Bite Ninja U.S. Customer Terms and Conditions
BY (1) CLICKING A BOX INDICATING Customer’S ACCEPTANCE OF THESE TERMS, OR (2) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, Customer HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “Customer” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT SHALL GOVERN ANY CLAIMS THAT THE PARTIES MAY HAVE AGAINST EACH OTHER, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.
2.1 Items and Services.
Bite Ninja and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) from Customer to Customers (as defined below), including on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (the “Services”).
The definition of Items shall include Alcohol Items as applicable and referenced within the Agreement. If any conflict between these Terms and the Alcohol Terms, the Alcohol Terms shall govern with respect to Alcoholic Items and these Terms shall govern with respect to Items.
2.2 Additional Tools.
In connection with the Services, Bite Ninja and its affiliates may also make available to Customer a website, mobile application or other technology interface for Customer to access and use the Services (collectively, the “Tools”), which may include Bite Ninja’s and its affiliates’ proprietary technology platform, through which Customer may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Customer’s performance and history using the Services.
The Tools may include functionality for Customer to obtain Sponsored Listing placements. Such Sponsored Listings are governed by the terms located here.
2.3 The Application(s).
Bite Ninja and its affiliates may also make available to Customers its proprietary technology that enables Order-Taking People to work for the Customer and take orders through the Drive-Thru, Front Counter, and Table Service Models (the “App(s)”). Order-Taking People are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.
2.4 Sales Channels.
Customer may request access to various services provided by Bite Ninja: Drive-Thru, Front Counter, and Table Service (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Customer agrees to accept any relevant Sales Channel Addenda as follows:
i) Drive-Thru (ALSO REFERRED TO AS MARKETPLACE): Customer may sell Items through the “Drive-Thru Sales Channel,” whereby Customer’s Items are presented in the App(s) to Customers who access and request on-demand Hardware or Staffing services provided by Order-Taking People as defined herein.
ii) Front Counter: Customer may sell Items through the “Front Counter Sales Channel,” whereby Customer’s Items are presented on the App(s) to Customers for Front Counter at Customer’s Location (i.e., without the use of a Hardware or Staffing Person). For the avoidance of doubt, the provisions relating to Order-Taking People in the Terms will not apply to the sale of Items through this Front Counter Sales Channel.
iii) Customer Table Service: Customer may sell Items through the “Customer Table Service Channel,” whereby Customer’s Items are presented on the App(s) to Customers who access and request on-demand Hardware or Staffing services provided by Customer Table Service Staff (i.e., employees, contractors, workers or agents of Customer who provide Hardware or Staffing services on Customer’s behalf, arranged independently of Bite Ninja). Additional Customer Table Service Sales Channel Addendum terms apply.
3. Bite Ninja OBLIGATIONS.
3.1 Access to Services.
Subject to the terms and conditions of this Agreement, Bite Ninja and its affiliates may make available the applicable Services to Customer, solely for use by Customer at locations that are owned and operated by Customer (each, a “Location”). Customer shall provide Bite Ninja current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Customer, Bite Ninja and its affiliates, on behalf of Customer, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Customer via the App(s). In addition, Bite Ninja may make available certain Tools to Customer, and Customer may access and use those Tools solely in connection with Customer’s use of the Services. For the avoidance of doubt, as between Customer and Bite Ninja, Bite Ninja will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).
3.2 Technology, Not Hardware or Staffing Agency, Services.
Customer agrees neither Bite Ninja nor its affiliates provide any Hardware or Staffing services. Rather, Bite Ninja provides technology services that both (i) enable Customer to connect with Customers who may purchase Items from Customer and (ii) enable Order-Taking People to seek, receive and fulfill on-demand requests for Order-Taking services by or on behalf of Customers seeking Order-Taking services. “Order-Taking Persons” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for Order Taking services using Bite Ninja’s proprietary technology under license from Bite Ninja or its affiliates.
