General
. VDC provides a SaaS-based platform for purposes of providing
data and reporting solutions, kitchen management solutions,
subscription services, and service modules, including all
related documentation, software, and intellectual property
related thereto (collectively, the “VDC Platform”), for access, use, and license by Customer as more
fully described in this Agreement.
License Grant to Customer
. Subject to the terms and conditions of this Agreement,
VDC will use commercially reasonable efforts to make the
VDC Platform available to Customer pursuant to this Agreement,
and grants Customer a non-exclusive, non-transferable, non-sublicensable,
limited right to access and use the Services and Platform
in accordance with the usage terms set forth in this Agreement
and any applicable Order Form.
VDC may, from time to time, modify or improve the VDC Platform
or add new features or functionality to the VDC Platform,
or suspend Services and access to the VDC Platform if reasonably
necessary for an emergency situation or to stop potential
harm, loss or damage.
Customer Accounts
. As part of the registration process for the VDC Platform,
each Customer will be required to identify an administrative
username and password for Customer’s account. VDC reserves
the right to refuse registration of, revoke, suspend or cancel
Customer accounts without advance notice for any lawful reason.
VDC Access. Customer shall provide VDC access to
Customer’s accounts (including account login information
and separate user profiles, as needed) with certain
third party delivery service providers, point of sale
vendors, online ordering platforms, aggregators, and
other third party vendors or service providers
(collectively, the “Third Party Providers”) required for
VDC to perform the Services and Customer to use the VDC
Platform. If VDC is providing Customer with “Revenue
Recapture Services” as identified on the applicable
Order Form, Customer shall also appoint VDC as its agent
for the limited purpose of performing the Revenue
Recapture Services, including initiating and
facilitating certain dispute services for cancelled or
refunded orders on behalf of Customer or a Customer
brand with the applicable third-party delivery service
provider (e.g., Grubhub, Doordash, or Uber Eats) in
Customer’s name.
VDC cannot guarantee that the VDC Platform will support the
integration with any Third Party Provider or with any particular
third party providers in the future, and VDC may remove or
alter an integration with a Third Party Provider at any time,
with or without notice to Customer. VDC shall not be liable
to Customer for any costs, expenses, or losses arising from
the inability to integrate with any Third Party Provider,
or the removal of a previously-integrated Third Party Provider,
in connection with the VDC Platform, performance of the Services,
or otherwise.
Customer Restrictions and Responsibilities.
Customer will not, directly or indirectly, 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
VDC Platform or Services or any software, documentation
or data related thereto; modify, translate, or create
derivative works based on the VDC Platform or Services;
use the VDC Platform or Services for the benefit of a
third party; remove any proprietary notices or labels or
engage in any misleading or deceptive comparisons
involving the VDC Platform or other products or
services; or otherwise use the VDC Platform (i) to
engage in any illegal activity, (ii) to infringe or
violate any third party rights, or (iii) outside the
scope expressly permitted hereunder and in the
applicable Order Form.
Customer will (a) be responsible for all use of the VDC Platform
under its account, (b) use commercially reasonable efforts
to prevent unauthorized access to or use of the VDC Platform
and promptly notify VDC of any such unauthorized access or
use, and (c) be responsible for obtaining and maintaining
any equipment, software and ancillary services needed to
connect to, access or otherwise use the VDC Platform. Customer
will be solely responsible for its failure to maintain such
equipment, software and services, and VDC will have no liability
for such failure.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Confidentiality. Each party agrees: (a) to take
reasonable precautions to protect such Confidential
Information, and (b) not to use (except in performance
of the Services or as otherwise permitted herein) or
divulge to any third person any such Confidential
Information. As used herein, “Confidential Information”
shall mean any information or data disclosed by either party
that is marked or otherwise designated as confidential or
proprietary or that should otherwise be reasonably understood
to be confidential in light of the nature of the information
and the circumstances surrounding disclosure. However, Confidential
Information will not include any information which (a) is
in the public domain through no fault of the receiving party;
(b) was properly known to the receiving party, without restriction,
prior to disclosure by the disclosing party; (c) was properly
disclosed to the receiving party, without restriction, by
another person with the legal authority to do so; or (d)
is independently developed by the receiving party without
the use of or reference to the disclosing party’s Confidential
Information.
