This Agreement (the “Agreement") is a legal agreement between the Merchant set forth on the registration page (“Merchant” or “Merchant”) and MunchEm, Inc. (“MunchEm”). This Agreement specifies the terms under which you may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting your assent to this Agreement, You agree to be bound by the terms of this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Merchant represents that he or she is an authorized representative of Merchant capable of binding it to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth here. The definitions for other defined terms are set forth elsewhere in this Agreement.
1 “Customer” means a party that submits an Order or Marketplace Order.
2 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
3 “Effective Date” means the date You accepted this Agreement.
4 “Merchant Content” means any content submitted by you to MunchEm, including, without limitation, the Menu.
5 “Merchant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Merchant Content.
6 “Term” has the meaning specified in Section 5.1.
7 “User” means an employee or agent of Merchant who accesses and uses the Platform on the terms and conditions of this Agreement.
8 “Additional Products and Services” means products and services, other than access to the OrderEm Platform, that You may order from MunchEm, including, without limitation, 3rd party delivery service integration which includes Uber and PostMates, website development services, marketing services, paper products, data connectivity, and Wireless Printers.
9 “Adverse Impact” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order or MunchEm Marketplace Order.
10 “Branded Apps” means the Merchant-branded mobile applications set up by MunchEm.
11 “Intellectual Property” has the meaning specified in Section 6.
13 “Menu” means your Merchant or Merchant menu submitted to MunchEm, as updated by you from time to time.
14 “Order” means a meal order for your food and/or beverages submitted by Customers through MunchEm via the Platform.
15 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
16 “Platform” means the OrderEm platform provided by MunchEm which include online ordering and table reservations, which may be amended by MunchEm from time to time, including: (i) the Branded Website and (ii) the Branded Apps.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Merchant and MunchEm (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. SUBSCRIPTION TO THE PLATFORM; LICENSES; COMPUTER AND WIRELESS PRINTERS; RESTRICTIONS ON USE; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, MunchEm hereby grants to Merchant during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Platform. Merchant shall be responsible to MunchEm for any and all acts or omissions of the Users. MunchEm reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability.
1.2 License Grants to Merchant Content and Merchant Marks.
a. Subject to the terms of this Agreement, Merchant hereby grants to MunchEm during the term of the agreement
(i) non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Merchant Content, in whole or in part, through the Platform and in connection with any services MunchEm performs for Merchant pursuant to the Additional Terms (as defined below), but solely to the extent necessary for MunchEm to perform such services. MunchEm’s license to modify the Merchant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to Merchant pursuant to the Additional Terms; and
(ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Merchant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Merchant; (2) in connection with MunchEm’s performance of any services pursuant to the Additional Terms; and (3) with the prior consent of Merchant, in connection with the marketing, advertising, and promotion of MunchEm and the Platform; provided, however, that pursuant to Section 10, MunchEm may list Merchant as a client of MunchEm and a user of the Platform without having to obtain Merchant’s consent. All goodwill generated by MunchEm’s use of the Merchant Marks as set forth herein shall inure to the benefit of Merchant.
b. MunchEm shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) (i) to any subcontractors performing services on MunchEm’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or MunchEm code embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to MunchEm with respect to the use of the Merchant Content and the Merchant Marks.
c. If Merchant uses 3rd party delivery services for example Uber or PostMates, refer to:
1.3 Restrictions on Use. Merchant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Branded Apps or the Data that is not expressly permitted under this Agreement. Without limiting the foregoing, Merchant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Branded Apps; (ii) modify, adapt, translate, or reproduce the Platform or the Branded Apps; (iii) resell, distribute, or sublicense the Platform or the Branded Apps; make the Platform or the Branded Apps available on a “service bureau” basis, or otherwise allow any third party to use or access the Platform or the Branded Apps; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform or the Branded Apps; (v) use the Platform, the Branded Apps or the Data in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (vi) introduce into the Platform or the Branded Apps any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
1.4 Additional Products and Services. Merchant may order Additional Products and Services at any time during the Term on notice to MunchEm, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms“), as the same may be amended by MunchEm from time to time.
1.5 Incorporated Terms. Your use of Clover, Square, Stripe, PayPal, and, if You are located in the United States or any of its possessions or territories, the On-Demand Delivery option, is subject to the following additional terms and conditions, which are hereby incorporated by reference and binding upon You and which may be updated by Google, Apple, Uber, and PostMates, respectively, from time to time without notice to You (the “Incorporated Terms”). In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, such Incorporated Terms shall govern with respect to your use of Clover, Square, Stripe, PayPal, and the On-Demand Delivery option. Google, Apple, Uber, and PostMates are not parties to any Order and will not be responsible for any disputes between you and any Customer.
