Platform Subscription Agreement
This Platform Subscription Agreement (this “Agreement”) governs your and your Authorized Users’ (as defined below) use of the Platform (as defined below), which is made available to you (“Subscriber,” “you,” or “your”) by BentoBox CMS, Inc. (“BentoBox,” “we,” “our,” or “us”) via the Website (as defined below). If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity. We and you are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING THE “ACCEPT” BUTTON AND COMPLETING THE REGISTRATION PROCESS, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE PLATFORM.
For good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1. PROVISION OF PLATFORM ACCESS.
Subject to the terms and conditions of this Agreement, BentoBox hereby grants to you during the Term (as defined below), a non-exclusive, non-transferable, and non-assignable right to: (i) permit your Authorized Users to access and use the Platform through the website http://getbento.com/ (the “Website”) for your internal business purposes only; and (ii) permit your Restaurant Guests (as defined below) to access and use your Restaurant Website(s) through the Platform solely as necessary to order your products and services, including but not limited to, merchandise orders, corporate event orders and gift card orders (collectively, the “Orders”) and to view the menu and other information about the restaurant. We shall be responsible for hosting the Website, and you shall be responsible for obtaining Internet connections and other third-party software and services necessary for you and your Authorized Users and Restaurant Guests to access the Platform and the Restaurant Website(s) as applicable. You are responsible for the acts and omissions of your Restaurant Guests and their compliance with this Agreement. For purposes of this Agreement, “Platform” means BentoBox’s proprietary platform that allows Subscribers to create and manage their restaurant websites (collectively the “Restaurant Website(s)”), access and fulfill Orders, and manage their restaurant’s marketing and operations in the digital space. For purposes of this Agreement, “Restaurant Guests” means the end customer of Subscriber that is designated by Subscriber as having the right to access and use the Subscriber’s Restaurant Website(s) through the Platform. The “Services” means BentoBox’s provision of the Platform and your Restaurant Website(s), and includes activities that are required, usual, appropriate or acceptable in performing the Services, including to (a) carry out the Services or the business of which the Services are a part, (b) carry out the benefits, rights and obligations relating to the Services, (c) maintain records relating to the Services, or (d) comply with any legal or self-regulatory obligations relating to the Services.1.2 Modifications; Suspension. We modify the Platform and our Website from time to time by adding or deleting features to improve the user experience. In addition, we may suspend access to the Platform when we believe, in our sole discretion, such suspension is in the best interests of BentoBox, or its subscribers.
1.3 Customer Support
We accept support questions twenty-four (24) hours per day, seven (7) days per week via the Platform and via email at email@example.com. Responses to support questions submitted through the Platform are provided during our normal business hours only. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time.
1.4 Incorporated Terms
Your use of the Platform, and any content provided to you by BentoBox, including, without limitation, website themes, website templates, and other information (collectively, the “Content”), are governed by this Agreement, as well as the Website’s terms of service (the “Terms of Service”), which may be updated from time to time by BentoBox without notice to you. The Terms of Service, as amended (collectively, the “Incorporated Terms”), are incorporated into this Agreement by this reference and made a part hereof. In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, the terms of this Agreement shall prevail.
2. THIRD-PARTY SERVICES.
2.1 Usage of Third-Party Services
Through the Platform or through a separate transaction, BentoBox may recommend, provide you with access to, or enable third-party software, applications, products, services or links (collectively, “Third-Party Services”). Some Third-Party Services may be embedded and/or incorporated into your Restaurant Website(s). Such Third-Party Services are made available only as a convenience, and your purchase, access or use of any such Third-Party Services is solely between you and the applicable provider of such Third-Party Services (“Third-Party Provider”). This remains true even if payment is made to BentoBox for the Third-Party Service – your contractual relationship for the Third-Party Service remains solely and exclusively with the Third-Party Provider. The availability of Third-Party Services on the Platform, or the integration or enabling of such Third-Party Services with the Services, does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with BentoBox. You agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, Third-Party Providers. For all matters concerning the Third-Party Service, such as questions, requests for customer support, complaints, suggestions, demands, suits, and/or any other item, you should consult your agreement with the applicable Third-Party Provider, and you agree that you will pursue such matter solely and exclusively with the applicable Third-Party Provider and not with BentoBox.
