ORDERMARK INC.

RESTAURANT SERVICES AGREEMENT (RSA)

Effective as of May 1, 2019

This Restaurant Services Agreement (“RSA”) are the terms, conditions and legal agreement by and between Ordermark, Inc., a Delaware Corporation (“Ordermark”), and you, the restaurant owner/operator or entity you represent as specified on the Ordermark Sign Up Form (“Restaurant”, “You” or “Your”).  Ordermark and Restaurant may be referred to individually as a “Party” or collectively the “Parties” under this RSA.  This RSA is entered into as of the Effective Date (“Effective Date”) and governs the relationship between the Parties.

In order to utilize any Ordermark product or service, You must agree to all of the following terms and conditions of service:

1. Definitions.

1.1. “Restaurant Data” means data provided by Restaurant and data generated in connection with Restaurant’s implementation and use of the Ordermark Platform and shall include without limitation data necessary for Ordermark to create, log into, and transact via Restaurant accounts on Online Ordering Services in connection with this RSA. 

1.2. “Customer Data” means data received by the Restaurant from an online order through any means of communication including but not limited to an email, fax, or by direct integration.

1.3. “Effective Date” means the day in which You consent to the terms of this Agreement via digital signature.

1.4. “Documentation” means any documentation provided by Ordermark under this RSA.

1.5. “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any software therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, software, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.

1.6. “Online Ordering Service” means a third-party online or mobile service for ordering restaurant food for delivery or pickup.

1.7. “Ordermark Service” means the onboarding and/or maintenance of third-party online ordering capabilities using Ordermark personnel, software and hardware.  Ordermark reserves the right to change the availability of any feature, function, or content relating to the Ordermark Service, at any time, without notice or liability.

1.8. “Ordermark Hardware” means the thermal printer and other items including but not limited to a tablet, computer, and computer cables provided to Restaurant by Ordermark under this RSA.

1.9. “Ordermark Dashboard” means the Ordermark online web access as made available to Restaurant in the performance of the Ordermark Service.

1.10. “Ordermark Platform” means any one or all of the Ordermark Service, Ordermark Hardware and Ordermark Dashboard.

1.11. “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are property of Restaurant.

1.12. “Ordermark Marks” means all trademarks, service marks, logos, and other distinctive brand features that are property of Ordermark.

1.13.  “RDS” means a third-party Restaurant Delivery Service used for pickup and delivery of food for restaurants.

2. Responsibilities of Ordermark.

2.1. Ordermark will provide the Ordermark Service to Restaurant per the terms and conditions of this RSA.  Service may include setup and updating key information, such as, changes in opening times and other information as reasonably required and mutually agreed upon in a timely manner, typically within five (5) business days after receiving such information, subject to the individual turnaround time of the particular Online Ordering Service for which the service has been requested.

2.2. Ordermark will assist the Restaurant with adding new Online Ordering Service companies, or RDS companies, if desired by Restaurant and supported by Ordermark, provided that Ordermark shall have no right to execute, enter into or amend any agreement or other contract that would obligate Restaurant without Restaurant’s prior written approval.  Parties hereby confirm and agree that the such approvals sent by email, facsimile, PDF or any similar electronic document transmissions shall be considered legal and binding.

2.3. Ordermark will provide the Ordermark Platform as required in accordance with the fees and configuration specified in the Ordermark Sign Up Form. 

2.4. Ordermark will at all times, host and maintain its own software in providing the Ordermark Service and Dashboard.

2.5. Ordermark shall provide reasonable support for the Ordermark Service and Dashboard.

2.6. Ordermark shall at all times maintain commercially reasonable security policies and procedures designed to ensure the safe keeping of Restaurant Data and Customer Data.

2.7.  In the unusual event of a Ordermark Hardware failure, Ordermark will repair and/or replace failed Ordermark Hardware as soon as possible, typically shipped within two (2) business days of the failure being reported to Ordermark.  If damages to the Ordermark Hardware are caused by Restaurant’s misuse or physical damage to the Ordermark Hardware, Restaurant agrees to reimburse Ordermark for the full cost of repairing or replacing the damaged Ordermark Hardware plus shipping costs.

