PHOOD X SYSTEM TERMS AND CONDITIONS
These Phood X System Terms and Conditions (together with the applicable Order Form, this “Agreement”) by and between Phood Solutions Inc., with its principal place of business at 433 Broadway, New York, New York 10013 (“Phood”) and the customer identified on the Phood order form into which this Agreement is incorporated (the “Order Form”) executed by such customer (the “Customer”, together with Phood, the “Parties”, and each a “Party”), is entered into as of the date that the Customer executes the Order Form (“Effective Date”). The Parties agree as follows:
1. SERVICES.
a. Phood X System. Subject to the terms and conditions of this Agreement, Phood hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable, revocable right to access and use Phood’s software-as-a-service platform known as “Phood X System” (“Phood X System”) during the Term solely for Customer’s own internal business operations.
b. Professional Services. If the Order Form includes the provision of professional services, Phood will use commercially reasonable efforts to provide the professional services set forth in the Order Form (“Professional Services”).
c. Customer Responsibilities. Customer is responsible for access to the Phood X System by other persons as a result of Customer’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the Phood X System. Customer will: (i) prevent unauthorized access to or use of the Phood X System, and notify Phood immediately of any such unauthorized access or use; and (ii) promptly deactivate the Phood X System User account of any individual no longer tasked with the use of the Phood X System. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the Phood X System available to Users and for the collection, storage and processing of information and/or sensitive information by Phood according to Customer’s instructions. “Users” means all users authorized by Customer to access or use the Phood X System.
d. Use Restrictions. Customer will not, directly or indirectly through any third party: (i) use the Phood X System for any purpose other than its own business purposes; (ii) use or access the Phood X System in violation of any applicable law, rule or regulation, including any data privacy law or regulation; (iii) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display or otherwise commercially exploit or make available (collectively, “Distribute”) the Phood X System to any third party, other than to Users; (iv) Distribute libelous, defamatory, pornographic, obscene, invasive of privacy or publicity rights, abusing, inciting, harassing, threatening, unlawful, tortious, misleading, false or fraudulent Customer Content or Customer Data on, to or through the Phood X System; (v) Distribute Customer Content or Customer Data on, to or through the Phood X System that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other
intellectual property right of any party; (vi) Distribute malicious or harmful computer code on, to or through the Phood X System; or (vii) duplicate or reverse engineer the Phood X System, in whole or in part. “Customer Data” means the electronic information or data submitted or made available by or on behalf of Customer or Users that is received, processed or stored by Phood or the Phood X System as part of the Services. “Customer Content” means all content owned by, created by or supplied by or on behalf of Customer or its Users for use on or distribution through the Phood X System.
e. Upgrades and Modifications. Customer agrees that Phood may remove, update, upgrade, enhance or modify the Phood X System or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the Phood X System made available to Customer or Users by Phood will automatically be considered part of the Phood X System and will be subject to the terms and conditions of this Agreement.
f. Suspension. Phood may suspend or interrupt the provision of the Phood X System or Professional Services (collectively, “Services”), in whole or in part, at any time immediately upon notice to Customer if Phood determines that: (i) Customer or Users are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of Phood or its affiliates, the environment in which the Phood X System is deployed, or Phood’s other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All remedies in this Section 1(f) are in addition to, and not in lieu of, other remedies available to Phood.
g. Users. Customer will cause all Users to comply at all times with all representations, warranties, restrictions, obligations and covenants of Customer in this Agreement. Customer will be directly liable to Phood for any breach of this Agreement by, or caused by, Users.
2. PAYMENT.
a. Terms of Payment; Method. Customer shall pay to Phood all fees set forth in the Order Form for the provision of Services (“Fees”) at the times identified in the Order Form (or if none, within fifteen (15) days of the date of the applicable invoice issued by Phood to Customer), without deduction or set-off. All payments of Fees shall be made in U.S. Dollars. Payment can be made by sending a good business check or by electronic funds transfer to the address and/or account referenced on the Order Form. Customer agrees that all payments of Fees are nonrefundable.
b. Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
c. Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of Phood). “Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.