2.2 Disclaimers Regarding Third-Party Services
BentoBox does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. BENTOBOX IS NOT THE PROVIDER OR MANUFACTURER OF THE THIRD-PARTY SERVICES, OR THE AGENT OF ANY PROVIDER OR MANUFACTURER. AS SUCH, BENTOBOX MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY SERVICES AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
Under no circumstances shall BentoBox be liable for any damages or claims of any kind whatsoever, including, without limitation, direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages, that result from any Third-Party Services or your contractual relationship with any Third-Party Provider. BentoBox does not provide refunds or any other remedy regarding any Third-Party Service or Third-Party Provider, even if payment was made to BentoBox for the Third-Party Service. In relation to BentoBox, your sole and exclusive remedy regarding any Third-Party Service or relation with any Third-Party Provider, is to stop using the Third-Party Service on a go-forward basis.
You agree to indemnify and hold harmless the BentoBox Indemnitees (as defined below) from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third-Party Service or your relationship with a Third-Party Provider.
3. FEES AND PAYMENT.
You shall pay all applicable subscription fees made known to you during registration (collectively, the “Subscription Fees”). You shall pay one time set up fees made known to you during registration (the “One Time Setup Fees”). You shall also pay any additional fees that may be incurred due to late payments (collectively, the "Late Payment Fees"). We may update or modify the Subscription Fees, the One Time Setup Fees, and the Late Payment Fees (collectively, the Fees”) from time to time, and shall provide notice to you (including via the Platform or Website) upon such update or modification. Billing begins upon signup and all Subscription Fees are due at the beginning of each service period.
The Fees do not include federal, state, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which shall be for your account. The Fees payable under this Agreement shall not be reduced as a result of any such Taxes. Upon making a determination that any such Taxes apply, we will invoice you for such Taxes and remit any payments made on any such invoice directly to the appropriate taxing authorities; provided that any failure by us to include such Taxes on an invoice shall not relieve you of responsibility for any such applicable Taxes. You shall promptly reimburse us for any and all such Taxes that we are required to pay in connection with this Agreement or its performance. You hereby agree to defend, indemnify, and hold harmless BentoBox, our Affiliates (as defined below) and our and their respective officers, directors, managers, employees, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us in connection with this Agreement or its performance. Notwithstanding the foregoing, we shall be responsible for any taxes related to our income, property, franchise, or employees. For purposes of this Agreement, “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
3.3 Payment Methods
All amounts due under this Agreement shall be paid by credit card, ACH, or other payment method agreed to by BentoBox. You hereby authorize us to charge your credit card on file or other payment instrument or issue an ACH transaction for: (i) Subscription Fees and applicable Taxes for each month and/or each year during the Term on the same date on which you registered to use the Platform; and (ii) the One Time Setup Fees and applicable Taxes on the Effective Date of this Agreement (collectively, the “Payment Date”). You further authorize us to use a third party to process such payments, and hereby consent to the disclosure of your billing information to such third party. You shall promptly provide BentoBox with updated credit card information in the event that your credit card on file is no longer valid. If the credit card information on file with BentoBox is not valid at any time during the Term, or if your credit card cannot be processed on any Payment Date, (i) you hereby authorize BentoBox to continue to attempt to charge the amounts due until such amounts are paid in full; and (ii) BentoBox reserves the right to immediately terminate this Agreement, or suspend your access to the Platform and disable your Restaurant Website(s), in whole or in part, at BentoBox’s sole discretion. If at any time your access to the Platform and your Restaurant Website(s) is suspended or disabled (as applicable) for non-payment, we may charge a reactivation fee to reinstate them. BentoBox reserves the right to stop accepting credit card payments from one or more issuers upon written notice to you. If you are paying by any method other than credit card, all invoicing and payment terms shall be agreed to by the parties in writing.
3.4 Fees Non-Refundable
All Fees and Taxes payable under this Agreement are non-refundable.
