Updated March 19, 2021
IF MERCHANT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, MERCHANT MAYNOT USE, AND/OR SHALL CEASE USING, ANY FAMILYMEAL SERVICES OR SOFTWARE.CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THEIR MEANING SETFORTH IN THE MERCHANT AGREEMENT ACKNOWLEDGEMENT AND ORDER FORM.
Merchant and FamilyMeal hereby agree as follows:
“Applicable Law and Rules” means all federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Merchant and/or Merchant’s business.
“Chargeback” means a transaction that is reversed or charged back to Merchant’s Bank Account if the transaction: (a) is disputed; (b) is reversed for any reason by one or more Payment Network(s), FamilyMeal’s payment processing partner, a Customer, or FamilyMeal’s financial institution; (c) wa snot authorized; or (d) is unlawful, suspicious or in violation of the terms or conditions of the Agreement.
“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and(ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party or ally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audio visual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.
“Customers” refers to Merchant’s customers or guests.
“Customer Data” means data and information, which may include Personal Information (as defined below), collected by FamilyMeal via the Services, such as when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt. Customer Data may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) credit card information; (iv) Customer purchase history; and (v) location information.
“Effective Date” means the date listed on an Order Form.
“Employees” means Merchant’s employees, agents and contractors who are authorized to use the Services.
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services and Software.
“Fees” means any fees outlined in an Order.
“Go-Live Date” means the actual date upon which Merchant begins using the Services and is capable of processing credit card payments in a live production environment (if applicable).
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
“Merchant” means the contracting entity listed on the applicable Merchant Agreement Acknowledgement and Order form.
“Merchant Bank Account” means the bank account designated by Merchant on the Order for the facilitation of transactions and payment of Fees hereunder.
“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Software and Services and/or collected by FamilyMeal, including without limitation Merchant’s name, address, contact information, products, logos, promotional information, transaction details and other information or material submitted by Merchant to FamilyMeal through the Services, excluding Customer Data. Merchant data may include Personal Information, whether from Merchant’s Employees, existing customer information or otherwise.
“Net Sales Proceeds” means funds remitted by FamilyMeal to Merchant resulting from Customer payments, less all applicable Fees due and owing relative to the applicable transaction.
“Order” or “Order Form” means any FamilyMeal ordering document (including any online order) specifying the Fees for Family Services and Software purchased and/or licensed hereunder, as mutually agreed to and accepted by FamilyMeal.
“Payment Network” means American Express Travel Related Services Company, Inc. (“American Express”), DFS Services, LLC (“Discover”), MasterCard International Inc. (“MasterCard”), Visa Inc. (“Visa”), and/or any other payment networks that FamilyMeal may utilize in its sole discretion.
“Personal Information” means any information that relates to an identified or identifiable individual. Depending on the applicable data privacy and security laws, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses and location-based information.
“Representatives” means a party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), and contractors.
“Security Incident” means any accidental or unlawful destruction, loss, alteration, theft, unauthorized disclosure of, or access to, Personal Information.
“Services” means FamilyMeal’s websites, Software, the FamilyMeal Platform, FamilyMeal Apps, supported integrations with third parties, customer support, and the payment processing services or any other current or future services offered by FamilyMeal.
“Software” means FamilyMeal’s online ordering application made available to Merchant via the FamilyMeal Platform, including online, products, services, features, content, and updates related thereto.
“Taxes” means taxes, levies, or duties imposed by taxing authorities.
“FamilyMeal Account” means Merchant’s account with FamilyMeal.
“FamilyMeal Platform” means FamilyMeal’s online Software that enables Employees and Customers to interface with, access and use the Services.
“Restaurant Lead Gen” means Customer payments sourced from the Merchant’s unique lead generation URL.
“FamilyMeal Lead Gen” means Customer payments sourced from FamilyMeal’s unique lead generation URL.
The Agreement applies to and governs Merchant’s access to and use of the Services by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to manage orders and process Customer payments; (b) FamilyMeal’s processing of payments and remitting payment of Net Sales Proceeds to Merchant’s Bank Account; (c) providing Merchant with certain reporting on its sales and activities; and (d) working with Merchant with respect to any Customer inquiries related to payments or placing orders, in each case under Merchant’s FamilyMeal Account.