Customer's Ownership Rights. Customer shall own
all right, title and interest in and to the non-public
data concerning Customer, Customer’s end users, and
Customer’s Third Party Providers generated during
Customer’s use of the VDC Platform or inputted by
Customer into the VDC Platform (collectively, the
“Customer Data”), as well as any data that is
based on or derived from the Customer Data, except as
set forth herein. Customer shall be responsible for
obtaining any necessary consents or permissions for any
collection or use of the Customer Data by VDC under this
Agreement. Customer hereby irrevocably grants all such
rights and permissions in or relating to the Customer
Data to VDC, its subcontractors and personnel as are
necessary or useful to perform VDC’s obligations under
this Agreement, or any other agreement between Customer
and VDC, and as are necessary or useful to enforce this
Agreement and exercise VDC’s rights hereunder.
VDC's Ownership Rights.
As between the parties, VDC exclusively owns all right, title
and interest in and to the VDC Platform. Except for the express
rights granted hereunder, VDC reserves all rights, title
and interests in and to (a) the VDC Platform and VDC’s Confidential
Information, all improvements, enhancements or modifications
thereto, (b) any software, applications, inventions or other
technology developed in connection with the Services, and
(c) all intellectual property rights related to any of the
foregoing.
Feedback. Customer may from time to time provide
VDC suggestions or comments for enhancements or
improvements, new features or functionality, or other
feedback (collectively, “Feedback”) with respect
to the VDC Platform. VDC will have full discretion to
freely use and exploit such Feedback in connection with
its products and services without any obligation to
compensate or reimburse Customer.
Aggregate Data. Notwithstanding anything to the
contrary, VDC shall have the right to collect and
analyze data and other information relating to the VDC
Platform and related systems and technologies; or the
provision, use and performance of various aspects of the
Services (including, without limitation, information
concerning Customer Data and data derived therefrom),
and VDC will be free (during and after the term hereof)
to (a) use such information and data to improve,
enhance, diagnose, develop, and enhance the VDC Platform
and other services, and (b) disclose such data solely in
aggregate or other de-identified form in connection with
VDC’s business. No rights or licenses are granted except
as expressly set forth herein.
FEES AND PAYMENT
Customer hereby agrees to pay VDC the Fees in accordance with this
Agreement and any Order Form, as applicable. Subject to the termination
rights below, VDC may modify the Fees at any time with at least thirty
(30) days’ advance notice of any increase. Unpaid amounts are subject
to a finance charge of one and one-half percent (1.5%) per month
on any outstanding balance, or the maximum permitted by law, whichever
is lower, plus all expenses of collection and related attorneys’
fees, and may result in suspension or termination of the Agreement.
Customer shall be responsible for all taxes associated with the Services
and use of the VDC Platform, other than U.S. taxes based on VDC’s
net income.
Term
Unless otherwise stated in an applicable Order Form, the term of
this Agreement shall be for one (1) year commencing on the Effective
Date, and shall automatically renew for additional one (1) year periods
thereafter (collectively, the “Term”) unless either party terminates
this agreement in accordance with the termination provision below.
TERMINATION
Termination for Cause. In addition to any other
remedies it may have, either party may terminate this
Agreement upon thirty (30) days’ prior written notice
(or ten (10) days’ prior written notice in the case of
nonpayment), if the other party materially breaches any
of the terms or conditions of this Agreement, and fails
to cure such breach within such notice period. Customer
shall pay in full for the Services up to and including
the last day on which the Services are provided.
Termination for Convenience. Either party may
terminate this Agreement at any time upon providing
ninety (90) days’ prior written notice to the other
party.
Suspension or Termination of Customer Services.