4. Customer OBLIGATIONS.
4.1 Availability of Items.
Customer will make shifts available for bidding through the App(s) (“Available Items”) during its normal business hours and ensure the Available shifts menu is accurate. Customer will act in accordance with applicable laws and regulations. Bite Ninja may, in its sole discretion, remove illegal shifts from the App(s).
4.2 Shift Responsibility.
Customer shall be responsible for any reimbursement costs related to Customer refunds for Customer System Problems or other related issues within Customer’s control (including any costs associated with troubleshooting solutions for Customer’s Technology, Management, or Hardware Issues(s), if applicable)). Bite Ninja may, in its sole discretion, include reimbursement costs in the payment Bite Ninja drafts from Customer in accordance with this Section 4.
If Bite Ninja supplies a tablet or other mobile device (“Device”) to Customer to use in connection with the availability of Items via the App(s), Customer agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the App(s), and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Bite Ninja and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Customer’s location(s) from the App(s) for longer than forty-five (45) days, Customer will return all applicable Device(s) to Bite Ninja within ten (10) days. If Customer receives a wireless data plan for the Device, Bite Ninja may charge a weekly reimbursement to Customer for the costs associated with the wireless data plan of each applicable Device. Customer agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee (“Damage Fee”). Customer agrees that Bite Ninja may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Customer.
4.4 Third Party Services.
If Customer uses a third-party service to: 1) access the Services and Tools; or 2) transmit information to Bite Ninja (a “Third Party Access Service”), Customer agrees that Customer’s obligations described herein shall apply to Customer’s use of the Services and Tools via any Third Party Access Service unless otherwise agreed to between Bite Ninja and Customer. Customer agrees that failure by a Third Party Access Service to transmit accurate information such as Retail Price, Item descriptions, or Additional Information (as defined herein) to Bite Ninja shall not waive, suspend, or otherwise affect Customer’s obligations described herein. Customer remains solely responsible for the accuracy of information provided to Bite Ninja through any Third Party Access Service. Additionally, ongoing access to the Services and Tools via any Third Party Access Services is subject to Bite Ninja’s agreement with such Third Party.
4.5 Use Restrictions.
In connection with the access to and use of the Services and Tools, Customer will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tools or Services (except as otherwise authorized by Bite Ninja); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Customer will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the App(s) (collectively, “Bite Ninja, Inc. Data”) to directly or indirectly compete with Bite Ninja or its affiliates or the Services, including, without limitation, Bite Ninja, Inc. Data that Customer receives from Bite Ninja by way of a Third Party Access Service.
4.6 Shift Restrictions.
Bite Ninja may restrict the access to shifts via the App(s) based on the appropriate manner in which the shifts are fulfilled.
For the sale of Items via the Front Counter and Customer Table Service Sales Channels, unless otherwise selected by Customer, Customer agrees to allow Customers to provide gratuities through the App(s). Bite Ninja shall remit to Customer the full value of any gratuities provided by Customers. It is Customer’s sole responsibility to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.
4.8 Messaging and Contact Information.
Customer agrees to receive calls, SMS messages and other communications, including those made available by autodialer or using an artificial or pre-recorded voice, sent by or on behalf of Bite Ninja or its affiliates.
5. FEES AND TAXES.
Bite Ninja will deduct applicable fees (“Fees”) on a daily basis in the amount of a predetermined fee for service based on the number and length of shifts scheduled for that day.
If required by applicable law or regulation, Bite Ninja may adjust the Fee. Such adjustments may require adjustments to received fees. Bite Ninja reserves the right to suspend Customer’s ability to make shifts available for bidding by Order-Taking People through the App(s) if Customer’s account is in arrears. If you received a shift, you are responsible for the Fee even if the Order-Taking Person is unable to complete the Order-Taking for that shift, if the problem is within the Customer’s control. Except as expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement. All Fees under this Agreement will be paid in U.S. Dollars.