Right to Use the Services.
2.1. Merchant is (a) solely responsible for maintaining the security and control of its software and username(s) and access passwords to its FamilyMeal Account; and (b) fully liable for all activity of its Employees and Customers that occur under its FamilyMeal Account, whether authorized by Merchant or not. Merchant agrees to immediately notify FamilyMeal if it becomes aware of any unauthorized activity under its FamilyMeal Account and will cooperate with FamilyMeal to prevent any further unauthorized activity.
2.2. As part of the Services, FamilyMeal may provide access to the FamilyMeal Platform. When Employees use the FamilyMeal Platform, Merchant must ensure its Employees agree to and comply with, the terms of the Agreement, which protects FamilyMeal’s rights in the Services and allows use of the applicable FamilyMeal Platform only for the purposes of Merchant and its Employees accessing and using the Services in accordance with this Section 2 and Section 3 below.
2.3. As part of the Services, FamilyMeal may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant’s use of the Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to FamilyMeal, FamilyMeal is authorized to contact Merchant or Employees, including without limitation at that number or email address using prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant.
3.1. Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with FamilyMeal’s provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the FamilyMeal Platform or other aspects of the Services); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the FamilyMeal Platform or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or FamilyMeal’s network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the FamilyMeal Platform.
3.2. Merchant represents, warrants and covenants that: (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant to a Customer; (b) any sales transactions submitted by Merchant will accurately describe the goods and/or services sold and delivered to a Customer; (c) Merchant will fulfill all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (d) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Software and Merchant’s obligations under this Agreement; (e) Merchant’s use of the Services will be in compliance with this Agreement; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, and Merchant’s obligations under this Agreement.
3.3. Merchant will use the Services only for its management and operation of its own business, and not for any business, services or offerings of third-parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Services to handle, process or transmit funds for any third party.
3.4. FamilyMeal will review the information that Merchant submits, in connection with Merchant’s request to sign up for the Services, and FamilyMeal will forward such information on to its payment provider(s). Merchant hereby agrees that FamilyMeal may share information about Merchant and Merchant’s Bank Account with its payment provider(s) for the purpose of providing the Services to Merchant. Once Merchant submits its Order, FamilyMeal or its payment provider(s) may conclude that Merchant is not permitted to use the Services, in which case FamilyMeal may decide in its sole discretion to refrain from entering into the Agreement with Merchant, or if the Agreement has already been formed, may immediately terminate the Agreement.
3.5. Merchant will provide information requested by FamilyMeal, in connection with Merchant’s Order or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules), including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also provide FamilyMeal with access to inspect Merchant’s business location(s) upon request.
3.6. FamilyMeal may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. FamilyMeal will not be liable for any such interruptions, delays, errors or bugs. FamilyMeal may contact Merchant in order to assist FamilyMeal with the Services and obtain information needed to identify and fix any errors.
3.7. Merchant will comply with the following requirements in connection with its use of the Services: (i) with respect to each Customer who requests the delivery of transaction receipts via text message or email, such Customer must individually enter his or her Customer Data in the appropriate space displayed on the applicable device; and (ii) Merchant and/or Employees are NOT permitted to add or modify any Customer Data (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer.
3.8. FamilyMeal may at any time delete or change any information or imagery the Merchant posts on the FamilyMeal Platform. FamilyMeal agrees to make reasonable efforts to communicate the reasoning for any deleted or changed information within 24 hours of any such change.
Ownership: Merchant Data, Customer Data & Trademarks.
4.1. As between the parties, FamilyMeal owns or has license to all right, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Services (including the Software, the FamilyMeal Platform, and all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services thereof or deriving therefrom, whether developed by or on behalf of FamilyMeal) provided under the Agreement, all of which shall and is expressly intended to remain vested in FamilyMeal. Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to FamilyMeal Concepts Inc., and acknowledges that FamilyMeal is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in FamilyMeal’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by FamilyMeal.