3. TERM AND TERMINATION.
a. Term; Renewal. This Agreement shall commence on the Effective Date and remain in full force and effect for the term set forth on the Order Form (the “Initial Term”), unless and until earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of time equal to the Initial Term (each a “Renewal Term”, together with the Initial Term, the “Term”), unless either Party provides the other Party written notice of nonrenewal no less than ninety (90) days prior to the expiration of the then-current term or earlier terminated in accordance with this Agreement.
b. Termination for Breach. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days (or one (1) day if such breach is a breach by Customer of any payment obligation under this Agreement) after written notice of such breach.
c. Immediate Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within thirty (30) days after the filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property assets, or (v) liquidates, dissolves or winds up its business; or (b) if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal. Phood may terminate this Agreement immediately upon notice to Customer if Customer breaches any provision of Section 1.
d. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Customer and Users to access and use the Phood X System shall terminate immediately; (ii) Phood’s obligation to provide Services shall terminate immediately; (iii) Customer shall immediately cease all use of the Phood X System; (iv) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party; (v) Customer shall certify in writing to Phood that it has satisfied all obligations in this Section 3(d), and (vi) Customer shall pay all Fees incurred as of the date of termination or expiration. Customer acknowledges and agrees that Phood has no obligation to retain Customer Data or Customer Content after termination or expiration of this Agreement, and may delete such Customer Data and Customer Content thirty (30) days after termination or expiration of this Agreement. If Customer wishes for Phood to preserve a copy of its Customer Data or Customer Content for longer than such thirty (30) day period, Customer shall enter into a separate Order Form for the preservation of such Customer Data and Customer Content.
4. OWNERSHIP.
a. Phood Materials. Phood retains all right, title and interest (including all intellectual property rights) in and to the Phood X System (including all updates, upgrades, enhancements or modifications to or of the Phood X System), the solutions provided thereby, all software and technology underlying the Phood X System, all Phood documentation relating to the Phood X System, the Firmware, Phood’s trademarks and all content or works of authorship created, licensed or provided by Phood (collectively, “Phood Materials”). Title to and ownership of any Phood Materials or other work product created by Phood in the course of providing Services shall be held exclusively by Phood, whether such Phood Materials or work product were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the Phood Materials or any work product by implication, estoppel or otherwise. Customer hereby assigns all rights, title and interest in and to the Phood Materials to Phood.
b. Customer Content and Customer Data. As between the Parties, Customer Content and Customer Data shall remain the property of Customer. Customer hereby grants to Phood a nonexclusive, worldwide, royalty-free, perpetual, irrevocable right and license to use, reproduce, distribute, modify, display and prepare derivative works of the Customer Content and Customer Data for purposes of providing the Services to Customer and for all purposes set forth in Phood’s Privacy Policy, which may be amended by Phood from time to time.
5. CONFIDENTIALITY.
a. Confidential Information. From time to time before or during the Term, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 5; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Section 5. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Section 5. Recipient shall be responsible and liable for any and all breaches of this Section 5 by, or caused by, its Recipient’s Group.
b. Data Collection. In addition to the rights and licenses granted in Section 4(b), Customer hereby grants to Phood a nonexclusive, worldwide, royalty-free, irrevocable, perpetual right and license to (i) aggregate Customer Data and information or data that is derived by or through Customer’s or Users’ use of the Phood X System with other data to create Anonymous Aggregated Data; and (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymous Aggregated Data for any and all purposes. Phood may use Anonymous Aggregated Data to benchmark, operate and improve the Phood X System and other Phood goods and services, and market Phood products and services. “Anonymous Aggregated Data” means data that has been aggregated with other data and anonymized to exclude data that identifies any individual or company.
6. HARDWARE
a. Orders. Customer shall purchase hardware (“Hardware”) from Phood at the prices set forth in the applicable Order Form (or if none, at Phood’s then current standard Hardware prices).
a. Shipment. Unless otherwise expressly agreed by the Parties in writing, Phood shall select the method of shipment of and the carrier for the Hardware. Phood may, in its sole discretion, without liability or penalty, make partial shipments of Hardware to Customer. Unless otherwise expressly agreed by the Parties in writing, Phood shall deliver the Hardware to the delivery location set forth in the Order Form, using Phood's standard methods for packaging and shipping such Hardware. Any time quoted for delivery is an estimate only. No delay in the shipment or delivery of any Hardware shall be deemed a breach of this Agreement by Phood or relieve Customer of its obligations under this Agreement.
b. Transfer of Title and Risk of Loss. Title to and risk of loss of Hardware shipped under any Order passes to Customer upon Customer’s acceptance of the Hardware.
c. No Warranty. All Hardware is provided strictly on an “as-is” basis.
d. Firmware. Hardware may include pre-installed or embedded software (“Firmware”). Firmware is licensed and not sold. Subject to Customer’s compliance with the terms and conditions of this Agreement, Phood grants to Customer a nonexclusive, nontransferable, nonsublicensable, revocable license to use such Firmware for the sole purpose of operating the Hardware and accessing the Phood X System for Customer’s internal business operations. Customer may not extract or copy Firmware embedded in Hardware. Customer will not disassemble, decompile, reverse engineer or create derivative works based upon the Firmware nor permit any third party to do so.