3. Responsibilities of Restaurant.

3.1. Restaurant shall provide Ordermark the required Restaurant Data and complete all necessary Online Ordering Service(s) forms and documentation to setup and maintain each Online Ordering Service account as required.  The Restaurant grants Ordermark the right to complete the necessary forms to setup and maintain each Online Ordering Service account.

3.2. Restaurant will cooperate in setting up email accounts and complete any other sign-up forms or documentation as necessary for receiving orders. 

3.3. Restaurant will review and agree to the terms and conditions of this Ordermark RSA.

3.4. Restaurant will review and comply with the terms, conditions, policies, and other rules of each Online Ordering Service for which Ordermark will be providing You the Ordermark Service.

3.5. Restaurant will be responsible for obtaining and maintaining at Restaurant’s expense all the necessary computer hardware, software, modems, connections to the Internet, and all other items required to access or use the Ordermark Platform.

3.6. Restaurant will install the Ordermark Hardware as provided within three (3) business days after receipt.

3.7  Restaurant may not: (i) sell, resell, or lease, any portion of the Ordermark Platform to a third-party; or (ii) attempt to reverse engineer, decompile, copy, reproduce, or replicate the any component of the Ordermark Platform; or (iii) tamper with, harm, or modify any part of the Ordermark Platform, or use the Ordermark Hardware in a manner not consistent with Ordermark’s services; or (iv) use the Ordermark Platform for any illegal activities or fail to comply with any applicable laws; or (v) permit unauthorized use of the Ordermark Platform to any third-party.

4. Right to Monitor.

Ordermark will have the right to review and monitor all use of the Ordermark Platform to ensure compliance with the terms of this RSA.   Furthermore, you agree to allow Ordermark to provide Which Wich corporate headquarters personnel to access data within the Ordermark Platform, including but not limited to summary and detail sales data reports for your location.

5. License Grants to Ordermark.

Subject to the terms and conditions of this RSA, including without limitation, the confidentiality obligations set forth therein, Restaurant hereby grants Ordermark the following:

5.1. Worldwide, non-exclusive, revocable, royalty-free license to use now and in the future, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of Restaurant Data.

5.2 Worldwide, non-exclusive, royalty-free license to use now and in the future, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of Customer Data.

5.3 The limited revocable right of Ordermark to use Restaurant Data to create, login to, and transact via Restaurant accounts on Online Ordering Services in connection with this RSA.  These rights terminate upon termination of this RSA.  Restaurant Data shall remain the exclusive property of Restaurant and does not transfer in any way to Ordermark.

6. Fee Schedule.

Restaurant will pay to Ordermark the fees set forth on the Ordermark Sign Up Form.  Payment obligations and fees paid are non-refundable.

7. Payment Terms.

7.1. Ordermark’s fees will be due in accordance with the fees and terms specified herein and the Ordermark Sign Up Form.  Fees for all Ordermark services will begin to accrue upon Your first order processed through the Ordermark Platform, or three (3) days after receipt by Restaurant of the Ordermark Hardware, whichever occurs first.

7.2. Ordermark shall authorize and charge Restaurant’s credit card, bank account, or other approved method provided to Ordermark for the full payment of all Ordermark fees, and Restaurant hereby consents to the same.  If any form of payment by Restaurant (including credit card and bank charges) is declined, Ordermark may immediately disable the Ordermark Platform or terminate this RSA in its sole discretion.

7.3. The default payment term, unless otherwise specified, is all amounts due within fifteen (15) days of the end of each month, including any partial month fees due to the addition or removal of any Ordermark services.  If any past due fees have not been received by Ordermark within thirty (30) days from the time such payment is due, Ordermark may suspend or terminate the Ordermark Service at its sole discretion.

8. Net of Taxes.

All amounts payable to Ordermark hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”).  Restaurant shall, in addition to the other amounts payable under this RSA, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this RSA, excluding only taxes based on Ordermark’s net income.

