1. DEFINITIONS. As used in this Agreement:
1.1 “Confidential Information” means all information regarding a party's business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Subscriber Data is the Confidential Information of Subscriber. Confidential Information of DineWise includes non-public information derived from or concerning the DineWise Service, the DineWise Platform, the Documentation and the terms of this Agreement.
1.2 “Connected Account” means any third-party platform connected to, or integrated with, the DineWise Platform by or on behalf of Subscriber, such as third party e-commerce stores and platforms or third party payment processors.
1.3 “Connected Account Data” means any data collected from, or provided by, any Connected Account.
1.4 “Connected Stores” means any Connected Account of Subscriber that relates to an e- commerce store or platform.
1.5 “DineWise Platform” means the technology, including APIs, used by DineWise to deliver the DineWise Service to Subscriber.
1.6 “DineWise Service” means the service(s) delivered by DineWise to Subscriber as more fully described in the Order Form.
1.7 “Documentation” means any user manuals, handbooks, and online materials provided by DineWise to Subscriber that describe the features, functionality, or operation of the DineWise Platform.
1.8 “End User” means any end user of the DineWise Platform that is not a User.
1.9 “End User Data” means any data or information that may be collected by DineWise from End Users.
1.10 “Go-Live Date” means the earlier of: (i) the date any implementation services set forth in an Order Form are completed; (ii) any date specified in an Order Form as the date any log-in credentials are to be provided to Subscriber; or (iii) if no implementation are specified in the Order Form, the effective date of the Order Form.
1.11 “Order Form” means any order form for DineWise Service executed by both parties that references this Agreement. The initial Order Form is attached hereto as Exhibit A.
1.12 “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the DineWise Platform relating to the use, performance, efficacy, reliability and/or accuracy of the DineWise Platform, which does not contain any personally identifiable information or Subscriber Data.
1.13 “Subscriber Data” means any data uploaded or transmitted to the DineWise Service by Subscriber. For clarity, Subscriber Data does not include End User Data.
1.14 “Users” means Subscriber's employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the DineWise Platform.
2. DINEWISE SERVICE.
2.1 Subscription to the DineWise Platform. Subject to the terms and conditions of this Agreement, DineWise hereby grants to Subscriber, as of the Go-Live Date, a non-sublicensable, non- transferable (except as provided in Section 11.6), non- exclusive subscription to access and use the DineWise Platform by solely for Subscriber's internal business purposes, during the subscription period set forth in the applicable Order Form.
2.2 Support. Subject to the terms of this Agreement, including the payment of applicable fees, DineWise shall use commercially reasonable efforts to provide the DineWise Platform and make the DineWise Platform available in accordance with its historical uptimes.
2.3 Implementation Services. If applicable, DineWise will provide the implementation services set forth in one or more Order Forms. DineWise will use commercially reasonable efforts to perform such DineWise Services in a professional and workmanlike manner and in accordance with any timelines set forth in such Order Form(s); provided, that, all timelines are intended as reasonable estimates only. Subscriber agrees to provide such information, data and approvals as are reasonably requested by DineWise, and DineWise will not be responsible for any delays resulting from Subscriber's failure to provide such information, data and approvals.
2.4 Connected Accounts. In order to access many of the features and functions of the DineWise, Service, Subscriber will need to link its Connected Accounts to the DineWise Platform. Subscriber is solely responsible for complying with all Documentation related to the proper setup and integration of Connected Accounts, and DineWise shall not be responsible for any failure of Subscriber to comply with DineWise's Documentation. By granting DineWise access to any Connected Account, (i) Subscriber represents and warrants that it is entitled to disclose any log-in information provided by Subscriber in connection therewith (if applicable) and/or to grant DineWise access to such Connected Accounts, (ii) Subscriber represents and warrants that it is in good standing with respect to such Connected Accounts, and (iii) Subscriber acknowledges that DineWise may access Connected Account Data so that it may be used in accordance with the terms of this Agreement. Subscriber further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. DineWise will have no liability for any unavailability of any Connected Account, or any third-party provider's decision to discontinue, suspend or terminate any Connected Account.
3. SUBSCRIBER's USE OF THE DINEWISE PLATFORM.
3.1 Access and Security Guidelines. Each User will be provided access to and use of the DineWise Platform through confidential account credentials. Subscriber will be responsible for all uses of its account, except to the extent caused by DineWise's negligence. Subscriber will promptly notify DineWise of any unauthorized use or access to its account. User seats may not be shared amongst other Users.