7. INDEMNIFICATION. Customer will indemnify, defend and hold Phood, its affiliates, and its and their respective directors, officers, employees, agents, successors and assigns harmless, and hereby releases the foregoing parties, from and against any and all claims, actions, causes of action, suits, litigation, proceedings, investigations, subpoenas, damages, liabilities, losses, awards, judgments, settlements, fines, fee, penalties, costs and expenses of any nature whatsoever (including without limitation reasonable attorney fees), in each case whether direct or third-party or first-party, to the extent the foregoing arise out of or relate to: (i) Customer’s or any User’s actual or alleged breach of this Agreement; (ii) Customer Content or Customer Data; (iii) Customer’s or any User’s actual or alleged negligence or more culpable conduct; (iv) Customer’s actual or alleged violation of any law, rule, regulation or industry standard; or (v) any claim by any customer of Customer. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Section 7 that requires Phood or any other indemnified party under this Section 7 to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.
8. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY.
a. Customer. Customer represents and warrants that: (i) it is permitted to provide to Phood the Customer Content and Customer Data for all purposes related to this Agreement; and (ii) Phood’s possession, reproduction, use or disclosure (separately and together) of the Customer Content or Customer Data in accordance with this Agreement will not infringe upon, misappropriate or violate any right of any third party or any federal, state, local or foreign law, rule, regulation, or statute.
b. Warranty Disclaimer; No-Reliance. THE PHOOD X SYSTEM AND ALL HARDWARE, FIRMWARE, SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND PHOOD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY PHOOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS (IF ANY) IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER, OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. PHOOD HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY MATERIALS. “THIRD-PARTY MATERIALS” MEANS ALL GOODS, SERVICES, TECHNOLOGY, MATERIALS OR INFORMATION, IN ANY FORM OR MEDIUM, INCLUDING ANY OPEN-SOURCE OR OTHER SOFTWARE, DOCUMENTS, DATA, CONTENT, SPECIFICATIONS, PRODUCTS, EQUIPMENT, OR COMPONENTS, OF OR RELATING TO THE SERVICES OR PHOOD X SYSTEM THAT ARE NOT PROPRIETARY TO PHOOD. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED AND IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS WHATSOEVER, WHETHER WRITTEN OR ORAL (FROM OR BY PHOOD OR ANY OF ITS AFFILIATES OR REPRESENTATIVES) OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THAT IT WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
c. Limitation of Liability. IN NO EVENT SHALL PHOOD OR ITS AFFILIATES BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), COVER, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOST PROFITS OR LOSS OF DATA IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SERVICES, PHOOD X SYSTEM, HARDWARE OR FIRMWARE, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT PHOOD SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. THE TOTAL CUMULATIVE LIABILITY OF PHOOD AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH OR RELATED TO THE SERVICES, PHOOD X SYSTEM, HARDWARE OR FIRMWARE, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CUSTOMER TO PHOOD UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE RELATING TO CUSTOMER’S FIRST CLAIM MADE UNDER THIS AGREEMENT. THE FOREGOING LIABILITY CAP IS AN AGGREGATE CAP AND MULTIPLE CLAIMS WILL NOT INCREASE THE CAP. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8(c) SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
9. CHANGES TO TERMS. Phood may amend this Agreement from time to time by posting an amended version at its website or sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Phood written notice of rejection of the amendment. In case of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Renewal Term following the Proposed Amendment Date. Customer’s continued use of the Phood X System following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party.
10. MISCELLANEOUS. This Agreement: (a) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of New York, without giving effect to New York’s conflict of laws rules; (b) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns; and (c) constitutes the sole and entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. Customer may not, directly or indirectly, assign, transfer, or delegate this Agreement, or any of or all of its rights or obligations under this Agreement (whether voluntarily or involuntarily or by merger, operation of law or otherwise), without the prior written consent of Phood. Any purported assignment or delegation in violation of this Section 9 shall be null and void. Each Party expressly consents to the exclusive jurisdiction of the federal, state and local courts serving New York, New York to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, Phood may seek injunctive relief against Customer from any other judicial or administrative authority. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. There are no third-party beneficiaries to this Agreement. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1(c), 1(d), 1(g), 2, 3(d), 4, 5, 6, 7, 8, 9, and 10, and any other provisions which by their nature should survive such termination or expiration. Phood shall not be liable for failure or delay in performing its obligations under this Agreement if such failure is a result of any event outside of the reasonable control of Phood.
Last Updated: December 8, 2022