5.2 Services Fee.
Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:
i) Drive-Thru SALES CHANNEL (ALSO REFERRED TO AS MARKETPLACE SALES CHANNEL): Bite Ninja will charge Customer a fee of $28 per hour for each shift worked via the App(s) through the Drive-Thru Sales Channel;
ii) Front Counter SALES CHANNEL: Bite Ninja will charge Customer a fee of $28 per hour for each shift worked via the App(s) through the Front Counter Sales Channel;
Bite Ninja will provide at least seven (7) days notice to Customer in the event the Front Counter Sales Channel fee percentage is increased.
iii) Customer Table Service SALES CHANNEL: Bite Ninja will charge Customer a fee percentage of 15% for each Item sold via the App(s) through the Customer Table Service Sales Channel.
5.3 Order Processing Fee.
For the use of certain Services related to order processing and related expenses as identified by Bite Ninja, Bite Ninja may charge Customer a Fee (the “Order Processing Fee”).
5.4 Hardware or Network Fee.
If selected by Customer, Bite Ninja shall charge Customer a flat fee per order for connecting Customers to appropriate Hardware and Networks (the “Hardware or Network Fee”). The Hardware or Network Fee shall be in addition to the Services Fee(s) as applicable.
5.5 Activation Fee.
Unless otherwise agreed to by the Parties, in consideration of Bite Ninja’s work to activate Customer on the App(s), Customer will pay to Bite Ninja a Fee of $350.00 ("Activation Fee"). Customer agrees that Bite Ninja may deduct the Activation Fee from Customer's Shift Payments.
You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.
Customer’s use of the Tools, including any communications with Bite Ninja, in no way constitutes the provision of legal or tax advice.
Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require Bite Ninja to collect and remit Sales Taxes directly to the taxing authority.
Customer agrees that you will not make a Food Item available under this Agreement at a price higher than the amount Customer is charging for similar Items through any comparable platform for food order services.
5.8 Appointment of Limited Payment Collection Agent.
Customer is solely responsible for providing Bite Ninja with, and maintaining, accurate bank account information. Bite Ninja and its affiliates reserve the right to collect any amounts in connection with shift adjustments via debiting the payment method or Customer’s bank account on record, or otherwise seeking reimbursement from Customer by any lawful collection methods available. Customer authorizes Bite Ninja and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. By agreeing to these terms, Customer gives Bite Ninja and its affiliates express consent to adjust payments collected on Customer’s behalf as set forth in this Section. Further, Customer agrees that payment collected on its behalf by Bite Ninja or its affiliates will be considered the same as payment made directly to Customer. Customer agrees that if Customer does not receive payment from Bite Ninja or its affiliates, Customer’s only recourse will be against Poriter and its affiliates.
5.9 Payment Compliance.
5.10 Additional Information.
Bite Ninja may, from time to time, require Customer to provide certain additional information (“Additional Information”) pertaining to, Customer location, Customer establishment type (e.g., restaurant vs. grocery), particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), whether the item is “ready-to-eat”, or intended use. Customer is solely responsible for providing requested Additional Information to Bite Ninja in a timely manner. If Customer fails to timely provide Additional Information in response to notification and request by Bite Ninja, Bite Ninja expressly reserves the right to temporarily remove affected Items from Customer’s menu on the App(s) until such Additional Information is received.
Bite Ninja may provide Customer aggregate information regarding the number of Items ordered by Order-Taking People and sold by Customer to Customers pursuant to an Agreement. To the extent applicable, Customer agrees that Bite Ninja may share Customer’s transactional data regarding ordered meals, including sales data, with Bite Ninja affiliates.
7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of Bite Ninja, to its affiliates) a limited, royalty-free, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, in connection with the activities related to this Agreement or any other activities relating to the Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Customer’s Marks by Bite Ninja or its affiliates in connection with making Items available through the App(s) in the ordinary course of business will not require any such prior, express, written consent. Customer further agrees that any use or display of Bite Ninja’s Marks will conform to the current version of Bite Ninja, Inc’s Brand Guidelines. All goodwill related to the use of a party’s Marks by the other party will endure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Customer represents and warrants that Customer’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Customer agrees that Bite Ninja or its affiliates may remove Customer’s Marks from theApp(s) if Bite Ninja or its affiliates receive notice or otherwise reasonably believe that such Customer’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
7.2 No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate agreement between Bite Ninja, Inc. and Customer prior to the commencement of any such activities.
Bite Ninja and its affiliates may showcase the availability of Customer’s shifts via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Bite Ninja (or a party designated by Bite Ninja acting on Bite Ninja’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Customer agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Bite Ninja or its affiliates. Additionally, Customer may provide videos, still image or other materials to Bite Ninja or its affiliates (“Customer Marketing Materials”) for use in connection with the display of Customer’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Customer hereby grants Bite Ninja and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Customer Marketing Materials in connection with Customer’s Items and other promotional activities relating to the Services. Bite Ninja agrees that the Customer Marketing Materials shall remain Customer’s sole and exclusive property. Without limiting anything in the Agreement, Customer represents and warrants that the Customer Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Customer Marketing Materials contain any third party materials, Customer is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Bite Ninja to be able to use the Customer Marketing Materials in accordance with this Section. Customer agrees that Bite Ninja or its affiliates may remove Customer Marketing Materials from the App(s) if Bite Ninja or its affiliates receive notice or otherwise reasonably believe that such Customer Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
“Promotion(s)” means offers that are available through the App(s) to stimulate Customer and Order-Taking People demand. Subject to App(s) functionality, Bite Ninja may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.
i) Customer Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Bite Ninja may make available from time to time, Customer may create Promotions that are designed and fulfilled by Customer (“Customer Promotion(s)”). Unless otherwise specified by Bite Ninja, Customer will be solely responsible for defining each Customer Promotion (within the scope of functionality provided by Bite Ninja) either through the use of the Promotion Tool or through the Promotion Schedule (as defined below).
1) Bite Ninja authorizes Customer to use Bite Ninja’s proprietary, automated, self-service tool located within the Tools to create Promotions (“Promotion Tool”). If provided access to the Promotion Tool, Customer agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
2) Customer may create a Customer Promotion by completing and providing Bite Ninja with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Bite Ninja by Customer, Customer will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Bite Ninja under the terms of this Agreement. To request a form Promotion Schedule, Customer should contact its customer support representative.
ii) Co-Funded Promotion(s). From time to time, Bite Ninja may agree to fund a portion of Customer’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree on a written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Customer is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Customer Promotion, and Bite Ninja shall issue an adjustment to Customer’s Item Revenue to account for the amount of the Promotion that Bite Ninja has agreed to fund.
iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule:
1) Customer’s Obligations. Customer will: (A) fulfill the terms of Promotions offered by Customer (solely or jointly with Bite Ninja) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount Customer has agreed to fund for such Promotion; and (C) upon reasonable request, supply Bite Ninja with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Bite Ninja may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Customer will not be able to terminate the Agreement while a Promotion is live.
2) Bite Ninja’s Obligations. Bite Ninja will (A) honor and fulfill the terms of Promotions offered by Bite Ninja (solely or jointly with Customer) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount Bite Ninja has agreed to fund such Promotion; (C) upon reasonable request, supply Customer with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Customer shall use to market such Promotion, provided that a Promotion Schedule authorizes Customer to market such Promotion out of the App(s); and (D) use good faith efforts to provide Customer with reasonable information regarding Promotions, which may include, without limitation, the amount Customer spent on Promotions and the number of Items sold in connection with Promotions.
iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Customer Promotion or Co-Funded Promotion to an order through the App(s), Fee shall be calculated based on the total Retail Value of the order minus the Customer-funded portion of such Promotion applied to that order. For the sake of illustrative purposes, if Customer and Bite Ninja each fund $1 of a $2 off Promotion (so the Co-Funded Promotion is funded 50% by each party) on a $10 pre-Promotion order total, the Fee shall be calculated on the post-Promotion amount of $9.
v) Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Customer may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Customer to market a Promotion out of the App(s), all such marketing materials will be subject to Bite Ninja’s prior review and written approval, which shall not be unreasonably withheld.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, Customer will allow Bite Ninja limited use of information for promotion through a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise.