9. Ownership; Reservation of Rights.

Restaurant acknowledges and agrees that, as between the Parties, Ordermark retains all right, title and interest in and to the Ordermark Platform, including any copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, by whoever produced and all Intellectual Property Rights therein and thereto.  Ordermark grants no, and Ordermark reserves, any and all rights other than the rights expressly granted to Restaurant under this RSA.  Restaurant shall acquire no right, title, or interest in and to the Ordermark Platform other than the limited rights expressly granted under this RSA.  Restaurant will not remove, obscure, or alter any intellectual property rights notices relating to the Ordermark Platform.  Restaurant acknowledges and agrees that, as between the Parties, Ordermark retains all right, title and interest in and to the data associated with the Ordermark's Platform.  Ordermark acknowledges and agrees that, as between the Parties, Restaurant retains all right, title and interest in and to the Restaurant Marks and Restaurant Data, including any copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto to Restaurant Marks and Restaurant Data, by whoever produced and all Restaurant Marks and Restaurant Data Intellectual Property Rights therein and thereto.  Restaurant grants no, and Restaurant reserves, any and all rights other than the rights expressly granted to Ordermark under this RSA.

10. Restaurant Suggestions.

Ordermark shall have full discretion to determine whether or not to proceed with the development of any suggested enhancements, new features or functionality (collectively “Feedback”).  Restaurant hereby grants to Ordermark a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (i) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (ii) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. 

11. Term and Termination.

11.1. Term.  This RSA shall commence on the Effective Date and continue in full force and effect until terminated pursuant to the provisions of this Section.  This RSA may be terminated by either Party with or without cause upon delivery of written notice of termination to the other Party, at least thirty (30) days before the intended termination date; or if the other Party fails to perform or observe any material term or condition in this RSA and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.

11.2. Effect of Termination.  Upon termination of this RSA:

(a) Restaurant shall promptly return, or at Ordermark’s request destroy, all Confidential Information of Ordermark; and

(b) Sections 1, 5 and 7-18, shall survive termination of this RSA.  All other rights and obligations of the Parties under this RSA shall expire upon termination of this RSA, except that all Restaurant payment obligations accrued hereunder prior to termination or expiration shall survive such termination; and

(c) All rights in the Ordermark Platform under this RSA shall immediately terminate without further notice, and Restaurant will immediately cease all access and use of the Ordermark Platform; and

(d) Restaurant shall return to Ordermark, at Restaurant’s expense, all Ordermark Hardware in good operating condition within five (5) business days.  Failure to return Ordermark Hardware in good operating condition within the specified time period will result in a charge to You of $500.00 per printer and $250.00 per tablet.  Ordermark shall charge Restaurant’s credit card, bank account, or other approved method for any outstanding fees pursuant to this RSA.

12. Confidentiality.

Parties acknowledge that the existence of this RSA, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, technical and financial information that Restaurant has received or will receive in connection with this RSA, is considered private and confidential (the “Confidential Information”).  Restaurant will use reasonable diligence and in no event less than reasonable care to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity.  Restaurant may only use the Confidential Information for the purpose of performing Restaurant obligations and exercising Restaurant rights hereunder and is prohibited from disclosing or otherwise making the Confidential Information available to other persons in violation of this RSA, unless Restaurant is required to disclose such information by law or in response to a court order or issued subpoena.

13. Third-Party Performance.

RESTAURANT ACKNOWLEDGES AND AGREES THAT ORDERMARK IS NOT RESPONSIBLE FOR ANY FAILURE OF ANY OF: RESTAURANT’S SOFTWARE OR HARDWARE SYSTEMS INCLUDING POINT OF SALE SYSTEMS; ONLINE ORDERING SERVICES; INTEGRATED MOBILE ORDERING PLATFORMS’ SOFTWARE OR HARDWARE OR PRODUCTS; OR ANY OTHER THIRD-PARTY SYSTEM OR SERVICE; (collectively “THIRD-PARTY MATERIALS”).

14. No Warranty.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS RSA, ORDERMARK MAKES NO EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE ORDERMARK PLATFORM, THIRD-PARTY MATERIALS, AND ANY OTHER ACCOMPANYING MATERIALS PROVIDED HEREUNDER. THE ORDERMARK SOLUTION AND PLATFORM IS PROVIDED ON AN “AS-IS” BASIS, AND ORDERMARK DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS RSA, ORDERMARK MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. ORDERMARK EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ORDERMARK PROVIDES NO WARRANTY THAT THE PRODUCTS OR SERVICES PROVIDED BY ORDERMARK ARE ERROR-FREE OR THAT OPERATION OF SUCH PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.  ORDERMARK CANNOT GUARANTEE THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED.