2. REGISTRATION, MAINTENANCE OF ACCOUNT, AND MunchEm Online Ordering and API.
2.1 Registration. During the registration process, MunchEm requires you to create an account, which may include a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating you when Your Users log into the Platform in the future (“Unique Identifiers”). When creating the account, you must provide true, accurate, current, and complete information. Merchant is solely responsible for the confidentiality and use of Your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform MunchEm of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. MunchEm will not be liable for any loss or damage caused by any unauthorized use of your account.
2.2 Maintenance of Account. As MunchEm’s business evolves, it may require additional information, authorizations, and permissions from You after You register in order to provide you access to and usage of the Platform and perform its other obligations under this Agreement. When requested by MunchEm, You shall promptly provide all such information, authorizations, and permissions in accordance with MunchEm’s request. When doing so, you shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to You or immediate termination of your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so MunchEm can comply with its Know Your Customer obligations), MunchEm shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.
2.3 MunchEm Online Ordering. In order to integrate your website with the Platform, You hereby grant MunchEm the right, during the Term, to embed the MunchEm Online Ordering in your website. To the extent permission to do so is required from a third party acting on your behalf (e.g., your hosting provider, webmaster, etc.), you will assist us in promptly obtaining such permission and any necessary access credentials.
4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
4.1 Fees; Refund Policy; Taxes. As consideration for the rights granted in Section 1, Merchant shall pay MunchEm its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Merchant and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if Merchant orders any Additional Products and Services through the functionality of the Platform, it shall pay MunchEm’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Fees”). MunchEm may modify the Fees at any time on written notice to Merchant (including via Merchant’s individual account in its OrderEm dashboard), and any such modification shall go into effect thirty (30) days after such notice. The Subscription Fee shall be locked for the first year of any annual subscription view MunchEm’s refund policy with respect to the Subscription Fee, which is hereby incorporated into and made part of this Agreement. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions commencing or renewing on or after March 1, 2017, Merchant shall also pay MunchEm any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes, but excluding any taxes imposed or based on MunchEm’s income (collectively, “Taxes”).
4.2 Payments to MunchEm. MunchEm shall authorize Merchant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of the Fees and Taxes, and Merchant hereby consents to the same. If your Merchant is in the United States, all payments will be charged and made in U.S. dollars. If your Merchant is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date you can begin taking Orders or Marketplace Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, MunchEm shall charge Merchant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
4.3 Payments to Merchant; Marketplace Orders.
MunchEm may use Stripe, Inc. (“Stripe”), Clover, Square, or PayPal, Inc. to collect credit card payments in connection with Orders. a. You must enter into the Account Agreement with respective agents.
For all Merchants
MunchEm, Inc. online ordering system can accept payments from multiple payment processing companies. Merchants need to ensure that they have received the payment in their payment processing system before rendering any services/products. If they have not received payment in to their account, they should immediately bring this to MunchEm attention for any issues related to code to be addressed. If Merchant identifies any issues, they should unpublish the Merchant until MunchEm ensures the bug is fixed. If payment is missing from their payment processing account, MunchEm is not liable for any services rendered/products purchases that customer not paid for. It is responsibility of the merchant to check the payment received.
MunchEm system sometimes may accept payment if primary system fails. If this happens, Merchant can only the claim the amount received by MunchEm.
To the extent returns cannot be automatically deducted from the sums otherwise due to you hereunder, you hereby authorize MunchEm to automatically issue an ACH transaction and deduct from your designated bank account the amount of such returns on a weekly basis. For the avoidance of doubt, MunchEm assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to you under this Section 4.3(c). To the extent the terms set forth in Section 4.3(b) (iii) above conflict with the terms contained in Your MSA, the terms of Section 4.3(b) (iii) shall prevail.
c. MERCHANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT MunchEm IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT CLOVER, SQUARE, STRIPE, AND/OR PAYPAL FAILS TO REMIT TO MERCHANT IN CONNECTION WITH THE ORDERS, AND MERCHANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST CLOVER, SQUARE, STRIPE, AND/OR PAYPAL, AS APPLICABLE, PURSUANT TO THE CAA OR MSA, AS APPLICABLE. MERCHANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES MunchEm FROM ANY AND ALL CLAIMS ARISING OUT OF CLOVER’S, SQUARE’S, STRIPE’S, AND/OR PAYPAL’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
d. You hereby authorize MunchEm to process Marketplace Orders. In connection with any Marketplace Orders, MunchEm is scheduled to receive payments from the applicable third-party platforms on a weekly basis. Within two (2) business days of receiving payment from a third-party platform for Marketplace Orders, the following sum shall be deposited into the bank account You direct payment: the amounts for all such Marketplace Orders for which You have not yet been paid, less (i) any allowances actually made or taken for refunds; (ii) any third-party delivery charges; and (iii) ten percent (10%) of such Marketplace Orders. To the extent refunds cannot be automatically deducted from the sums otherwise due to you hereunder, you hereby authorize MunchEm to automatically issue an ACH transaction and deduct from your designated bank account the amount of such refunds on a weekly basis. For the avoidance of doubt, MunchEm assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to you under this Section 4.3(e).
