Terms of Service & Merchant Agreement
1.1. Platform Services.
Subject to the terms and conditions of this Agreement, Beachy agrees to provide to Merchant access to and use of Beachy's proprietary, app-based and web-based centralized ordering and management system (the "Platform Services"). The Platform Services include Merchant's use of (a) Beachy's web-based attendant application (the "App"), through which Merchant's personnel and contractors ("Authorized Users") may take orders for Merchant's goods and services ("Merchant Offerings") directly from current and prospective customers ("Customers"), for example, by bringing a tablet or mobile device to the Customer's location, rather than requiring the Customer to come to the Merchant's point of sale, and (b) Beachy's web-based merchant management suite portal (the "Portal"), through which Merchant's Authorized Users may process, execute, and manage such Orders. Beachy shall provide the Platform Services to Merchant and the affiliates of Merchant provided in writing to Beachy as of the Effective Date (each, an "Affiliate"). Merchant shall be solely and exclusively responsible for any and all acts and omissions of Merchant, its Affiliates, and its and their Authorized Users and expressly acknowledges and agrees that any breach of this Agreement by any Affiliate or Authorized User shall be deemed a breach by Merchant. Notwithstanding anything herein to the contrary, Merchant acknowledges and agrees that Beachy may engage third party service providers to perform certain portions of the Platform Services, such as cloud hosting, payment processing, and other related functionalities. Accordingly, certain portions of the Platform Services may be subject to third-party terms and conditions ("Third-Party Terms"). Beachy shall use commercially reasonable efforts to provide Merchant with notice of, and access to, such Third-Party Terms.
1.2. Website Services.
In addition to the Platform Services described above, Merchant may purchase Beachy's e-commerce solution (the "Website Services"). The Platform Services and the Website Services are sometimes collectively referred to herein as the "Services." Beachy provides two (2) options with respect to the Website Services: either Beachy will provide Merchant with a widget (the "Online Booking Tool") that it may embed on Merchant's website (the "Merchant Website"), or, to the extent Merchant does not have a website, Beachy will create a basic Merchant Website on Merchant's behalf, which will automatically reroute visitors to a Beachy URL (the "Beachy URL"). The Online Booking Tool allows the Merchant Website to integrate with the App, so that visitors to the Merchant Website may place Orders with Merchant via the App. The Beachy URL allows visitors to place orders with Merchant via the App directly. If Merchant purchases the Website Services with the Online Booking Tool option, Merchant hereby grants Beachy the right to embed the Online Booking Tool into the Merchant Website and shall provide Beachy with the credentials to perform such integration to the extent necessary. To the extent permission to integrate the Online Booking Tool into the Merchant Website is required from a third party acting on Merchant's behalf (e.g., Merchant's hosting provider or webmaster), Merchant will assist Beachy in promptly obtaining such permission and any necessary access credentials. Upon expiration or termination of this Agreement, Beachy shall promptly remove the Online Booking Tool from the Merchant Website and Merchant shall ensure that Beachy has the necessary credentials to perform such removal. In the event Merchant does not have a website and Beachy creates the Merchant Website that redirects to the Beachy URL on Merchant's behalf in connection with provision of the Website Services, the parties shall comply with the additional terms and conditions for the Merchant Website design and development (the "Website Development Terms") set forth in Exhibit A to this Agreement, which is hereby incorporated into this Agreement and made a part hereof by this reference.
Beachy reserves the right to modify the Services from time to time by adding, deleting, or modifying features of the Portal, the App, and/or the Online Booking Tool to improve the user experience or for other business purposes. Beachy further reserves the right to discontinue any feature of the Services, or any portion thereof, at any time during the Term (as defined below) at Beachy's sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Services.
1.4. Service Levels.
During the Term, Beachy, or its contractors, shall host the Portal and the App, such that they are available for use by Merchant. Beachy and/or its contractors shall periodically monitor the Portal and the App to optimize performance, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond Beachy's reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. Beachy will notify Merchant of any unavailability or other issue with the Portal or the App of which Beachy has knowledge.
