reorganization, consolidation or otherwise). This Agreement shall be binding upon and inure to the benefit of each party's successors, representatives, and permitted assigns.
d. Non-Solicitation: During the Term of this Agreement and for one (1) year after that, Dealer shall not, without Kitchen365's specific prior written consent in each case, directly or indirectly solicit, service, take orders from, interfere with Kitchen365's relationship with, induce, entice or encourage, or attempt to do any of the foregoing (collectively, "Solicit") any then-current employee, contractor, customer, supplier, licensor or other partner of Kitchen365 or any of its affiliates; provided that the preceding provision shall not apply to any employee of Kitchen365 who responds to any general advertisement or general solicitation not explicitly directed towards employees of Kitchen365.
e. Notices: All notices under this Agreement will be in writing and English and delivered to the parties at their respective addresses stated herein or at other addresses designated by written notice. Notices will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile; the day after being sent, if sent for next-day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
All notices to the Dealer shall be sent to the addresses outlined in the applicable Order Form or the most recently entered-in Order Form.
All notices to Kitchen365 shall be given to:
Kitchen365
2675 Breckenridge BLVD.
Suite 250
Duluth, GA 30096
f. Modification: Any modifications of this Agreement must be signed by a duly authorized representative of each party in writing.
g. Severability: Suppose any provision of this Agreement is held invalid or unenforceable in any respect. In that case, that provision shall be limited or eliminated to the minimum extent necessary, so this Agreement shall remain in full effect and enforceable.
h. Waiver: No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
i. Force Majeure: Neither Party shall be liable for any failure to perform any of its obligations under this Agreement due to unforeseen circumstances or causes beyond such Party's reasonable control for the duration of such unexpected circumstance or cause, including without limitation acts of God, acts of civil or military authorities, riot, embargoes, fire, earthquake, flood, accident, strikes, and inability to secure necessary transportation, facilities, fuel, energy, labor or materials.
j. Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. The Agreement may also be electronically accepted or executed by both parties.
k. Entire Agreement: This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.
25-27th Feb, 2025
Booth: #SL8105
Las Vegas