4.2. Merchant owns all Merchant Data. Merchant hereby grants to FamilyMeal a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services. Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Law and Rules) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by FamilyMeal in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Section.
4.4. Notwithstanding anything to the contrary in the Agreement, FamilyMeal may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of your users or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across FamilyMeal, our Merchant customers and partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Services, the development of new Services or otherwise. Upon creation, as between Merchant and FamilyMeal, FamilyMeal shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.
4.5. Merchant hereby grants FamilyMeal a nonexclusive, royalty free right and license to use and display Merchant’s trademarks and/or service marks (“Merchant Marks”) on its website and marketing collateral, or to otherwise identify Merchant as a customer of FamilyMeal. FamilyMeal obtains no rights in the Merchant Marks except for the limited right described in this sub-Section 5.5., and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by FamilyMeal will inure to Merchant.
4.6. Merchant agrees and acknowledges that any use or display by Merchant of a trademark or other mark owned by the Payment Network(s) shall comply with the rules and regulations issued by such Payment Network and shall cease use of and remove all such trademark(s) from display upon termination of this Agreement.
Billing and Payment.
5.1. Merchant will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable. Merchant will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
Lead Generation Fees are debited at the time of Customer checkout. Fees are determined based on the unique source URL in which the Customer arrives at the checkout page. Both the Merchant and FamilyMeal are able to distribute and market their respective Lead Gen URL’s on their respective property or any third-party locations at will. Locations may include but are not limited to social accounts, media publications, websites and print materials.
FamilyMeal is not obligated to, nor will FamilyMeal determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Merchant is solely responsible for payment of, and Merchant agrees to pay, all applicable Taxes regardless of whether such Tax amounts are listed on an Order.
If in a given calendar year Merchant receives (a) more than $20,000 in net Card Payments and (b) more than 200 Payments, FamilyMeal may report annually to the Internal Revenue Service as required by Applicable Law and Rules, Merchant’s name, address, Tax Identification Number (such as a Social Security Number (SSN), or Employer Identification Number (EIN)), the total dollar amount of the Payments Merchant receives in a calendar year, and the total dollar amount of the Payments Merchant receives for each month in the applicable calendar year. Such criteria and thresholds noted above may vary, depending on applicable state law. Merchant further acknowledges and agrees that FamilyMeal may take action in accordance with Applicable Law and Rules, including initiating backup withholding, when appropriate.
6.1. Merchant acknowledges that as a condition of entering into the Agreement, Merchant agrees to utilize FamilyMeal’s payment processing partners as its exclusive provider of payment processing services. Merchant hereby authorizes FamilyMeal (including FamilyMeal’s bank partners and/or payment provider(s), as applicable), as its agent, to hold, receive and disburse funds (or cause funds to be held, received, and disbursed) on its behalf and to access the Merchant Bank Account (as defined in the Order) to effectuate payment to FamilyMeal of any Fees, and for Merchant to receive any Net Sales Proceeds. Merchant’s authorization permits FamilyMeal to generate a paper draft or an electronic funds transfer to process each payment transaction that Merchant authorizes.
6.2. Once the Merchant Bank Account information is verified, FamilyMeal will automatically deposit the Net Sales Proceeds collected to the Merchant Bank Account via direct deposit. This deposit will appear in the Merchant Bank Account within a normal timeframe dictated by FamilyMeal’s payment processing partners.
6.3. If Merchant has not provided goods or services consistent with the Agreement and these payment processing terms with respect to a particular transaction(s), FamilyMeal will have the right to refuse to pay any Net Sales Proceeds to Merchant and/or to pay a refund to any Customer from the Merchant Bank Account. FamilyMeal reserves the right to adjust the Net Sales Proceeds due for any period to compensate FamilyMeal for any Chargebacks, calculation errors, Merchant employee fraudulent use, and any refunds paid to Customers, whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim FamilyMeal may have arising hereunder.