2. Merchant's Responsibilities.
2.1. Merchant Content.
Merchant shall provide all information necessary to enable Beachy to perform the Services hereunder, including without limitation logos, artwork, available inventory (if any), pricing, and other content related to the Merchant's offerings ("Merchant Content"). Merchant hereby grants Beachy a non-exclusive, royalty-free, worldwide right and license to use, display, reproduce, transmit, publish, copy and otherwise exploit the Merchant Content as necessary to provide the Services hereunder. Merchant further grants Beachy a non-exclusive, royalty-free, worldwide right and license to reference Merchant in its customer lists and marketing materials, including, without limitation, on Beachy's website, using any Merchant Content. Merchant agrees it is solely responsible for (a) ensuring the accuracy of Merchant Content, including without limitation (i) Merchant Content initially loaded onto the App and Portal; and (ii) making all necessary changes and updates to the Merchant Content either through certain administrative tools made available to Merchant on the Portal or otherwise to keep the Merchant Content up to date; (b) processing and delivering all Orders promptly upon receipt; and (c) compliance with all Applicable Laws (as defined below) and third-party rights with respect to the Merchant Content, the conduct of Merchant's business, and use of the Services.
2.2. Restrictions on Use.
Merchant will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Services; (ii) allow an Authorized User to share with any third party his or her access credentials described in Section 2.3; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Portal, the App, or the Online Booking Tool; (iv) modify, adapt, or translate the Portal, the App, or the Online Booking Tool; (v) make any copies of the Portal, the App, or the Online Booking Tool; (vi) resell, distribute, or sublicense the Portal, the App, or the Online Booking Tool or use any of the foregoing for the benefit of anyone other than Merchant, its Affiliates, or the Authorized Users unless permitted in writing by Beachy; (vii) save, store, or archive any portion of the Services outside the Portal or the App other than those outputs generated through the intended functionality of the Services without the prior, written permission of Beachy in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Portal, the App, or the Online Booking Tool; (ix) use the Portal, the App, or the Online Booking Tool in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; or (x) introduce, post, or upload to the Portal or the App any Harmful Code (as defined below).
Beachy has the right to monitor Merchant's compliance with this Section 2. If any such monitoring reveals that Merchant is not using the Portal, the App, or the Online Booking Tool in compliance with this Section 2, then Merchant will remedy any such non-compliance within five (5) business days of receiving notice from Beachy, including, if applicable, through the payment of additional Fees (as defined below). Failure to remedy such default shall be deemed a material breach of this Agreement by Merchant.
2.4. Onboarding of Authorized Users.
Authorized Users must log in to use the App and the Portal. During the initial registration, an Authorized User will be prompted to create an account, which includes a user name (which may be an email address) ("User Name"), a password ("Password"), and certain additional information, including a valid email address, that will assist in authenticating the Authorized User's identity when he or she logs-in in the future ("Unique Identifiers"). When creating an account, an Authorized User must provide true, accurate, current, and complete information. Merchant is solely responsible for the confidentiality and use of Authorized Users' User Names, Passwords, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Portal or the App. Merchant will promptly inform Beachy of any need to deactivate a Password or User Name or change any Unique Identifier. Beachy reserves the right to delete or change Authorized Users' Passwords, User Names, or Unique Identifiers at any time and for any reason. Beachy will not be liable for any unauthorized use of an Authorized User's account.
2.5. Applicable Laws; Harmful Code.
As used in this Agreement: (i) "Applicable Laws" means, with respect to any entity, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such entity or any of its properties, assets, or business operations, including, without limitation, applicable tax laws and regulations; and (ii) "Harmful Code" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, "Trojan horses," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Portal, the App, or the Online Booking Tool to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.
Customer bears the entire risk of loss, theft, damage or destruction of iPads, credit card readers, and cases (“Equipment”) in whole or in part from any reason whatsoever (“Casualty Loss”). No Casualty Loss to Equipment shall relieve Customer from the obligation to pay the installment payments or from any other obligation under this Agreement. In the event of Casualty Loss to any item of Equipment, the Customer shall immediately notify Beachy of the same and Customer shall, if so directed by Beachy, immediately repair the same. In the event of non-use for 30 days or longer, Customer shall return all Equipment to Beachy at the expense of the Customer.
