TERMS AND CONDITIONS
AGREEMENT TO TERMS
Last updated: February 6, 2024
AGREEMENT TO TERMS
1.1 This Terms and Conditions and a corresponding Order Form (“Agreement”) is entered into on [date] (the “Effective Date”) between KitchenHub Inc. (“Company”), and the Customer as listed on the Order Form (“Customer”).
1.2 Company reserves the right, in its sole discretion, to make changes or modifications to Terms and Conditions at any time and for any reason. Company will notify Customer by email provided on the order form about such changes. It is Customer’s responsibility to periodically review the Terms and Conditions to stay informed of updates. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1.3 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.4 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice. Company’sService Level Agreement (“SLA”) is available at https://www.trykitchenhub.com/company/sla. Company reserves the right, in its sole discretion, to make changes or modifications to these SLA at any time and for any reason. Customer waives any right to receive specific notice of each such change of SLA. It is Customer’s responsibility to periodically review the SLA to stay informed of updates.
2.1 Customer will not, directly or indirectly copy, manufacture, translate, modify, adapt, enhance, extend, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use theServices or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; disclose the results of any benchmark test; or remove any proprietary notices or labels (except to the extent expressly permitted by Company or authorized within the Services).
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of TreasuryOffice of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5)are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this agreement.
2.3 Customerhereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from Customer’s use of Services. Although Company has no obligation to monitor the Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Company may provide Customer with equipment needed to connect to, access, or othewise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like(collectively, “Equipment”). Customer will pay Company the applicable EquipmentFee as described in the Order Form, subject to the terms of Section 4 herein. Customer shall be responsible for maintaining any Equipment.
2.5 Customer is solely responsible for returning the equipment for the Company at the Customer’s cost and expense upon the termination of Services for any reason.
2.6 Customer shall be responsible for obtaining and maintaining any other equipment needed to connect to, access, or otherwise use the Services. Customer shall also be responsible for maintaining the security of the Equipment, Customer’s own equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:(i) to take reasonable precautions to protect such ProprietaryInformation, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any suchProprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document(a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or(c) was rightfully disclosed to it without restriction by a third party, or(d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all rights, title, and interest in and to the Customer Data. Company shall own and retain all rights, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. Nothing in this Agreement shall be deemed or construed as intellectual property right abandonment by the Company.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1 Customer will pay Company the fees described in the Order Form for the Services, Equipment Fee, Implementation Services, and Pilot Use, as applicable, in accordance with the terms therein(the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.
4.2 Customer cannot unilaterally change Fees or the method of the Fees calculation;
4.3 Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.4 If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.5 Customer shall pay the Fees on the initial payment day, which is the date when the first provider (by way of example only: UberEats, GrubHub) was connected to any restaurant/end-user of Customer, using the payment link provided by Company. Payments will be automatically deducted from Customer on the same day of each subsequent month (together with the initial payment day – “Payment Day”). Amounts unpaid formore than fifteen (15) calendar days from the applicable Payment Day are subject to a finance charge of fifteen per cent (15%) on any outstanding balance (“Late Fee”), or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In case if the payment is not made within 30 calendar days from the applicable Payment Day, the Services will be terminated.
4.6 Without prejudice to any other rights and remedies available to Company under any applicable law, Company may, at its sole discretion without liability to Customer, disable, suspend, or terminateCustomer’s access to all or part of the Services, and Company shall be under no obligation to provide any or all of the Services while the Fees remain unpaid.
4.7 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on the Company’s net income.
5.1 Customer agrees to pay Company a non-refundable retainer, due and payable upon entering into of this Agreement (“Retainer”). Company shall have no obligation to provide services to Customer until the non-refundable retainer is paid in full.
5.2 Retainershall be credited against the Fees described in Section 4. Customer acknowledges that Retainer is non-refundable in all circumstances, including but not limited to if Customer no longer wants or is no longer able to receive the Services. The non-refundable retainer shall be deemed as earned in full by Company upon payment.
5.3 Company may require that Customer provides an additional non-refundable retainer prior to or upon a reactivation of the Service, upgrade of the Service; or use of any Implementation Service. The company may also require an additional retainer if Customer fails to pay any amounts due under this Agreement.
6.1 Subject to earlier termination as provided below, this Agreement is for the initial service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term(collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and the violation is either un-curable or the party in violation fails to cure the violation within thirty (30) days of the other party’s written notice describing the violation in reasonable detail.
6.3 Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.4 Company’s authorization to use Services and/or Software is automatically terminated on termination of this Agreement and Customer must immediately stop using Services and/or Software.
6.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPTAS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv)combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or(vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
9.1 NOT WITH STANDING ANYTHING TO THE CONTRARY, IN THE AGREEMENT: (A) IN NO EVENT SHALL THE COMPANY,ITS OFFICERS, AFFILIATES, REPRESENTATIVES BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES,LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL AGGREGATE LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING OUT OF ORIN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/ORTHE SERVICES, EXCEED THE MONTLY FEE PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE MONTH PRIOR TO THE ACT THAT GAVE RISE TOTHE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Customer assumes the sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Company by the Customer in connection with the Services (including without limitation, Customer Data), or any actions taken by the Company at the Customer's direction.
9.3 This section shall survive any termination or expiration of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any assignment, transfer, or sublicense of this Agreement is void if done by the Customer without the Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bindCompany in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of law provisions. The courts of New York shall have the jurisdiction to hear all claims under this Agreement. This Agreement has been prepared in the English language and the English language shall control its interpretation. In addition, all notices required or permitted to be given hereunder, and all written, electronic, or other communications between the parties regarding this agreement shall be in the English language. There are no third-party beneficiaries to this Agreement; neither party’s customers, suppliers or other persons shall have the right to enforce this Agreement. Company is under no obligation to provide any marketing materials about the Services to Customers.
Kitchenhub Inc.
251 Little Falls Drive
Wilmington, DE 19808
United States
support@kitchenhub.app