3.2 Restrictions. Subscriber will not, and will not permit any User or other party to: (i) reverse engineer, disassemble or decompile any component of the DineWise Platform; (ii) interfere in any manner with the operation of the DineWise Service, or the DineWise Platform or the hardware and network used to operate the DineWise Service; (iii) sublicense any of Subscriber's rights under this Agreement, or otherwise use the DineWise Platform for the benefit of a third party or to operate a service bureau; (iv) modify, copy or make derivative works based on any part of the DineWise Platform; or (v) otherwise use the DineWise Service in any manner that exceeds the scope of use permitted under Section 2.1.
4. FEES, PAYMENT AND SUSPENSION OF SERVICES. Subscriber will pay DineWise the fees for the DineWise Service as set forth on the applicable Order Form (“Fees”). Unless otherwise stated in the applicable Order Form: (i) all subscription Fees will be paid in advance and all other Fees will be paid in arrears; and (ii) are due within thirty (30) days of receipt of invoice. All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on DineWise's income. DineWise reserves the right (in addition to any other rights or remedies DineWise may have) to discontinue the DineWise Service and suspend Subscriber's access to the DineWise Service if any Fees set forth in the applicable Order Form are more than thirty (30) days overdue until such amounts are paid in full. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information.
5. CONFIDENTIAL INFORMATION.
5.1 Confidentiality. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 5.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, (i) all Subscriber Data (including all personal information) is and will remain the Confidential Information of Subscriber; and (iii) the terms of this Agreement are the Confidential Information of both parties.
5.2 Exclusions. Subject to Section 5.3, Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
5.3 Subscriber Data Exception. Notwithstanding the provisions of Section 5.2 or any other provisions of this Agreement, none of the exclusions set forth in Section 5.2 apply to any Subscriber Data, regardless of whether such Subscriber Data may be publicly available or otherwise qualify for exclusion under any of the other provisions of Section 5.2.
5.4 Confidentiality and Use. Each Receiving Party recognizes and agrees that the Confidential Information of the Disclosing Party is critical to the Disclosing Party's business and that neither party would enter into this Agreement without assurance that such information and its value will be protected as provided in this Section 5 and elsewhere in this Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the duration of the Agreement: (a) not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 5.5 , not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; (d) ensure its representatives' compliance with, and be responsible and liable for any of its representatives' noncompliance with, the terms of this Section 6; and (e) notify the Disclosing Party in writing promptly any unauthorized disclosure or use of the Disclosing Party's Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
5.5 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 5.4; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party's obligations hereunder with respect to the Confidential Information so disclosed.
5.6 Return or Destruction of Subscriber's Confidential Information. Upon Subscriber's written request and subject to any contrary obligations under applicable law, DineWise shall at Subscriber's direction promptly return or destroy and erase from all systems it directly or indirectly uses or controls (i) all originals and copies of all documents, materials, and other embodiments and expressions in any form or medium that contain, reflect, incorporate, or are based on Subscriber's Confidential Information, in whole or in part; or (ii) solely such specific Subscriber Data, databases, or other collections or articles of Subscriber's Confidential Information as Subscriber may request.
5.7 End User Data. Subscriber acknowledges and agrees that DineWise will process all End User Data in accordance with its privacy policy available at https://dinewise.com/privacy, as may be updated from time to time.
6. OWNERSHIP AND DATA.
6.1 DineWise Platform and Technology. Subscriber acknowledges that DineWise retains all right, title and interest in and to the DineWise Platform and all software and all DineWise proprietary information and technology used by DineWise or provided to Subscriber in connection with the DineWise Service (the “DineWise Technology”), and that the DineWise Technology is protected by intellectual property rights owned by or licensed to DineWise. Other than as expressly set forth in this Agreement, no license or other rights in the DineWise Technology are granted to the Subscriber. Subscriber hereby grants DineWise a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the DineWise Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the DineWise Service. DineWise shall not identify Subscriber as the source of any such feedback.
6.2 Subscriber Data. Subscriber retains all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to DineWise a non- exclusive, worldwide, royalty-free and fully paid-up license to access and use Subscriber Data to provide the DineWise Services to Subscriber.
6.3 Data Security. DineWise currently utilizes GCP as reputable hosting services providers, to store all Subscriber Data; provided, that, DineWise may utilize other hosting service providers of similar repute, such Microsoft Azure or AWS. In the event DineWise becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data (“Security Breach”), DineWise will (i) promptly notify Subscriber in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks.
6.4 Performance Data. DineWise retains all right, title and interest in and to the Performance Data, and may use Performance Data for any lawful purpose.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) year (the “Initial Order Term”), and will automatically renew for successive one (1) year terms (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term. Unless otherwise set forth in the Order Form, DineWise may increase the Fees for the DineWise Services for any Renewal Order Term by providing no less than forty-five (45) days prior written notice of such Fee increase.