4. GIFT CARDS.
BentoBox provides software to enable restaurants to sell and manage digital gift cards, physical gift cards, or both (the “Gift Cards”) through our Platform with payments securely processed for the restaurant through Square or Stripe. The following terms and conditions describe the terms and conditions that apply to the use of the Gift Cards:
4.1 Digital Gift Cards
Digital Gift Cards are issued by the restaurant as an electronic product facilitated by BentoBox. Diners are able to purchase a digital gift card from the restaurant’s website powered by BentoBox. On behalf of the restaurant, BentoBox generates a Gift Card code to create the digital Gift Card for the requested amount of funds. The restaurant charges the customer for the Gift Card and customer’s funds are received and held on the restaurant's Square or Stripe account which are then released to the restaurant’s bank account. BentoBox has no ownership of, control over, or access to the funds associated with Gift Card purchases. BentoBox manages the ledger of the digital Gift Card balance and provides the ability for restaurants to update the balance through BentoBox backend as diners redeem their Gift Cards from the restaurant online or on-premise.
4.2 Physical Gift Cards
BentoBox helps restaurants sell physical Gift Cards they independently generate, issue, and sell on-premise at their physical restaurants. For restaurants that do not use BentoBox to power their websites, BentoBox can provide the ability to sell physical Gift Cards directly with the restaurant’s existing website. The Platform also helps you manage and fulfill these orders. Similar to a general merchandise item, the inventory and fulfillment for a physical Gift Card is handled by the restaurant
Where the restaurant’s website is powered by BentoBox, the restaurant’s customers can also purchase physical Gift Cards through the Restaurant Website. For these purchases, the restaurant will receive a physical Gift Card order in their BentoBox back-end order system and the restaurant will then fulfill the order by mailing the physical Gift Card to the diner. The restaurant credits the Gift Card amount purchased by the diner directly from the restaurant’s POS system or Gift Card platform (not BentoBox) and the payment received and held on the restaurant's Square or Stripe account. Once the transaction is processed and the gift card shipped, the restaurant changes the status of the order to be fulfilled in BentoBox back-end.
BentoBox does not manage the ledger for physical Gift Cards. We only provide data management and processing services to facilitate restaurants’ initial sales of physical Gift Cards.
4.3 Gift Card Issuing Terms
BentoBox enables you to offer your Restaurant Guests Gift Cards through your Restaurant Website(s) and, with respect to digital Gift Cards, to manage the redemption of Gift Cards as well. You, and not BentoBox, are the issuer of the Gift Cards, and the Gift Cards are sold by you and not by us. The funds associated with Gift Cards you issue, and the Gift Cards themselves, are your property and not the property of BentoBox. For physical Gift Cards, BentoBox provides only transaction processing and order management services, and does not provide ledgering services. For digital Gift Card balances, BentoBox also provides ledgering services including the ability to update balances for on-premises redemptions of your Gift Cards from you. Nevertheless, you are responsible for confirming through the Platform the balance of any digital Gift Card you redeem, whether it is redeemed online or in your physical locations.
Gift Cards that BentoBox facilitates issuance of or otherwise helps you manage cannot have an expiration date and you may not charge any fees for your Gift Cards, whether for initial issuance, redemption, maintenance or otherwise. Unused balances on Gift Cards must remain available to each holder of the Gift Card (that is, the Restaurant Guest) until the balance is redeemed, even if you discontinue your relationship with BentoBox. The Gift Cards you sell may only be redeemed for purchases of your products and services and not for purchases involving any third party marketplaces. You are not permitted to provide the holders of your Gift Cards with cash back on their gift cards unless required by applicable law to do so. To the extent that you provide any such redemptions, you must update your ledger with BentoBox accordingly. BentoBox reserves the right to establish limits on the amounts in which Gift Cards may not issued through the Platform, but in no event may you issue gift in amounts exceeding $2,000, or enable holders to add value to a Gift Card you have issued, that would result in the value of the Gift Card exceeding $2,000 on any given day. You may not issue more than $10,000 in Gift Cards to any person in a single day.
Federal, state and local laws regulating gift cards may apply to your Gift Cards and impose obligations including restrictions on expiration date, fees and refunds. You are solely responsible for compliance with all such applicable laws relating to the sale, issuance, maintenance and redemption of Gift Cards you issue to your Restaurant Guests. This includes responsibility for compliance with unclaimed property laws (e.g., escheat requirements) and the provision to your Restaurant Guests of any necessary customer service associated with Gift Cards. You are solely responsible for any liability for Gift Cards you issue to your Restaurant Guests, including liability associated with the use or the misuse of Gift Cards, as well as any third party claims arising from or relating to your Gift Cards.
