BY ACCESSING, INSTALLING OR USING ANY PART OF THE SERVICE,CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT THE PERSON ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT HE OR SHE (1) HAS FULL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT; AND (2) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. BY CLICKING THROUGH OR OTHERWISE ACCEPTING THIS AGREEMENT ELECTRONICALLY, INCLUDING BY ACCESSING, INSTALLING, OR USING THE SERVICE, CUSTOMER IS CONSENTING TO THE USE OF ELECTRONIC DELIVERY OF DOCUMENTS AND AN ELECTRONIC SIGNATURE, AND AGREES THAT SUCH ELECTRONIC SIGNATURE IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BINDING TO THE SAME EXTENT AS ORIGINAL SIGNATURES.
This agreement (this “Agreement”) sets forth the terms and conditions governing the cloud-based restaurant management platform service which includes business analytic software modules, and other related consulting services(together the “Service(s)”) made available by Cookdash Inc. d.b.a Superorder, a Delaware Corporation (“Company”) which the enduser customer (hereinafter “Customer”), may acquire from Company or from a reseller or partner (“Reseller”), issued on its behalf under an order form (“Order Form”) or from an online marketplace pursuant to this Agreement. The “Effective Date”of the Agreement and license(s) granted under this Agreement will be the earlier of the date set forth in the Order Form(s) entered into by Superorder or the date on which Superorder initially delivers an email that contains Customer’s unique credentials that allow Customer to access the Service. Customers request as part of the Services for Company to manage their online restaurant store(s) and/or its Affiliate restaurant individual account(s) within third-party delivery and listing platforms (“Delivery and Listing Accounts”) including but not limited to Seamless, Grubhub, Uber Eats, DoorDash, Yelp and Google. “Affiliate” means, with respect to any party, any entity that directly or indirectly controls, is controlled by, or is under common control with a party, now or anytime in the future. For purposes of this definition,“control” means having ownership of the majority of the voting securities of such a party. During the Service Period (as defined below) in order to perform the Services, Customer acknowledges and agrees Company shall be Customer’s exclusive provider of theseServices and the only third party which Customer grants access to the Delivery and Listing Accounts. Further, the Services may enable or require Customer to associate its instance of the Service with, link to, or otherwise access, third parties’ websites, Delivery and Listing Accounts platforms, content, products, services, or information (“Third Party Services”). Third Party Services are not part of the Services, and Company does not control and is not responsible for the Third-Party Services. Customer is solely responsible for: (a) obtaining and complying with any terms of access and use of the Third-Party Services, including any separate fees or charges imposed by the provider of the Third-Party Services; and (b) configuring the Third-PartyServices appropriately. Company disclaims all responsibility and liability arising from or related to Customer’s access or use of the Third-Party Services, including any impact on Service capabilities as a result of Customer’s use of, or reliance upon, the Third-Party Services.
Company grants Customer a nonexclusive, non-transferable limited right to access and use the Services solely for Customer’s internal business purposes and subject to the terms of the Agreement and in accordance with documentation provided or made available by Customer (“Documentation”) during the applicable service period defined in the Order Form (“Service Period”). Customer may allow its Affiliate(s) to use the Service provided that (a) the Affiliate only uses the Service for Customer’s or Affiliate’s internal business purposes and up to the authorized number of Delivery and Listing Accounts acquired in the Order Form and (b) Customer is responsible for and remains liable for the Affiliate’s use of the Service in compliance with the terms and conditions of this Agreement. Notwithstanding the forgoing, any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Company and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to “Customer” in this Agreement are deemed to be references to such Affiliate.
3.1 By submitting information,Delivery and Listing Accounts access and credentials, or log-in information, and other content (“Customer Content”) to Company through the Services, Customer expressly directing Company to use that content, and licensing that Customer Content to Company for the purpose of providing the Services. Company may use and store the Customer Content in accordance with this Agreement and our Privacy Policy available at https://www.superorder.com/privacy-policy.
3.2 Furthermore from time to time, Customers may provide Company with feedback, comments, and suggestions (collectively, “Feedback”) regarding the Services. Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Company, and hereby irrevocably transfers and assigns to Company and agrees to irrevocably assign and transfer to Company all of Customer’s right, title, and interest in and to all Feedback, including all intellectual property rights therein. Customer acknowledges and agrees that in the course of providing the Service, Company may collect, access, use, process, transmit, or store any and all data collected or generated by Customer in connection with the Services, including without limitation, any information related to Company’s platform, network monitoring, how users use the Service, and analysis (“Usage Data”) for: (a) product improvement; (b) research and development purposes; and (c) deriving statistical data. Company shall retain all intellectual property and other rights in such Usage Data.