3.1. Merchant Data.
The App and the Portal require Merchant to provide certain data including Merchant Content, Authorized Users' personal information such as name, email address, and other identifying information, and other relevant business information ("Merchant Data"). In addition, the App and the Online Booking Tool require Customers to provide certain data, including without limitation certain personal and financial information necessary to place an Order (collectively, "Customer Data"). For purposes of this Agreement, Customer Data is included in the definition of Merchant Data. Although Merchant owns the Customer Data, it hereby represents, warrants, and covenants that it shall not sell, license, or commercialize the Customer Data, in any respect, in whole or in part; provided, however, that it may use such Customer Data in connection with its performance of its obligations under this Agreement and to market and promote its own goods and services, subject to all Applicable Laws, including, without limitation, privacy and data protection laws, rules, and regulations, and the applicable Website Terms. As between the parties, and subject to Section 3.2 below, Merchant is the sole and exclusive owner of all right, title, and interest in and to the Merchant Data, and all intellectual property rights therein. Subject to the terms and conditions of this Agreement, Merchant hereby grants Beachy a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Merchant Data only for the purpose of providing the Services hereunder and as permitted under Section 3.2 below. Upon expiration or termination of the Agreement, Beachy may retain an archival copy of the Merchant Data kept in the normal course of business or for purposes of complying with Applicable Law. Beachy assumes no responsibility for Merchant's, or Merchant's Affiliates' or Authorized Users', omissions, fraud, unauthorized access, or mishandlings or misuse of Customer Data that results in loss, damage, unauthorized access, use, disclosure or errors with respect to Customer Data. Merchant agrees that it is responsible for the establishment and maintenance of back-up plans and procedures to protect against the possibility of damage, loss or unauthorized access, use, or disclosure of Customer Data.
3.2. Aggregate Data and Usage Data.
Beachy monitors the performance and use of the Portal, the App, the Online Booking Tools, and the Merchant Websites (to the extent operated by Beachy), and we collect data in connection therewith, including, without limitation, date and time that Authorized Users access Portal and the App, the portions or pages of the Portal and the App visited, the frequency and number of times such pages are accessed, the number of clicks on the Online Booking Tool, and other usage data (the "Usage Data"). We may combine this Usage Data with other data (including any Merchant Data), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the "Aggregate Data"). Aggregate Data does not identify Merchant, any Authorized User, any Customer, or any other individual. Merchant hereby agrees that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.
4. Intellectual Property.
As between the parties, all right, title, and interest in and to the Portal, the App, the Online Booking Tool, the Services, and all systems, ideas, designs, methods, methodologies, developments and any associated intellectual property and materials used to provide the Services, whether referenced herein or not, (collectively, the "Beachy Intellectual Property") are the sole and exclusive property of Beachy. During the Term, Merchant may elect to provide Beachy with feedback, comments, and suggestions with respect to the Portal, the App, the Online Booking Tool, or the Services ("Feedback"). Merchant agrees that Beachy will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback in perpetuity, for any purpose, without compensation or attribution to Merchant.
5. Fees and Payment.
In consideration for Beachy's performance of the Platform Services, Merchant shall pay to Beachy, without offset or deduction, the annual fees set forth in Exhibit C which is incorporated herein and made a part hereof by this reference (the "Platform Services Fees"). If Merchant has ordered the Website Services, then, in consideration for Beachy's performance thereof, Merchant shall pay to Beachy, without offset or deduction, the annual fees set forth in Exhibit C (the "Website Services Fees," and, together with the Platform Services Fees, the "Fees"). In addition to the Fees, Merchant acknowledges and agrees that all transactions between Customers and Merchant that occur via the App (including via the Online Booking Tool or Beachy URL) shall be subject to a transaction fee in the amount set forth in Exhibit C hereto (the "Transaction Fee"). Merchant acknowledges and agrees that the Fees and the Transaction Fees are subject to modification by Beachy at any time during the Term, upon at least sixty (60) days' advance written notice to Merchant.