7.2 Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (i) any amounts owed to DineWise under this Agreement will become immediately due and payable; and (ii) each party will return to the other all property (including any Confidential Information) of the other party. DineWise agrees that upon expiration or termination of this Agreement, DineWise will remove all Subscriber Data from the DineWise Platform and all Subscriber access to the DineWise Service will cease. Sections 1, 5, 6, 7.2, 8.3, 8.4, 9-11 will survive the termination of this Agreement.
8. WARRANTY; DISCLAIMER.
8.1 Mutual Warranty. Each party represents and warrants that (i) it has the legal power and authority to enter into this Agreement; (ii) it will comply with any and all applicable laws, rules and regulations with respect to its performance of its obligations, and exercise of rights granted to it, hereunder; and (iii) it is not bound by any agreement with any third party that would prohibit or interfere with its ability to perform its obligations hereunder.
8.2 DineWise Limited Warranty. During the Term, DineWise warrants that the DineWise Service, when used as permitted by DineWise and in accordance with the Documentation, will operate as described in the Documentation in all material respects. If Subscriber notifies DineWise of any breach of the foregoing warranty, DineWise shall, as Subscriber's sole and exclusive remedy, provide use commercially reasonable efforts to repair and fix the non-conforming service.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) THE DINEWISE SERVICE, DINEWISE PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (II) DINEWISE AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. INDEMNITY.
9.1 By DineWise. If any action is instituted by a third party against Subscriber based upon a claim that the DineWise Service or DineWise Platform, as delivered, infringes any third party's intellectual property rights, DineWise shall defend such action at its own expense on behalf of Subscriber and shall pay all damages attributable to such claim which are finally awarded against Subscriber or paid in settlement. Notwithstanding the foregoing, DineWise will not have any obligation hereunder to the extent such claim is based on any Subscriber Data. If the DineWise Service or DineWise Platform is enjoined or, in DineWise's determination is likely to be enjoined, DineWise shall, at its option and expense (i) procure for Subscriber the right to continue using the DineWise Service, (ii) replace or modify the DineWise Platform or DineWise Service so that it is no longer infringing but continues to provide comparable functionality, or (iii) terminate this Agreement and Subscriber's access to the DineWise Service and refund any amounts previously paid for the DineWise Service attributable to the remainder of the then- current term. This Section sets forth the entire obligation of DineWise and the exclusive remedy of Subscriber against DineWise for any claim that the DineWise Service infringes a third party's intellectual property rights.
9.2 By Subscriber. Solely to the extent permitted under applicable law, if any action is instituted by a third party against DineWise relating to (i) Subscriber's breach or alleged breach of Section 2.1 or 2.5, (ii) any claim that the Subscriber Data infringes upon, or misappropriates, any third party's rights, including intellectual property rights, or (iii) Subscriber's use of the DineWise Services in violation of any applicable laws, rules or regulations, Subscriber will defend such action at its own expense on behalf of DineWise and shall pay all damages attributable to such claim which are finally awarded against DineWise or paid in settlement of such claim. This subsection states the sole and exclusive remedy of DineWise and the entire liability of Subscriber for the claims and actions described herein.
9.3 Procedure. Any party that is seeking to be indemnified under the provision of this Section 9 must (i) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (ii) give the Indemnifying Party the sole control over the defense of such Claim.
10. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, EXCLUDING BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL DINEWISE OR SUBSCRIBER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL DINEWISE's OR SUBSCRIBER's AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY DINEWISE FROM SUBSCRIBER PURSUANT TO THE APPLICABLE ORDER FORM OR STATEMENT OF WORK DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO PAYMENT AND INDEMNITY OBLIGATIONS. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.
11. GENERAL PROVISIONS.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which DineWise's principal place of business is located for any lawsuit filed there against Subscriber by DineWise arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from California law.
11.2 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from DineWise, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled DineWise Limited Warranty.
11.4 Waiver. 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.
11.5 Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties' rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the DineWise Service and DineWise Technology contain valuable trade secrets and proprietary information of DineWise, that any actual or threatened breach of the sections titled Restrictions or Confidential Information or any other breach by Subscriber of its obligations with respect to intellectual property rights of DineWise will constitute immediate, irreparable harm to DineWise for which monetary damages would be an inadequate remedy. In such case, DineWise will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.
11.6 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Subscriber's relationship to DineWise is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of DineWise.
11.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally- recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and DineWise.