VDC may suspend, revoke or terminate the Services or
Customer’s access to the VDC Platform in whole or in
part, without terminating this Agreement, in VDC’s sole
discretion, in the event Customer fails to pay the fees
due or otherwise breaches the terms of this Agreement.
Effect of Termination. Upon expiration or earlier
termination of this Agreement or any Order Form,
Customer shall promptly cease all use of the Services
and the VDC Platform, programs and materials and any
Confidential Information belonging to VDC, remove such
from all computers, networks or other devices, and
return to VDC, or certify the destruction of any of the
following held in connection with the performance of
this Agreement. Upon any termination, VDC will make all
Customer Data available to Customer for electronic
retrieval for a period of thirty (30) days, but
thereafter VDC may, but is not obligated to, delete
stored Customer Data. 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.
REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties. Customer
and VDC represent and warrant to each other that: (i) it
is an entity duly incorporated, validly existing, and in
good standing under the laws of its state of
incorporation; (ii) it has all requisite corporate
power, financial capacity, and authority to execute,
deliver, and perform its obligations under this
Agreement; (iii) it shall comply with all laws
applicable to the provision or use the VDC Platform, as
applicable; and (iv) this Agreement, when executed and
delivered, shall be a valid and binding obligation of it
enforceable in accordance with its terms.
Additional Representations and Warranties By VDC.
VDC represents and warrants that VDC shall: (i) use
reasonable efforts consistent with prevailing industry
standards to maintain the VDC Platform in a manner which
minimizes errors and interruptions in the VDC Platform;
and (ii) perform the Services in a professional and
workmanlike manner. However, the VDC Platform may be
unavailable or interrupted from time to time for any of
several reasons, including, but not limited to, the
malfunction of equipment, periodic updating, scheduled
or unscheduled emergency maintenance either by VDC or by
a Third Party Provider, or because of other causes
beyond VDC’s reasonable control.
Additional Representation and Warranties By
Customer. Customer represents and warrants that Customer: (a)
has and will obtain all permissions and consents that
are necessary in order to use the VDC Platform and allow
VDC to perform the Services in accordance with this
Agreement and any applicable Order Form; (b) has the
right to use, and allow VDC to use, Customer Data and
Customer’s authorized Third Party Provider accounts; and
(c) if applicable (e.g. required by a Third Party
Provider), Customer has provided requisite notices,
obtained consents and satisfied any other requirements
under applicable law and any Third Party Provider
agreement, that are necessary for Customer and VDC to
access and use the Customer Data as set forth herein.
DISCLAIMER OF WARRANTY
VDC DOES NOT WARRANT THAT THE VDC PLATFORM OR 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 VDC PLATFORM OR SERVICES. THE VDC
PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND, TO THE EXTENT ALLOWABLE
AT LAW, VDC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
INDEMNITY
Unless prohibited by applicable law, Customer will indemnify, defend
and hold harmless VDC and its affiliates (including their respective
officers, directors, employees and agents) against any liabilities,
damages, and costs (including reasonable attorneys’ fees) from any
claim or legal proceeding arising out of or relating to: (a) Customer’s
breach of the Agreement or any agreement with a Third Party Provider;
(b) Customer’s use or misuse of the VDC Platform (c) Customer Data
or content provided to VDC; or (d) Customer’s gross negligence or
willful misconduct.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, VDC AND ITS AFFILIATES
(INCLUDING THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS)
SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER UNDER ANY LEGAL THEORY,
WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR: (A) ANY INDIRECT, EXEMPLARY,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR
LOSS OF GOOD WILL, LOST PROFITS, LOST SALES, INTERRUPTION OF USE,
LOSS OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, SERVICES, OR TECHNOLOGY; (B) ANY MATTER BEYOND VDC‘S REASONABLE
CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED
WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VDC FOR
THE SERVICES AND USE OF THE VDC PLATFORM UNDER THIS AGREEMENT IN
THE 12 MONTHS PRIOR TO THE CLAIM.