5.2. Fee Payment Terms
Beachy shall invoice Merchant for the Fees in accordance with the terms set forth in Exhibit C. If Merchant's account is overdue at any time (except with respect to charges then under reasonable and good faith dispute), then, in addition to any of its other rights or remedies, Beachy may suspend the Services provided to Merchant, without liability to Merchant, until such amounts are paid in full. In the event that any undisputed payment required by the Merchant under this Agreement is more than fifteen (15) days late, there shall be a late fee of five percent (5%) of the payment due, and interest shall accrue on the unpaid amount at one and one-half percent (1.5%) per month, or the highest rate allowed by law, whichever is less. All costs of collections for unpaid amounts due hereunder shall be the responsibility of the Merchant and shall include but not be limited to attorney fees and court costs.
5.3. Transaction Fee Payment Terms.
Beachy shall collect all amounts due in connection with any transaction between Merchant and a Customer occurring via the App (including the Online Booking Tool or the Beachy URL), including, but not limited to, the Transaction Fees. Accordingly, for purposes of this Agreement, Beachy shall cause its Third-Party Payment Processors (as defined below) to act as Merchant's payment processor for transactions made through the App. Beachy uses a third-party payment processor (the "Third-Party Payment Processor") to process all payments made by Customers. Beachy shall distribute to Merchant all amounts collected from Customer transactions, less the applicable Transaction Fee as well as any processing fees Beachy is required to pay to its Third-Party Payment Processor. Such distributions shall occur on a once-daily basis unless otherwise agreed by the parties hereto in writing.
Fees and other charges described herein are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes ("Taxes") now or hereafter levied, all of which will be for Merchant's account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to Beachy prior to the execution of this Agreement. If Beachy is required to collect and remit Taxes on Merchant's behalf, Beachy will invoice Merchant for such Taxes, and Merchant will pay Beachy for such amounts in accordance with the payment terms set forth in this Section 5. For the avoidance of doubt, it is Merchant's sole and exclusive responsibility to inform Beachy of any Taxes that Merchant is required to charge its Customers for the Merchant Offerings. Since Beachy is acting as Merchant's merchant of record with respect to the sale of Merchant Offerings, Beachy shall pass through to Customers all Taxes required to be collected by Merchant provided that Merchant has informed Beachy of the applicable Tax obligations, rates, and remittance requirements. Beachy shall not be liable to the applicable Taxing authority to the extent that its failure to collect necessary Taxes from Customers on the transactions occurring via the App is due to Merchant's failure to provide Beachy with accurate, up-to-date information with respect to such Taxing requirements.
Unless otherwise expressly provided for in this Agreement, (i) all Fees are based on Services purchased and not on actual use; and (ii) all Fees and Transaction Fees paid under this Agreement are non-refundable.
6.1. Confidential Information.
"Confidential Information" means (i) with respect to Beachy, the Portal, the App, the Online Booking Tool, the Aggregate Data, the Usage Data, the Services, and any and all source code relating thereto and any other non-public information or material regarding Beachy's legal or business affairs, financing, customers, properties, pricing, or data; and (ii) with respect to Merchant, the Merchant Data (including Customer Data) and any non-public information or material regarding Merchant's legal or business affairs, financing, employees, Customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the "Receiving Party"); (b) is documented as being known to the Receiving Party prior to its disclosure by the other party (the "Disclosing Party"); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
6.2. Confidentiality Obligations.
At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its "Representatives"), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party's Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
6.3. Specific Performance and Injunctive Relief.
The Receiving Party acknowledges that in the event of a breach of Section 6.2 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 6.2, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.2. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