Customer will provide Company with access to its Delivery and Listing Accounts as an authorized user to enable Company to provide the Services hereunder. In addition, Customer here by irrevocably appoints Company as Customer’s attorney-in-fact, during the Service Period, to manage the Customer’s Delivery and Listing Accounts, including, as applicable, to (i) seek reimbursement of and settle disputes regarding canceled orders, fees and commissions from the applicable Delivery and Listing Accounts, on Customer’s behalf, for amounts and upon terms which Company determines to be reasonable, (ii) provide and retrieve financial accounting reports, (iii) manage and respond to reviews on the Customer’s behalf, (iv) manage the Customer’s store statuses and (v) otherwise effect the Services contemplated by this Agree mentor set forth on the Order Form(s). Customer is solely responsible for: (a) accessing and using the Service in accordance with the Documentation; (b) determining the suitability of the Service for Customer’s business purposes; (c) obtaining any necessary consents required for contacting individuals and/or collection of any personal information, as applicable; (d) configuring the Service appropriately; (e) complying with any laws, regulations, Third Party Services terms and conditions, U.S. Federal Trade Commission (and corresponding state-issued) guidelines, and industry standards (including, without limitation, export control, consumer protection, data protection, and privacy) applicable to Customer Content and Customer’s use of the Service; (f) Customer’s and its users’ access and use of the Service; (g) all activity occurring under Customer’s Service and support accounts, including the rights and privileges Customer grants to users and any activity undertaken or decision made by such administrative users regarding Service delivery; (h) providing all reasonable information and assistance required for Company to deliver the Service or enable Customer’s access and use of the Service; (i) using reasonable means to protect the account information and access credentials (including passwords and devices or information used for multi-factor authentication purposes) used by Customer and its users to access the Service; and (j) promptly notifying Company of any unauthorized account use or other suspected security breach, or unauthorized use, copying, or distribution of the Service or Customer Content.
Company does not review or pre-screen the Customer Content and Company claims no intellectual property rights with respect to the Customer Content. Customer and its users agree not (i) to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from Company, (ii) to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, Company, or any other software or service provided by Company, (iii) to knowingly use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement, and (iv) to knowingly use theService to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs“Worms” or any code of a destructive or malicious nature. Furthermore except for the non-exclusive license granted pursuant to this Agreement, Customer acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with Company.
6.1 Reseller Disclaimer; Fees; Money Back Guarantee. If Customer has ordered the Services through a Reseller or via an online marketplace, the applicable payment terms between Customer and such Reseller or online marketplace shall apply to Order Form(s) hereunder, but all other terms of this Agreement, as between Customer and Superorder, shall govern Customer’s use of the Services. The Reseller or online marketplace is responsible for the accuracy of any such Order Form. Resellers or online marketplaces are not authorized to make any promises or commitments on Company’s behalf, and Company is not bound by any obligations to customers other than what is specified in this Agreement. Customer will pay Company the applicable Service fees set forth in the Order Form(s) in accordance with the terms herein and without offset or deduction. For the first thirty (30) days of this Agreement starting on the Effective Date (the “Money Back Guarantee Period”), Customer may elect to terminate this Agreement by providing written notice to Company during the Money Back Guarantee Period and upon receipt of such notice Company shall terminate Customer’s access and use of the Services and refund Customer any prepaid fees received by Company through the end of the Money Back Guarantee Period. Unless otherwise set forth in an Order Form, (a) fees for Services will be committed for the entire Service Period, billed on an advanced monthly basis; and (b) all amounts to be paid no later than thirty (30) days from the invoice date. All payments not made by Customer when due will be subject to late charges of the lesser of (i) two percent (2%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. Customer shall pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by Company in collecting delinquent fees. If automatic billing using a credit card is elected by the Customer, Company will charge your selected payment method for any fees on the applicable payment date. If Company cannot charge your selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Company will attempt to charge the payment method again as you may update your payment method information. Company reserves the right to: (a) change the fees and to institute new charges and fees at the end of the Service Term or then-current Renewal Term (as defined below), upon prior notice to Customer; and (b) charge any additional fees for any additional features, upgrades, or other benefits not currently offered by Company under this Agreement, and to which Customer has opted in to receive.
6.2 Suspension of Service and Acceleration. If any amount owed by Customer under this Agreement is thirty (30) or more days overdue, Company may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and may suspend Services until all such amounts are paid in full. Company will provide at least ten (10) days’ prior notice that Customer’s account is overdue before suspending Services.
6.3 Service Monitoring. Customer acknowledges that Company may, but does not have the obligation to, monitor the Service to: (a) track usage and service entitlements, (b) provide support, (c) monitor the performance, integrity, and stability of the Service’s infrastructure, (d) prevent or remediate technical issues, and (e) detect and address illegal acts or violations of Section 4 (Customer Obligations) or 5 (Limited Use and Restrictions). Further, Company may rely on open-source models as part of the Service and may use a variety of sources to train aspects of the Services, including but not limited to, all the contents of the internet or other content that may be protected under copyright or other intellectual property laws. Company is not responsible for any violation of copyright or other laws for use of artificial intelligence or large language models, or other technology that maybe used in connection with the Services, and any use of such models included in any product or new features, or functionality of the Service is at the sole and exclusive risk of Customer.
7.1 As used herein, “Confidential Information”means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services, Documentation and other information relating to the Services (including, without limitation, all Feedback) will be deemed Confidential Information of Company. Customer Content will be deemed Confidential Information of Customer. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
7.2 The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in thisAgreement, (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure, or (iii) with respect to Confidential Information of Customer, to the applicable Delivery and Listing Accounts as reasonably required to provide the Services.
7.3 Each party agrees that a breach or threatened breach by such party of any of its obligations under this Section 7 would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Unless otherwise set forth in the Order Form, the term of this Agreement will begin upon the last signature date below and remain in effect until the expiration of the applicable Service Period set forth in the Order Form, and all Renewal Term(s) (as defined below) thereof. Unless otherwise stated in an applicable Order Form, each Service Period shall automatically renew for successive terms equal in duration to the preceding Service Period (each a “Renewal Term”) unless Customer provides written notice to the other party of its election to terminate the Service Period (or Renewal Term, as it may be) at least thirty (30) days prior to the end of the then-current Service Period. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Upon termination of this Agreement, Customer will promptly return to Company, or, at Company’s option, destroy, all tangible items and embodiments containing or consisting of Confidential Information and all copies thereof. Customer acknowledges and agrees that after termination or expiration of this Agreement, Company has no obligation to Customer to retain Customer Content, which may thereafter be permanently deleted by Company. The following provisions survive termination of this Agreement: 3.2 (Feedback; Usage Data), 4 (Customer Obligations), 5 (Limited Use and Restrictions), 7 (Confidentiality), 8 (Term; Termination), 9 (Warranty; Indemnification; Disclaimers), 10 (Limitation of Liability), 13 (Force Majeure), 14(Governing Law; Dispute Resolution), and 15 (Miscellaneous).
9.1 Each party hereby 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 (ii) it has the full right, power, and authority to enter into this Agreement and to perform its obligations under this Agreement.
9.2 Customer represents and warrants on behalf of itself and its Affiliates that: (a) all Customer Content or information provided by, or on behalf of, Customer and/or its Affiliates to the applicable Delivery and Listing Accounts in connection with the Services is true and correct to the best of its knowledge and (b) Customer’s use of, and receipt of Services with respect to, the Delivery and Listing Accounts will comply with applicable law and the Delivery and Listing Accounts’ rules and terms of use.
9.3 Customer will defend, indemnify, and hold Company, its Affiliates, and their respective officers, directors, and employees harmless from and against any cost, loss, or expense suffered or incurred in connection with a third-party claim arising out of or related to (a) Customer’s breach of Section 4 (Customer Obligations) or Section 5 (Limited Use and Restrictions), (b) Customer’s violation of applicable law, (c) Customer Content used by Customer (i) without the required permission(s), consent(s), right(s), or license(s), or (ii) in a manner prohibited or restricted by this Agreement. Customer will not settle any claim subject to this Section without Company’s prior written consent, not to be unreasonably withheld.
9.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND CONFIDENTIAL INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT IT HAS NO EXPECTATION AND HAS RECEIVED NO ASSURANCES THAT IT WILL OBTAIN ANY ANTICIPATED AMOUNT OF PAYMENTS OR REIMBURSEMENTS BY VIRTUE OF THIS AGREEMENT.
9.5 Integrations with Third-Party Services and Service features. The Service may contain features designed to integrate or interoperate with software or Third Party Services offered by Company and/or a third party. Customer acknowledges that while Company will seek to offer and retain such features where commercially reasonable, Company reserves the right to remove or alter any Service features as it deems necessary. In the event such removal of the Third Party Services and/or a feature or functionality of the Service materially diminishes the Services acquired by Customer under an Order Form, Customer may elect to terminate the applicable Services provided under the Order Form for which Company will provide Customer a prorated refund of any prepaid unused fees for the removed Service(s).
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY’S OR ANY OF ITS AFFILIATES’ TOTAL LIABILITY TO CUSTOMER OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Customer and Company are independent contractors in all matters relating to this Agreement, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between Customer and Company.
Company may use Customer’s name, image, trademarks, logos, voice, testimonial and/or other statements on Company’s website and in its marketing materials in connection with the promotion of the Services. Customer agrees to participate in case studies or other forms of publicity reasonably requested by Company. All goodwill and improved reputation generated by Company’s use of the Customer’s name, trademarks and logos inures to the exclusive benefit of Customer.
Except for Customer’s payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, pandemic, epidemic, riot, act of God, export control regulation, laws, judgments, or government instructions.
This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Subject to Section 7.3, any dispute arising out of, relating to or concerning this Agreement will be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in San Francisco, California. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. CUSTOMER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with Customer’s or Company’s claims, and may not otherwise preside over any form of a representative or class proceeding.
This Agreement, including its exhibits, is the complete and exclusive agreement between Company and Customer with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Each Order Form executed by the Parties is governed by this Agreement and is subject thereto. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Customer may not assign or transfer this Agreement, by operation of law or otherwise without Company’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Company may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. Company’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by a duly authorized representative of Company. Unless otherwise expressly provided in this Agreement, no provisions of this Agreement are intended or will be construed to confer upon or give to any person or entity, other than the parties, any rights, remedies or other benefits under orby reason of this Agreement. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