5. TERM, TERMINATION, AND SUSPENSION.
The term of this Agreement commences on the date you accept this Agreement (the “Effective Date”) and continues in full force and effect until terminated pursuant to Section 5.2 (the “Term”).
Either Party may terminate this Agreement: (i) upon thirty (30) days’ notice to the other Party; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. We may terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 12.3 below.
5.3 Suspension for Non-Payment
We may suspend your access to the Platform and disable your Restaurant Website(s) upon ten (10) days’ notice to you if any payment due to us is over twenty-one (21) days past due, and such failure to pay will be considered a material breach of this Agreement.
5.4 Effect of Termination
Upon termination of this Agreement: (i) all rights granted hereunder to you, your Authorized Users and Restaurant Guests will immediately cease, and you, your Authorized Users and Restaurant Guests will immediately cease all access and use of the Platform and your Restaurant Website(s), as applicable; (ii) you will promptly pay all unpaid Subscription Fees and Taxes due through the end of the Term; and (iii) each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other Party’s Confidential Information that are in its possession or control.
The following provisions will survive expiration or termination of the applicable Agreement: Section 3 (“Fees and Payment”) until you have paid all amounts due hereunder; Section 5.4 (“Effect of Termination”); this Section 5.5 (“Survival”); Section 6.4 (“Aggregated Data”); Section 7 (“Intellectual Property”); Section 9 (“Confidentiality”); Section 10.4 (“Disclaimer”); Section 11 (“Limitation of Liability”); Section 12 (“Indemnification”); and Section 15 (“General Provisions”).
6. DATA PROTECTION.
6.1 Subscriber Data
We will use any information, data and content that you, your Authorized Users and your Restaurant Guests submit through the Platform, including but not limited to, the Orders (collectively, the “Subscriber Data”) only to provide the Services. You shall have the sole responsibility and liability for the accuracy, quality, and legality of your Subscriber Data.
6.2 License to Subscriber Data
Subject to the terms and conditions of this Agreement, you hereby grant us during the Term a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, enhance, aggregate, combine with other data, perform, display, and distribute the Subscriber Data to you and your Authorized Users and Restaurant Guests in order to provide the Platform.
6.3 Data Security
We shall employ commercially reasonable physical, administrative, and technical safeguards to secure the Subscriber Data from unauthorized use or disclosure.
6.4 Aggregated Data
We may monitor the performance and use of the Website and the Platform by all of our customers, combine this data with other data (including your Subscriber Data), and use such combined data to create and derive aggregated and/or anonymized data that does not identify you or any consumer (“Aggregated Data”). You hereby agree that we may collect, use, and publish such Aggregated Data for the purpose of creating aggregated and anonymized statistics regarding our customer base, for benchmarking purposes, improving our products and services, and for sharing it with our prospective customers and business partners.
6.5 Privacy Policies
6.6 Consumer Requests
You are solely responsible for identifying and responding to consumer requests to exercise rights to access, delete, or opt out of the sale of personal information. BentoBox will provide reasonable assistance to you in responding to such consumer requests, which may include assistance by way of providing self-service functionality.
Upon expiration or earlier termination of this Agreement, BentoBox will delete the personal information within six months.
7. INTELLECTUAL PROPERTY.
All right, title, and interest in and to the Website, the Platform, the Content, and the Aggregated Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain our sole and exclusive property. Subject to Section 6 and this Section 7, all right, title, and interest in and to Subscriber Data, and all proprietary rights therein, shall be and remain your sole and exclusive property.