4.4 Taxes on Orders and Marketplace Orders. In connection with all Orders and Marketplace Orders, You shall: (i) ensure that the tax rates set forth in Your MunchEm dashboard are correct; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and Marketplace Orders and the processing of such Orders and Marketplace Orders for Customers (excluding any taxes imposed or based on MunchEm’s income).
4.5 Subscription Plans. At any time during the first year of the Term, Merchant, if it originally selected a month-to-month subscription, may convert to an annual subscription plan on thirty (30) days’ notice to MunchEm. After the first year of the Term, if the Merchant originally selected an annual subscription, such subscription shall be automatically converted to a month-to-month plan for the remainder of the Term. Merchant may add new locations at any time during the Term on notice to MunchEm, including through the Platform, via e-mail, or by phone.
For every order the Merchant receives through MunchEm website/apps/services – Merchant agrees to pay *agreed commission percentage or fees charge for the order.
5. TERM, TERMINATION, AND SUSPENSION.
5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
5.2 Termination and Suspension. Either Party may terminate this Agreement: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any or no reason, upon thirty (30) days prior written notice to the other Party (without penalty or liability). MunchEm may suspend access to the Platform or remove some or all Merchant Content in MunchEm’s sole discretion, if MunchEm reasonably believes that Merchant, Merchant’s patrons, or any third part is engaged in: (i) any activity that may harm MunchEm, its systems, or any third-party systems; or (ii) fraudulent or illegal activity or any other activity that could result in legal liability to MunchEm or any third party. Any such suspension may continue until the activity causing the suspension has been cured and MunchEm has received satisfactory assurances that it will not recur.
5.3 Effect of Termination. Upon termination of this Agreement: a. Merchant shall be paid any amounts payable under Section 4.3(b), Section 4.3(c), and Section 4.3(e);
b. MunchEm shall charge Merchant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.2 and any other amounts due under this Agreement; and
c. All rights and licenses granted hereunder will immediately cease, and Merchant will immediately cease all access to and use of the Platform.
d. MunchEm shall remove the MunchEm online ordering from your website, and you shall assist us in doing so.
5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.5 (“Additional Products and Services”); Section 1.6 (“Incorporated Terms”); Section 5.3 (“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.4 (“Survival”).
6.2 Usage of Data. Although Merchant owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and MunchEm’s privacy policies.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Merchant, any franchise agreement.
7.2 Additional Representations, Warranties, and Covenants of Merchant. In addition to the representations and warranties set forth in Section 7.1, Merchant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform; (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders and Marketplace Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders and Marketplace Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders or Marketplace Orders that are scheduled to be delivered to a Customer by a third-party delivery service, Merchant shall package the Order or Marketplace Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order or Marketplace Order is available for pickup upon the third-party delivery service’s arrival; (v) if it has signed up for On-Demand Delivery, it shall not offer alcohol on its online menu through the Platform, and if it attempts to do so, MunchEm may, in its sole discretion, terminate Merchant’s participation on the On-Demand Delivery program; (vi) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order or Marketplace Order that includes alcohol, Merchant shall abide by such laws, including, without limitation, checking Customer’s ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; (vii) the Merchant Content and the Merchant Marks and MunchEm’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (viii) Merchant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with MunchEm’s use of the Merchant Content and the Merchant Marks and/or MunchEm’s exercise of any license granted hereunder, and MunchEm shall not be obligated to pay any fees in connection therewith.
a. MUNCHEM CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY MunchEm HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MunchEm MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE MERCHANT CONTENT, THE MERCHANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
b. MUNCHEM HAS MADE EVERY EFFORT TO DISPLAY THE ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH MunchEm WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE ADDITIONAL PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO AN ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO MunchEm HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS; (C) YOUR BREACH OF SECTION 1.3; (II) MUNCHEM’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO MunchEm UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF MunchEm AND ITS DELIVERY SERVICE VENDOR FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, You shall indemnify, defend, and hold harmless the MunchEm Indemnified Parties from and against any and all Losses incurred by such MunchEm Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Your breach or alleged breach of the Incorporated Terms and/or Section 4.4; (ii) an Adverse Event; or (iii) the processing of Orders and/or Marketplace Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers.
During the Term, MunchEm shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that you are a client of MunchEm and a user of the Platform. In addition, upon the reasonable request of MunchEm, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, you, if requested by MunchEm, shall make one (1) or more representatives available for a strategic press interview.
11. MISCELLANEOUS PROVISIONS.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement is entered into in the State of Florida and shall be governed by and construed in accordance with the domestic laws of the State of Florida, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Orlando, FL pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, MunchEm may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and the Additional Terms is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that MunchEm may modify this Agreement and/or the Additional Terms at any time by posting such modification on Your individual account in Your admin.MunchEm.com dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is Merchant’s responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.