6.4. If FamilyMeal needs to conduct an investigation or resolve any pending dispute related to Merchant’s Bank Account, FamilyMeal may defer payout or restrict access to Merchant’s funds for the entire time it takes for FamilyMeal to complete its investigation or resolve the dispute. FamilyMeal also may defer payout or restrict access to Merchant funds as required by Applicable Law or Rules or court order, or if otherwise requested by law enforcement or government entity. Additionally, Merchant will assist FamilyMeal when requested, at Merchant’s expense, to investigate any of Merchant’s transactions processed through the Services. Merchant permits FamilyMeal to share information about a Chargeback with Customer, Customer’s financial institution and Merchant’s financial institution in order to investigate and/or mediate a Chargeback. FamilyMeal will request necessary information from Merchant to contest the Chargeback. If a Chargeback dispute is not resolved in Merchant’s favor by the credit card network or issuing bank or Merchant chooses not to contest the Chargeback, FamilyMeal may recover the Chargeback amount and any associated fees as described in the Order or this Merchant Agreement Terms and Conditions. Merchant acknowledges that its failure to assist FamilyMeal in a timely manner when investigating a transaction, including providing necessary documentation within the time period specified in FamilyMeal’s request, may result in an irreversible Chargeback. FamilyMeal will charge a fee for mediating and/or investigating Chargeback disputes. Additionally, FamilyMeal may decide not to authorize or settle any transaction that Merchant submits to FamilyMeal if FamilyMeal reasonably believes that the transaction is in violation of any the Agreement, or exposes Merchant, other FamilyMeal users, FamilyMeal processors or FamilyMeal to harm. Harm includes without limitation fraud, a violation of individual or proprietary rights and other criminal acts. If FamilyMeal reasonably suspects that Merchant’s FamilyMeal Account or Merchant Bank Account has been used for an unauthorized, illegal, or criminal purpose, Merchant gives FamilyMeal express authorization to share information about Merchant, Merchant’s FamilyMeal Account and Merchant Bank Account, and any of Merchant’s transactions with law enforcement.
6.5. Merchant will not incur excessive Chargebacks. If FamilyMeal determines that Merchant is incurring excessive Chargebacks, FamilyMeal may establish controls or conditions governing Merchant’s FamilyMeal Account, including without limitation, by (a) delaying payouts, and/or (b) terminating the Agreement. For any transaction that results in a Chargeback, FamilyMeal may withhold the Chargeback amount and any associated Fees. FamilyMeal may deduct the amount of any Chargeback and any associated Fees, fines, or penalties listed in each Order or assessed by a third party, from either Merchant’s Bank Account.
6.6. FamilyMeal will employ commercially reasonable efforts to rectify payment processing errors that Merchant processes incorrectly if and when Merchant notifies FamilyMeal of such an error. Merchant’s failure to notify FamilyMeal of a payment processing error within thirty (30) days of when it first appears on Merchant’s electronic transaction history will be deemed a waiver of any right to amounts owed to Merchant for such error.
Term and Termination; Suspension; Survival.
7.1. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated as set forth below.
Merchant may terminate an Order, and this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent.
7.2. FamilyMeal may suspend Merchant’s username and password, FamilyMeal Account and access to the Services, and/or may terminate the Agreement at any time, with or without cause, at the full discretion of FamilyMeal.
Representations; Disclaimer of Warranties.
8.1. Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement.
8.2. In addition to Merchant’s other representation and warranties contained herein, Merchant represents, warrants and covenants to FamilyMeal that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; and (b) the name identified by Merchant when Merchant registered is its legal name or business name under which it sells goods and/or services.
8.3. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, FAMILYMEAL AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. FAMILYMEAL AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FAMILYMEAL AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS. MERCHANT ACKNOWLEDGES THAT NEITHER FAMILYMEAL NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. FAMILYMEAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, FAMILYMEAL DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY FAMILYMEAL, THE SERVICES ARE PROVIDED TO MERCHANT ON AN “AS IS” BASIS.
Limitation of Liability.