8. USE; RESTRICTIONS ON USE.
8.1 Authorized Users
In connection with your subscription to the Platform, during the Term you may authorize any number of your employees, contractors, agents, or representatives to access and use the Platform (the “Authorized Users”); provided, however, that any contractors’, agents’, or representatives’ access to and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other persons who access and use the Platform using any of your or your Authorized Users’ login credentials, including usernames, passwords, and any other unique identifiers (the “Login Credentials”), and their compliance with this Agreement. Further, you are solely responsible for the confidentiality and use of the Authorized Users’ Login Credentials. When creating the account, Authorized Users must provide true, accurate, current, and complete information. You will promptly inform us of any need to deactivate an Authorized User or change any Login Credential information. We reserve the right to delete or change Authorized Users’ Login Credentials at any time and for any reason. We will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account.
8.2 Restrictions on Use
You shall not (and will not authorize, permit, or encourage any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, or translate the Platform; (iii) make any copies of the Platform; (iv) resell, distribute, or sublicense the Platform without our prior written permission in each instance, which we may withhold in our sole and absolute discretion; (v) remove or modify any proprietary marking or restrictive legends placed on the Platform; or (vi) use the Platform in violation of any applicable law or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in the Agreement.
9.1 Definition of Confidential Information
“Confidential Information” means: (i) with respect to BentoBox, the Platform, the Website, the Content, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; and (ii) with respect to you, your Subscriber Data and any other non-public information or material regarding your legal or business affairs, financing, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
9.2 Confidentiality Obligations
At all times, the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
10.1 Mutual Representations and Warranties
Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement; (ii) the execution, delivery, and performance of the Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
10.2 Your Additional Representations and Warranties
In addition to the representations and warranties set forth in Section 10.1, you represent and warrant to us that your use of the Website, the Platform, and the Content shall at all times comply with all applicable laws, rules, and regulations.
10.3 BentoBox’s Additional Representations and Warranties
In addition to the representations and warranties set forth in Section 10.1, BentoBox represents and warrants that during the Term of this Agreement, the Platform will enable you to use the Content to create Restaurant Website(s) (excluding any Third-Party Services and any Subscriber Data) that substantially meet the material elements of the Web Content Accessibility Guidelines for Level AA (collectively the “Website Accessibility Specifications”). Your sole and exclusive remedy under the warranty set forth in this Section 10.3, and our sole and exclusive liability and responsibility related to the accessibility or inaccessibility claims, is that BentoBox will use reasonable efforts, as determined by us in our business judgement, to correct, within a reasonable period of time, any failure of your Restaurant Website(s) to substantially comply with the material elements of the Website Accessibility Specifications, as reported by you to BentoBox in writing, at no additional cost to you. For the purposes of this Agreement, “Web Content Accessibility Guidelines” means the series of guidelines produced by the World Wide Web Consortium for improving web accessibility and identified as WCAG 2.1. If we are unable to correct any such failure, your sole and exclusive remedy is to decline to renew this Agreement at the expiration of the then-current term. The parties agree that this term and limitation of remedies is an essential basis of the bargain between the parties.
YOU ACKNOWLEDGE THAT ALTHOUGH THE WEBSITE, THE PLATFORM, AND THE CONTENT CAN BE USED AS AIDS TO YOU TO MAKE INFORMED BUSINESS DECISIONS, THEY ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL OR BUSINESS ADVICE OR YOUR EXERCISE OF YOUR OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT YOUR SOLE DISCRETION AND ELECTION. IF THE WEBSITE, THE PLATFORM, OR THE CONTENT INCLUDES ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, BENTOBOX MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS, OR THE ACCURACY OF SUCH PREDICTIONS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1 AND SECTION 10.3, THE WEBSITE, THE PLATFORM, THE CONTENT, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BENTOBOX DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND BENTOBOX HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, 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 BENTOBOX 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.
11. LIMITATION OF LIABILITY.
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 THE AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER AN AGREEMENT REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE PERIOD THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
12.1 Indemnification by You
You will indemnify, defend, and hold BentoBox, its Affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “BentoBox Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any BentoBox Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your or your Authorized Users’ use of the Website, the Platform, or the Content in violation of this Agreement; (ii) your breach of any of your representations and warranties hereunder; (iii) your Restaurant Website(s); or (iv) your gross negligence or willful misconduct; provided, however, that the foregoing obligations shall be subject to our: (x) promptly notifying you of the Claim; (y) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (z) providing you with sole control over the defense and negotiations for a settlement or compromise.