7.1. By Merchant.
Merchant shall indemnify and hold Beachy, Beachy's affiliates, and its and their respective Representatives, successors, and assigns ("Beachy Indemnified Parties") harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") incurred by any Beachy Indemnified Party in connection with any third-party claims, demands, suits, causes of action, or proceedings (each, a "Claim") made or brought against any Beachy Indemnified Party arising out of or relating to (i) Merchant's, its Affiliates', or its or their Authorized Users' (a) breach of this Agreement or any applicable Exhibit hereto, including, without limitation, any of the representations or warranties made by Merchant hereunder, and including any Website Terms, and including any failure to provide Beachy with the applicable, accurate Tax obligations with respect to transactions occurring via the App pursuant to Section 5.4 hereof; (b) conduct of Merchant's business, including but not limited to complying with all Applicable Laws in connection with Merchant's business; and/or (c) gross negligence or willful misconduct; and/or (ii) an allegation that the Merchant Content, and Beachy's use thereof as permitted hereunder, infringes, misappropriates, or otherwise violates any third-party copyrights or trade secrets.
7.2. By Beachy.
Beachy will indemnify, defend, and hold Merchant, its Affiliates, and its and their respective Representatives, successors, and assigns ("Merchant Indemnified Parties") harmless from and against any and all Losses incurred by any Merchant Indemnified Party in connection with any third-party Claim (x) arising from Beachy's gross negligence or willful misconduct, or (y) alleging that Beachy's access to and use of the Portal, the App, or the Online Booking Tool in accordance with this Agreement infringes, misappropriates, or otherwise violates any third-party copyrights or trade secrets. In the event that Beachy reasonably determines that the Portal, the App, or the Online Booking Tool is likely to be the subject of a third-party infringement Claim, Beachy will have the right (but not the obligation), at its own expense, to: (i) procure for Merchant the right to continue to use the Portal, the App, or the Online Booking Tool as provided in this Agreement; (ii) replace the infringing components of the Portal, the App, or the Online Booking Tool with other components with equivalent functionality; or (iii) suitably modify the Portal, the App, or the Online Booking Tool so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to Beachy on commercially reasonable terms, Beachy may terminate this Agreement without further liability to Merchant. Notwithstanding the foregoing, Beachy is not obligated to indemnify, defend, or hold any Merchant Indemnified Party harmless with respect to any third-party infringement Claim to the extent the third-party Claim arises from or is based upon (a) Merchant's, its Affiliates', or its or their Authorized Users' use of the Portal, the App, or the Online Booking Tool not in accordance with this Agreement; (b) any unauthorized modifications, alterations, or implementations of the Portal, the App, or the Online Booking Tool made by or on behalf of Merchant (other than by Beachy); (c) use of the Portal, the App, or the Online Booking Tool in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by Beachy; or (d) use of the Portal, the App, or the Online Booking Tool in a manner or for a purpose for which they were not designed. This Section 7.2 states Merchant's sole and exclusive remedy, and Beachy's sole and exclusive liability, regarding any third-party infringement Claim.
The indemnification obligations set forth in Section 7.1 and Section 7.2 are subject to the indemnified party: (i) promptly notifying the indemnifying party of the Claim; provided, however, that any failure of the indemnified party to provide prompt written notice pursuant to this Section 7.3 shall excuse the indemnifying party only to the extent that it is prejudiced thereby; (ii) providing the indemnifying party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying party may not make any admission of liability on behalf of the indemnified party without the indemnified party's approval.
8. Representations and Warranties; Disclaimer.
8.1. Mutual Representations and Warranties.
Each party represents and warrants to the other party that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all Applicable Laws in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, data protection, and unfair business practices; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Merchant, any franchise agreement if applicable.
8.2. Additional Representations, Warranties, and Covenants of Merchant.
In addition to the representations and warranties set forth in Section 8.1, Merchant represents, warrants, and covenants to Beachy that: (i) it shall timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the App or the Online Booking Tool; (ii) the Merchant Content and Beachy's exercise of any license granted hereunder, do not and will not, infringe, misappropriate, or otherwise violate the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; and (iii) Merchant's collection, processing, storage, transfer, and use of all Customer Data is and shall be done in accordance with all Applicable Laws.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, THE PORTAL, THE app, THE ONLINE BOOKING TOOL, ANY MERCHANT WEBSITE OPERATED BY BEACHY, AND ALL INFORMATION AND MATERIALS PROVIDED BY BEACHY HEREUNDER ARE PROVIDED "AS IS," AND "as AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEACHY AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, or that the Services will meet Merchant's requirements. Neither beachy nor any of its licensors or suppliers warrants that the services will be uninterrupted or error-free. WITHOUT LIMITING THE FOREGOING, MERCHANT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY RESELLER, DISTRIBUTOR OR REPRESENTATIVE THAT ARE NOT AUTHORIZED BY BEACHY OR THAT ARE INCONSISTENT WITH THE REPRESENTATIONS AND WARRANTIES MADE HEREIN HAVE ANY EFFECT, AND BEACHY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES AND REPRESENTATIONS MADE BY A RESELLER, DISTRIBUTOR, OR REPRESENTATIVE.