9.1. IN NO EVENT WILL FAMILYMEAL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF FAMILYMEAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, FAMILYMEAL’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO FAMILYMEAL IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
10.1. FamilyMeal will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party.
10.2. Merchant will indemnify, defend and hold harmless FamilyMeal and its directors, officers, employees, affiliates and agents from and against any and all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by FamilyMeal, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of: (a) Merchant’s use of the Services, other than those attributable to FamilyMeal’s gross negligence or willful misconduct; (b) FamilyMeal’s processing activities on behalf of Merchant; (c) the business of Merchant; (d) any sales transaction conducted by FamilyMeal on behalf of Merchant; (e) any noncompliance with any Applicable Law and Rules by Merchant or its Employees; (f) Merchant’s, or any Employees’, gross negligence, willful misconduct, breach, or nonperformance of any provision of this Agreement; (h) Merchant’s or its Employee’s reliance on any report or other information generated through the Services; (i) any Tax assessment; or (j) any claims against FamilyMeal related to the use by FamilyMeal of any Merchant Data or any of Merchant’s intellectual property.
11.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business under the Agreement. For the avoidance of doubt, FamilyMeal’s Confidential Information includes the Services, Software, FamilyMeal Platform, and Customer Data, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing obligations will not apply with respect to any Confidential Information that the Receiving Party can document: (w) is publicly disclosed with written approval of the Disclosing Party; (x) is known to the Receiving Party at the time of disclosure by the Disclosing Party; (y) becomes lawfully known or available to the Receiving Party without restriction from a source having the lawful right to disclose the information without breach of the Agreement by the Receiving Party; or (z) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.
Data Privacy & Security.
12.1. As part of this Agreement and Merchant’s use of the Services (including the provision and use of Merchant Data and Customer Data), Merchant shall comply with all applicable data privacy and security laws, and not by any act or omission, put FamilyMeal in breach of the applicable data privacy and security laws.
12.4. Where requested by FamilyMeal, Merchant shall provide FamilyMeal with reasonable assistance and cooperation in relation to FamilyMeal’s compliance with the applicable data privacy and security laws, including but not limited to support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to FamilyMeal and our provision of the Services and use of Personal Information as described in the Agreement. In the event Merchant receives any such request or notification, unless otherwise prohibited by law, Merchant shall notify FamilyMeal and shall not respond to the party making the request.
12.5. Merchant is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, and Merchant’s obligations under the Agreement. For the avoidance of doubt, this includes access controls and ensuring that only those individuals that need access to Customer Data are provided with such access. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the data privacy and security laws.
12.6. If Merchant (whether directly or through a third party) discovers or becomes aware of a Security Incident, Merchant shall promptly notify FamilyMeal and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement.
12.7. As part of this Agreement, FamilyMeal shall, with reasonable notice, have the right to perform an audit of Merchant’s facilities, systems and personnel to verify Merchant’s compliance with this Section if it has a reasonable suspicion of a breach or potential breach of the terms of this Agreement. Merchant will provide full cooperation to FamilyMeal and its Representatives in connection with any such audit.
13.1. Any dispute, controversy or claim arising out of or related in any manner to the Agreement or any Services performed hereunder which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall take place before one (1) arbitrator sitting in Monmouth County, New Jersey. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Delaware. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, special damages, exemplary damages, punitive damages or specific performance. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This Section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to the Agreement. In any event, any action or proceeding by Merchant against FamilyMeal relating to any dispute must commence within one year after the cause of action accrues.
13.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, Merchant and FamilyMeal agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and FamilyMeal agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
Neither party shall be in default of its obligations under this Agreement to the extent its performance is: (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.
15.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the State of Delaware, excluding its conflicts or choice of law provisions, and controlling U.S. federal law.
15.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement. The Section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between FamilyMeal and Merchant as a result of this Agreement or use of the Services.
15.3. Entire Agreement. The Agreement together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties’ entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-FamilyMeal ordering document, and no terms included in any such purchase order or other non-FamilyMeal ordering document will apply to the Services or Software.
15.4. Assignment. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets or shares of the assigning company related to this Agreement.
15.5. Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
17.6. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with the Agreement.