12.2 Indemnification by BentoBox
BentoBox will indemnify, defend, and hold you, your Affiliates, and your respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, the “Subscriber Indemnitees”) harmless from and against any and all Losses incurred by any Subscriber Indemnitee in connection with a third-party Claim arising from any allegation that the use of the Website, the Platform, and/or the Content in accordance with the Agreement infringes or misappropriates any third-party patents, copyrights, trademarks, or trade secrets; provided, however, that the foregoing obligations shall be subject to your: (i) promptly notifying us of the Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold any Subscriber Indemnitees harmless hereunder to the extent the Claim arises from or is based upon (a) your or your Authorized Users’ use of the Website, the Platform, or the Content not in accordance with this Agreement; (b) any unauthorized modifications, alterations, or implementations of the Website, the Platform, or the Content made by you or at your request (other than by us); (c) use of the Website, the Platform, or the Content in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; (d) the Third-Party Services that are incorporated and/or embedded in or integrated with your Restaurant Website(s); (e) your Subscriber Data; or (f) your Restaurant Website(s).
12.3 Infringement Claims
In the event that we reasonably determine that the Website, the Platform, or the Content are likely to be the subject of a Claim of infringement or misappropriation of third-party rights, we shall have the right (but not the obligation), at our own expense and option, to: (i) procure for you the right to continue to use the Website, the Platform, or the Content as set forth hereunder; (ii) replace the infringing components of the Website, the Platform, or the Content with other components with the equivalent functionality; or (iii) suitably modify the Website, the Platform, or the Content so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate the Agreement without further liability to you. This Section 12.3, together with the indemnity provided under Section 12.2, states your sole and exclusive remedy, and our sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
13. TRANSACTIONS INVOLVING ALCOHOL.
You may have the option to advertise, offer, sell, or deliver alcohol products to Restaurant Guests. You agree that you will require a valid government-issued identification to receive alcohol products, you will not offer, sell, or deliver alcohol products to any Restaurant Guest under the age of 21, and that the recipient will not be intoxicated when receiving such alcohol products. Further, you must comply with all applicable laws, rules, and regulations to advertise, offer, sell, or deliver alcohol products, including, without limitation, those set forth by the Federal Trade Commission (FTC), Food and Drug Administration (FDA), Alcohol and Tobacco Tax and Trade Bureau (TTB), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Federal Alcohol Administration (FAA), Distilled Spirits Council (DISCUS), Beer Institute (BI), and other federal, state, and local alcohol beverages laws, rules, regulations, and industry standards.
You agree to indemnify and hold harmless the BentoBox Indemnitees from any claim or demand, including reasonable attorneys’ fees, arising out of your breach of laws, rules or regulations related to the advertising, offering, sale or delivery of alcohol products.
14. EXPORT CONTROL.
You may not use, export, import, transfer, or allow the use of the Services, except as authorized by U.S. law, the laws of the jurisdiction in which you obtained our Services, and any other applicable laws. In particular, but without limitation, our Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, Services or technology provided by BentoBox are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer BentoBox products, Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15. GENERAL PROVISIONS.
Subscriber may not assign or otherwise transfer any of its rights or obligations under an Agreement without the prior written consent of BentoBox. Any assignment or other transfer in violation of this Section will be null and void.
No failure or delay by either Party in exercising any right or remedy under an Agreement shall operate or be deemed as a waiver of any such right or remedy.
15.3 Governing Law; Forum
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Borough of Manhattan, New York City, New York.
Any modification to this Agreement must be in a writing signed by both Parties; provided, however, that we may modify the Incorporated Terms at any time by posting such modifications on the Website, and any such modification shall automatically go into effect immediately. It is your responsibility to check the Website periodically for such updates.
15.5 Independent Contractors
The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
15.6 Third-Party Beneficiaries
The Parties hereby agree that the licensors of the Third-Party Services are express, intended third-party beneficiaries under this Agreement with respect to their intellectual property rights. Except as set forth in the immediately prior sentence and in Section 12.1 and Section 12.2, there are no other third-party beneficiaries under this Agreement.
If any provision of an Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of the Agreement shall remain in full force and effect. Any provision of an Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
15.8 Entire Agreement
This Agreement, including the Incorporated Terms, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties.