This Agreement is between RESTALUTIONS, LLC, a New Jersey limited liability company (“Restalutions”), and the business identified below (the “Restaurant”), and sets forth the terms and conditions of the arrangement pursuant to which the Restaurant will have use of a system which will allow customers to access information, and place and pay for orders, from mobile devices (the “Mobile Ordering System”).
Restaurant has on the date hereof provided, or shall promptly hereafter provide, Restalutions with the menu, pricing, logos and other content necessary to create a Mobile Ordering System for Restaurant (the “Restaurant Content”). Promptly after receipt of the Restaurant Content, Restalutions shall create, activate and maintain the Mobile Ordering System for Restaurant. Restaurant may provide updated Restaurant Content, from time to time, which Restalutions shall use to update the Mobile Ordering System, within a reasonable time after receipt, at no additional charge to Restaurant. Restaurant hereby grants Restalutions a perpetual, royalty-free, worldwide right and license to use the Restaurant Content on the Mobile Ordering System and represents and warrants that all right, title and interest in the Restaurant Content shall be owned exclusively by Restaurant and will not infringe on the rights of others.
Restaurant has paid Restalutions the initial monthly fee set forth below (the “Monthly Fee”) and any initial set up fee, on the date hereof, and shall pay the Monthly Fee during the Term (as defined below) on the same day of each month hereafter. The initial payment has been made by charge to a credit card designated by Restaurant, and all subsequent payments shall be made by automatic charge to the same credit card, or such other credit card as may be designated by Restaurant. Restaurant agrees that, if Restaurant fails to pay the Monthly Fee on the date due, Restalutions may either suspend Restaurant’s ability to use the Mobile Ordering System until the Monthly Fee is paid or immediately terminate this Agreement as provided below. The Monthly Fee may be adjusted from time to time by Restalutions provided that Restaurant is provided with at least sixty (60) days written advance notice by email. No such adjustment may be made during the first twelve (12) months after the Effective Date (as defined below). If the Term ends on a date other than a monthly anniversary of the Effective Date, for a reason other than a default by Restaurant, Restalutions shall reimburse the Restaurant for the unused portion of the Monthly Fee on a pro rata basis within thirty (30) days after receipt of written request for such reimbursement.
Restaurant shall enter into an agreement with an electronic payment processor (the “Payment Processor”) to facilitate the payments to be made by Restaurant customers pursuant to the Mobile Ordering System, and shall maintain a relationship with such a Payment Processor throughout the Term of this Agreement. The Payment Processor must be able to efficiently handle transactions of the type contemplated by this Agreement and must be approved by Restulations. Restaurant hereby acknowledges that the payments made by Restaurant customers through the Mobile Ordering System shall be handled by Restaurant’s Payment Processor, and shall not in any way be handled by Restalutions, and agrees that any claims or disputes that Restaurant may have with respect to how customer payments are handled shall be directed to the Payment Processor.
This term of this Agreement (the “Term”) shall begin on the effective date indicated below (the “Effective Date”) and shall continue until terminated pursuant to the Agreement. Either party may terminate this Agreement upon at least thirty (30) day advance written notice to the other. In addition, Restalutions may terminate this Agreement (i) immediately upon written notice to Restaurant if the Monthly Fee is not paid on the date due, (ii) immediately upon written notice to Restaurant if there is an allegation that the Restaurant Content infringes on the rights of others, and/or (iii) immediately upon written notice to Restaurant upon the filing by or against the Restaurant of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation, conservatorship or similar proceeding. The termination of this Agreement shall not release the Restaurant from its obligation to pay Monthly Fees that have accrued prior to the effective date of the termination.
Restaurant represents and warrants to Restalutions that (i) Restaurant has the right, power and authority to enter into, execute and deliver this Agreement and to perform all duties and obligations hereunder, (ii) this Agreement is a valid obligation of Restaurant and is binding upon Purchaser in accordance with the terms hereof, and (iii) neither the execution nor the delivery of this Agreement, nor the performance by Restaurant hereunder, conflict with or will result in the breach of any of the terms, conditions or provisions of any agreement to which Restaurant is a party.
All notices provided for hereunder must be in writing, and shall be deemed to have been properly given: (i) on the day of delivery, if delivered by hand or courier service, (ii) if mailed or sent by national overnight delivery service (e.g., FedEx), on the date of receipt or rejection as evidenced by the green receipt or bill of lading, as the case may be, addressed to such party by registered or certified mail, postage prepaid, return receipt requested, at the addresses first set forth above, or (iii) as otherwise expressly provided in this Agreement.
In the event that Restaurant believes that Restalutions has failed to fulfill any of its obligations hereunder, Restaurant may terminate by providing Restalutions with the advance written notice of termination as provided for above. Restalutions shall have no liability whatsoever for lost profits or for any other consequential damages or incidental damages arising out of or by reason of anything which Restalutions does or fails to do pursuant to this Agreement or otherwise irrespective of any negligence, and any claim for direct damages that Restaurant may pursue shall be limited to liquidated damages in the amount of the Monthly Fees that Restaurant has actually paid during the thirty (30) day period immediately prior to the effective date of termination.
RESTALUTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO MOBILE ORDERING SYSTEM INCLUDING, WITHOUT LIMITATION, IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. If Restaurant is not satisfied with the Mobile Ordering System, Restaurant may terminate by providing Restalutions with the advance written notice of termination as provided for above.
This Agreement shall be construed and enforced in accordance with and shall be governed by the laws of the State of New Jersey, without regard to its principles of conflict of laws, and without the aid of any canon, custom or rule of law requiring construction against the draftsman. Each party irrevocably submits itself to the jurisdiction of the state courts of the State of New Jersey located in Union County, and irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined only in and by any of said courts
If any clause or provision of this Agreement shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, the same shall be deemed to be severable and shall not affect the validity of any other clause or provision herein, but such other clauses or provisions shall remain in full force and effect.
This Agreement represents the final and complete agreement and understanding (both oral and written) of the parties relating to the subject matter hereof. Any and all previous agreements and understandings between the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.
Except as specifically provided with respect to adjustments to the Monthly Fee which may be made upon notice to the Restaurant, this Agreement may be amended or supplemented only by an agreement in writing making specific reference to this Agreement and executed by each of the parties hereto.
This Agreement and the rights of Restaurant hereunder may not be assigned, and the obligations of Restaurant hereunder may not be delegated, in whole or in part, by Restaurant without the prior written consent of Restalutions.
This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns.
In performing their obligations hereunder, the parties shall at all times be independent contractors. Nothing herein shall be construed or implied to create a relationship of principal and agent between the parties, and no party shall make any commitment, take any action, or incur any expense in the name of, or purporting to bind, the other party. Nothing in this Agreement shall be deemed to create a partnership, joint venture or fiduciary relationship between the parties.
Restaurant acknowledges that the terms and conditions of this Agreement are of a confidential nature and agrees not to disclose such terms and conditions to others except Restaurant’s accountants, attorneys, and consultants, and or as required by law.
This Agreement may be executed in any number of counterparts and by facsimile or PDF each of which shall be deemed to be an original and all of which, taken together, shall constitute collectively one Agreement.