8. PROPRIETARY INFORMATION; FEEDBACK.
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Customer’s Items to Customers through the App(s) and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Customer hereby authorizes Bite Ninja and its Affiliates to disclose the terms of this Agreement to Customer’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Customer is responsible for maintaining the integrity of information related to Customer’s access and use of the Tools and Services, including any password, login or key information. Customer represents and warrants that Customer will not share such information with any third party.
8.3 Data Re-Identification Restriction.
Without limiting any other provision of this Agreement, including any provision in this Section 8, Customer will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Customer may, but is not obligated to, provide or otherwise make available to Bite Ninja or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Bite Ninja’s and its affiliate’s products and services (“Feedback”). However, to the extent that Customer provides or otherwise makes available Feedback to Bite Ninja or its affiliates, Customer hereby grants to Bite Ninja and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
Customer acknowledges and agrees that, after receiving worked Shifts(s), a Customer may be prompted by the App(s) to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Customer and the relevant Shift(s) on the App(s) (“Customer Feedback”). Bite Ninja and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Bite Ninja and its affiliates without attribution to or approval of Customer. Customer acknowledges that Bite Ninja and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Bite Ninja and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal data, violate any privacy or other applicable laws, or Bite Ninja’s or its affiliates’ content policies.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
10.1 Representations and Warranties.
Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Customer, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Customer further represents and warrants that to the extent Customer has franchisees who participate in any activities under this Agreement, Customer will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF Customer ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11.1 Indemnified Claims.
Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
12. LIMITS OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF Customer OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In addition, Bite Ninja agrees to maintain Commercial Automobile Liability insurance with limits of One Million Dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
14. SUPPLEMENTAL TERMS.
15. TERM AND TERMINATION.
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Bite Ninja may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Customer that, in Bite Ninja’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual Hardware or Staffing, if Hardware or Staffing is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Bite Ninja should be provided to Bite Ninja, LLC, Attn: Legal, 2851 Stage Village Cove, STE 22, Bartlett, TN 38134, with a copy to Bite Ninja, Inc.,142 South College St, Mountain Home, AR 72653. Notices to Customer should be provided to the address provided by Customer. The parties agree that all legal documents (including complaints and subpoenas) directed to Bite Ninja will be served on Bite Ninja’s registered agent for service of process. The name and current contact information for the registered agent in each state are available online at https://ct.wolterskluwer.com/sop-locations.
17. DISPUTE RESOLUTION AND ARBITRATION.
Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, scope, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:
i) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.
iii) The seat, or legal place, of arbitration will be Memphis, TN, USA or the JAMS location closest to the complaining party’s place of business.
iv) The language to be used in the arbitral proceedings will be English.
v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.
vi) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
vii) The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
viii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else. Notwithstanding any other provision of this Arbitration Provision or the JAMS Rules, disputes in court or arbitration regarding the validity, enforceability, conscionability or breach of this Class Action Waiver, or whether this Class Action Waiver is void or voidable, may be resolved only by the court and not by an arbitrator. In any
case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial
determination that all or part of this Class Action Waiver is unenforceable, the class or collective
action to that extent must be litigated in a civil court of competent jurisdiction, but the portion
of this Class Action Waiver that is enforceable shall be enforced in arbitration.
ix) Arbitrator fees and expenses plus any expenses of JAMS shall be split equally between the parties. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
x) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
17.2 Waiver of Jury Trial.
Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.
18. DIVERSITY AND INCLUSION.
Customer will not, in its use of the Bite Ninja Services or the Bite Ninja, Inc. Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Bite Ninja and Customer. Customer acknowledges and agrees that upon Bite Ninja’s receipt of evidence of Customer’s discrimination under any of these categories, Bite Ninja will have the right to immediately terminate this Agreement following notice to Customer.
19. ADDITIONAL TERMS.
The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Customer, Customer explicitly consents that any such transferee will have access to and control of all Customer accounts related to such transfer, including its accounts with Bite Ninja, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Customer’s Location(s), the parties will need to execute a Change of Ownership form and Customer acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.