This terms and conditions are the services agreement between Partner and Appfront. The parties acknowledge receipt and sufficiency of good and valuable consideration and agree on the term below.
1.1 Agreement – means this term and conditions
1.2 Appfront – means Appfront A.I. ltd.
1.3 Partner – means our customer, the entity using the software and/or receiving the offerings
All the services and offering provided by Appfront, including CRM, Marketing, Loyalty Online ordering and mobile App.
2. License; Proprietary Rights
2.2 Intellectual Property Rights. Partner hereby acknowledges and agrees that AppFront owns all right, title and interest, including all copyrights and other intellectual property and proprietary rights, in and to the Licensed Applications and all data transmitted through or collected by the Licensed Applications. Partner shall have the right to disclose such data to Authorized Operators for the purpose of effecting the purpose of this Agreement; provided that Partner shall not disclose, and cause Authorized Operators not to disclose, to their customers or any other third party any such data in any aggregated form whatsoever. Partner shall not (i) copy, reverse engineer, decompile, or disassemble the Licensed Applications or any part of them, (ii) modify, convert, manipulate, divide or revise the Licensed Applications, or any part thereof, (iii) delete or in any manner remove or alter AppFront’s trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices, or (iv) knowingly infringe any proprietary rights or intellectual property rights of Appfront or any third parties, including without limitation copyright, trademarks, designs, patents and trade secrets. A breach of the obligations set forth in this Section 3.2 by Affiliate (or any contravention of the terms of this paragraph by an Authorized Operator) shall constitute a material breach of this Agreement by Affiliate.
2.3 Trademark License. Each party acknowledges that the ownership, right, title and interest
in and to the other party’s trademarks rests with the other party, and both parties agree that neither will do anything inconsistent with such ownership. Each party (“Grantor”) hereby grants to the other party (“Grantee”) a non- exclusive, non-sub licensable, non-transferable right to use the Grantor's trademarks, service marks, logos, trade names, trade dress and URLs (“Trademarks”) for the purposes contemplated hereby (including, without limitation, using Trademarks in connection with marketing the remote ordering services contemplated hereby, using Trademarks as part of sales and marketing materials in written form or otherwise, and displaying Affiliate’s logo or other Trademarks on AppFront’s website); provided, however, that Affiliate may permit Authorized Operators to use AppFront’s Trademarks in the manner specified in this paragraph for the purpose of effecting the purpose of this Agreement (it being understood that any contravention of the terms of this paragraph by Affiliate or Authorized Operators shall be deemed a material breach of this Agreement by Affiliate). Each party shall abide by any Trademark usage guidelines made available by the other party. Neither party shall use the other party’s Trademarks in any way that would disparage or injure the other party’s reputation or in such a manner that would be deemed endorsement or sponsorship of such other party’s products or services.
In consideration of AppFront’s Services and Licensed Applications provided to Affiliate hereunder, Affiliate shall pay AppFront a monthly fee (excluding value added tax), as described in Exhibit A, per restaurant store/location using either the Services or the Licensed Applications. Affiliate shall pay any and all taxes, duties, fees and/or other impositions that may be levied pursuant to applicable law with regard to the provision of the Services and Licensed Applications under this Agreement, including, but not limited to, value added tax and income tax.
4. Confidential Information
During the term of this Agreement and for 3 years after any termination hereof, the parties hereto shall not disclose the financial terms of this Agreement to any third party without the consent of the other party. Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party's Confidential Information from disclosure to a third party. Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party.
5. Limitation of Liability
5.1 LIMITATION OF LIABILITY. (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR CONSEQUENTIAL, INDIRECT, PUNITIVE,
EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, EVEN IF ONE OR BOTH PARTIES KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY AFFILIATE UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
5.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LICENSED APPLICATIONS, AND ANY OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. APPFRONT EXPRESSLY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, APPFRONT MAKES NO WARRANTIES THAT THE LICENSED APPLICATIONS WILL BE ERROR-FREE, ON-TIME, OPERATE WITHOUT INTERRUPTION, OR FULFILL AFFILIATE’S PARTICULAR NEEDS.
6. Term and Termination
6.1 Term – Generally. This Agreement shall remain in force for 2 years from the Effective Date. At the end of that two-year period, this Agreement shall be automatically renewed for successive one-year periods. Notwithstanding the foregoing, this Agreement may be terminated by either party, by providing the other party at least 180 days prior written notice that this Agreement shall terminate. This Agreement may terminate earlier as provided in this Section or as the parties may otherwise agree in writing.
6.2 Termination for Cause; Reasonable Opportunity to Cure Breach. If a party breaches any material provision of this Agreement, the non-breaching party may terminate this Agreement by giving 90 days’ notice to the other party, except that such a termination shall not take effect if the breaching party cures the breach before the end of such 90-day period. Breaches that constitute material breaches shall include, but not be limited to, those breaches specified as being material in Sections 2, 3 and 4.
7.1 Syndication. In order to generate digital ordering transactions through the Licensed Applications for the mutual benefit of the parties, AppFront, in its sole discretion, is permitted to cause Affiliate’s menu (embedded with link(s) to any of the Licensed Applications) to be displayed on any website and/or mobile application operated by a third party.
7.2 Notices. All notices and other communications sent under this Agreement will be in writing
and (i) hand delivered; (ii) transmitted by telecopy; (iii) delivered by prepaid overnight courier; or (iv) transmitted via email. Communications will be sent to the persons at the addresses set forth on the signature page hereof or such other persons/ addresses as the parties subsequently may specify in writing.
7.3 Governing Law. This Agreement will be governed by the laws of New York, without regard to conflict of laws principles. The parties consent to the exclusive jurisdiction and venue of courts in New York in all disputes arising out of, or relating to, this Agreement.
7.4 Relationship of Parties. The parties acknowledge that AppFront is an independent contractor of Affiliate, and AppFront’s employees are not employees of Affiliate. Nothing in this Agreement or any exhibit will be construed as creating a partnership, joint venture, agency or fiduciary relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
7.5 Interpretation. If there is an inconsistency between the terms of this Agreement and the terms of a Statement of Work, the terms of the Statement of Work shall control.
7.6 Waiver. A waiver by either party of any term or condition of this Agreement in one or more instances will not constitute a permanent waiver of the term or condition or any other term or condition of this Agreement or a general waiver.
7.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements between the parties concerning the subject matter hereof.
Last updated - January 1st, 2020