MISCELLANEOUS
Unenforceability. 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.
Assignment. This Agreement is not assignable,
transferable or sublicensable by either party without
the other party’s prior written consent, except to a
parent company or to any direct or indirect wholly owned
subsidiary of a parent company, however, no such
assignment shall relieve the assigning party of any of
its obligations under this Agreement.
Entire Agreement. 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 any waivers or modifications of this
Agreement must be in a writing signed by both parties.
Relationship. 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 bind VDC in any respect whatsoever.
Notices. All notices under this Agreement will be
in writing, sent to the Notice Address on the applicable
Order Form 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 business 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.
Governing Law; Venue. This Agreement shall be
governed by the laws of the State of Florida without
regard to its conflict of laws provisions. Any and all
disputes arising from or in connection with this
Agreement shall be prosecuted in a court of competent
jurisdiction in Orange County, Florida.
Interpretation. In the event of an ambiguity or
question of intent or interpretation arises, this
Agreement shall be construed as if jointly drafted by
the parties and no presumption, inference, or burden of
proof shall arise favoring or disfavoring a party by
virtue of authorship of any or all of the Agreement
provisions. Unless the context of this Agreement clearly
requires otherwise: (a) the singular shall include the
plural and the plural shall include the singular, (b)
the words “includes” or “including” shall mean
“including without limitation,” (c) the word “or” is not
exclusive and (d) the words “hereof,” “herein,”
“hereunder” and similar terms shall refer to this
Agreement as a whole and not any particular section or
article in which such words appear
Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one
and the same Agreement. The parties shall treat faxed,
.pdf, emailed or other electronically signed documents
(including documents signed through e-sign service
providers such as DocuSign) as originals. This Agreement
may be executed in one or more counterparts, each of
which shall be deemed an original, and will become
effective and binding upon the parties as of the
Effective Date at such time as all signatories hereto
have signed and delivered to the other party a
counterpart of this Agreement.
Confidentiality. Neither party shall disclose (or
authorize any third party to disclose) the financial or
other material terms of this Agreement or any
proprietary information of the other party, with the
exception only of disclosure by either party to their
respective agents, attorneys, accountants, consultants,
representatives or employees on a need to know basis (in
which event the respective party shall be liable for any
breach of this section by such agent, attorney,
accountant, consultant, representative or employee) or
except as (a) may be required by law, rules of
government agencies or court proceedings; (b) to perform
or enforce the terms of this Agreement; (c) if such
term(s) are publicly known prior to any confidentiality
obligation herein; and/or (d) if such term(s) become
publicly known other than by a disclosure from a source
who was subject to a confidentiality obligation under
this Agreement.
Force Majeure. Whenever a period of time is
provided in this Agreement for either party to do or
perform any act or thing, except the payment of monies,
neither party shall be liable or responsible for any
delays due to strikes, lockouts, casualties, acts of
nature, war, terrorist acts, governmental regulation or
control, pandemic, or other causes beyond the reasonable
control of the parties, and in any event said time
period for the performance of an obligation hereunder
shall be extended for the amount of time of the delay.
This clause shall not apply to, and shall not result in
an extension of, the Term.
Reimbursement. If either party brings an action
to enforce this Agreement, the party prevailing in the
proceeding shall be entitled to reimbursement of
reasonable costs, expenses, and attorneys’ fees, whether
incurred during, prior to, in preparation for, or in
contemplation of the filing of, the proceeding. In any
judicial proceeding, the amount of these costs and
expenses shall be determined by the court and not by a
jury.
Records and Audit Rights. Each party shall
preserve all books, records, accounting records, and
documents related to this Agreement, the Services and
the Orders (collectively, the “Records”) for at least three (3) years, including after the
termination of this Agreement. During such period of
time, either party shall make the Records available
during normal business hours upon at least five (5)
business days of request and permit the other party
and/or the other party’s authorized representatives to
inspect, review, copy, and/or audit the Records for any
reasonable reason.