MERCHANT ACKNOWLEDGES AND AGREES THAT THE APP AND ANY SERVICES PROVIDED HEREUNDER ARE SOLELY A CONDUIT FOR Customer TRANSACTIONS AND CUSTOMER DATA. THE PARTIES AGREE THAT, AS BETWEEN Merchant AND Beachy, Merchant IS SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF Customer DATA. Beachy SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH Customer DATA, INCLUDING WITHOUT LIMITATION ANY ACT OR OMISSION TAKEN BY Merchant AS A RESULT OF OR WITH RESPECT THERETO. Beachy EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE USE OR TRANSMISSION OF Customer DATA THROUGH THE APP, THE PORTAL, THE ONLINE BOOKING TOOL, OR OTHERWISE.
9. Limitation of Liability.
EXCEPT FOR LIABILITIES ARISING OUT OF BEACHY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR BEACHY'S INDEMNITY OBLIGATIONS HEREIN, (I) IN NO EVENT SHALL BEACHY OR ITS LICENSORS HAVE ANY LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EVEN IF BEACHY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT SHALL BEACHY OR ITS LICENSORS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY MERCHANT HEREUNDER, TO BEACHY, IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO THE LIABILITY.
10. Term and Termination.
The initial term of this Agreement shall commence on the Effective Date and continue for a period of three (3) years (the "Initial Term"). Thereafter, this Agreement shall automatically renew for consecutive periods of one (1) year (each, a "Renewal Term," and collectively with the Initial Term, the "Term"), unless either party notifies the other in writing of its desire not to renew at least thirty (30) days prior to the end of the then-current Term, in which event the Agreement shall expire as of the last day of the then-current term.
Either party may terminate this Agreement (i) for a material breach by the other party where such breach is not cured within five (5) days of written notice of such breach, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Either party may terminate this Agreement at any time, for any or no reason (for "Convenience"), upon ninety (90) days' prior written notice to Merchant without penalty or liability except as provided in Section 10.3 below, or upon written notice to Merchant under the limited circumstances set forth in Section 7.2.
10.3. Effect of Termination.
Upon termination of this Agreement as set forth in Section 10.2: (i) Beachy will stop providing the applicable Services, and Merchant will immediately cease, and cause its Affiliates and Authorized Users to cease, all access to and use of the Portal and the App, and shall permit Beachy to immediately remove the Online Booking Tool from the Merchant Website, if applicable, pursuant to Section 1.2; (ii) if Beachy has terminated this Agreement for Convenience, Beachy will refund to Merchant a pro-rata portion of any Fees that have been pre-paid, pro-rated as of the effective date of termination; and (iii) upon written request, each party will either return to the Disclosing Party (or, at such Disclosing Party's instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party's Confidential Information that are in the Receiving Party's possession or control, except for archival copy to the extent permitted under Section 3.1 of this Agreement.
The following provisions will survive termination of this Agreement: Section 3.2 ("Aggregate Data and Usage Data"), Section 4 ("Intellectual Property"), Section 5 ("Fees and Payment") until Merchant has paid all Fees and applicable Taxes, Section 6 ("Confidentiality"), Section 7 ("Indemnification"), Section 8 ("Representations and Warranties; Disclaimer"), Section 9 ("Limitation of Liability"), Section 10.3 ("Effect of Termination"), this Section 10.4 ("Survival"), Section 13 ("Governing Law; Venue; Dispute Resolution), and Section 14 ("General").