15. Limitation of Liability.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS RSA, IN NO EVENT WILL ORDERMARK BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY RESTAURANT, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE THE ORDERMARK PLATFORM, OR ANY ORDERMARK SERVICE AND/OR HARDWARE, THIRD-PARTY MATERIALS, OR OTHER APPLICABLE MATERIALS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION LIABILITY ARISING OUT OF INCORRECT DATA, DATA LOSS, OR ANY DATA BREACH, REGARDLESS OF WHETHER RESTAURANT HAS ADVISED ORDERMARK OF THE POSSIBILITY OF SUCH DAMAGES. ORDERMARK'S AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO ONE THOUSAND UNITED STATES DOLLARS ($1,000.00 USD).  THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT. 

16. Indemnification.

Each Party (the “Indemnifying Party”) shall defend the other Party  (the “Indemnified Party”) against any claim, demand, suit or proceeding made or brought against the Indemnified Party by a third-party arising out of the Indemnifying Party’s material breach of this RSA, the Indemnifying Party’s negligence or willful misconduct in connection with its performance under this RSA, or the Indemnifying Party’s violation of applicable law (a “Claim”) and shall indemnify the Indemnified Party for any damages, attorney fees and costs finally awarded as a result of, and for any amounts paid by the Indemnified Party under a court-approved settlement of, a Claim; provided that the Indemnified Party (i) promptly gives the Indemnifying Party written notice of such Claim, (ii) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party may not settle any Claim unless the settlement unconditionally releases the Indemnified Party of all liability), and (iii) provides to the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense.  

 

17. Binding Arbitration.

Any dispute, claim or controversy arising out of or relating to this RSA or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration in Los Angeles, California before a single arbitrator.  The language to be used in the arbitral proceedings shall be English.  The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.  Judgment on the arbitrator's award may be entered in any court having jurisdiction.  The parties agree to keep all disputes arising under this RSA confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision.  The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this RSA.  This Section shall not preclude Ordermark or Restaurant from seeking equitable relief to protect their interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction.  The prevailing party in any action arising from or relating to this RSA shall be entitled to recover its reasonable attorneys' fees and costs including, without limitation, arbitration fees and fees of experts.

18. General Term and Conditions.

18.1.  Severability.  The terms and conditions of this RSA are severable.  If any provision of this RSA is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this RSA will otherwise remain in full force and effect and enforceable. 

18.2.  Assignment.  Restaurant may not assign any rights and duties under this RSA to any party at any time without Ordermark's written permission, which shall not be unreasonably denied provided Your account is in good standing.   Any purported assignment in violation of this Section shall be void.  Ordermark has the right to transfer and assign its rights and obligations hereunder to any third-party upon written notice to Restaurant. 

18.3.  No Agency and No Third-Party Beneficiaries.  No agency, partnership, joint venture, or employment is created as a result of this RSA and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.  There are no third-party beneficiaries to the RSA.

18.4.  Force Majeure.  Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this RSA due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.

18.5.  Notices.  All notices under this RSA 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 email; 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. 

18.6.  Governing Law.  This RSA shall be governed by the laws of the State of California without regard to its conflict of law provisions.  Any motion to enforce this RSA shall be filed in Los Angeles, California.

18.7.  No Waiver.  Failure of either Party to enforce any provision of this RSA will not be deemed a waiver of future enforcement of that or any other provision. 

18.8.  Entire Agreement.  This 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 RSA, and that all waivers and modifications must be in a writing signed by both Parties, or in a writing acknowledged and accepted by both Parties (ex: an email or a click-through modification); provided, however, that Ordermark may modify this RSA at any time by posting such modification to Your Ordermark Dashboard account page, by email, or verbally by phone, and any such modification shall go into effect thirty (30) days after it is posted.  It is Restaurant’s responsibility to check for such modifications on a regular basis.