Merchant acknowledges and agrees that Beachy shall be Merchant's and its Affiliates' (if any) exclusive provider of the Services, and Merchant shall not directly or indirectly encourage or solicit Customers to bypass use of the App by permitting the placing of future Orders through Merchant or any third party not hired by Beachy as part of this Agreement.
During the Term, Beachy shall have the right, but not the obligation, to publicly announce in any and all media, including on Beachy's website and on Merchant's Website, if applicable, and through social media, that Merchant is a client of Beachy and a user of the App.
13. Governing Law; Venue; Dispute Resolution.
This Agreement shall be governed exclusively by the laws of the State of Delaware, without regard to its conflicts or choice of law rules. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION RELATED TO THIS AGREEMENT. All disputes or claims arising out of or related to this Agreement shall be determined exclusively by arbitration in accordance with the expedited rules of Judicial Arbitration and Mediation Services ("JAMS") before a single arbitrator. Such arbitration shall be conducted in Nashville, Davidson County, Tennessee. The award of such arbitration shall be confidential, final, binding and non-appealable, except to the extent provided for in the rules of JAMS, and judgment on the arbitration award may be entered into any court having jurisdiction. Each party shall bear its own legal fees and costs, except the costs of collections for unpaid amounts by the Merchant, pursuant to this agreement, with the Merchant bearing the costs of all such collections, including but not limited to attorney fees and court costs. Notwithstanding the foregoing, a party may seek injunctive relief from any court of competent jurisdiction pending the outcome of any dispute resolution procedure set forth in this section. ARBITRATOR SHALL NOT AWARD ANY PARTY DAMAGES THAT ARE INCONSISTENT THIS THE TERMS OF THIS AGREEMENT.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This Agreement is entered into for the benefit of the parties only. There are no third-party beneficiaries except as expressly provided in Section 7 (Indemnification). If any provision in this Agreement is found by a court or arbitrator to be invalid, the parties agree that the court or arbitrator give effect to the parties' intentions as reflected in the provision, and the other provisions will remain in full force and effect. If the performance of any obligation hereunder is prevented or interfered with by a force majeure event (i.e., any condition beyond the reasonable control of, and not occasioned by the fault or gross negligence of, the affected party), the party so affected shall be excused from such performance to the extent of such prevention or interference; provided, however, that the non-performing party shall resume its performance as soon as practicable and this provision shall not excuse the nonpayment or permit late payment of Fees or other amounts due from Merchant to Beachy as required by this Agreement. Merchant shall not assign this Agreement or delegate any of its obligations without the prior written consent of Beachy. Any unconsented to assignment or delegation shall be voidable at the option of Beachy. This Agreement and all Exhibits hereto constitute the entire agreement between the parties and supersedes any and all oral and/or prior written agreements between the parties with respect to its subject matter. This Agreement may not be modified or altered, and no provision of this Agreement may be waived, except by a written instrument executed by both parties. This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto. The headings and captions of the paragraphs and sections of this Agreement are for convenience only and do not in any way modify or construe the intention of the parties or affect any of the provisions of this Agreement. In the event this Agreement is being entered into by a Merchant that is an entity of any type, (regardless of whether it is a corporation, partnership, limited liability company, sole proprietorship, trust, or otherwise) the person executing this Agreement for and on behalf of the Merchant covenants that he or she has the power and authority to execute this Agreement for and on behalf of the Merchant; that upon the execution of same, the entity will recognize it as the act and business deed and be fully bound thereby. The failure of any party to insist upon a strict performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that the parties may have and shall not be deemed a waiver of any subsequent breach of such term or condition. The parties stipulate that this Agreement is the result of a negotiation between the parties and shall be construed as having been drafted by all parties. Therefore, the Agreement will not be construed in favor or against any party or parties on the grounds of having been drafted by said party or parties.
WEBSITE DEVELOPMENT TERMS
These Website Development Terms apply to and govern Beachy's provision of Website Services, as requested by Merchant, to the extent that Beachy is being required to develop and host the Merchant Website which shall reroute to a Beachy URL and are being entered into pursuant to the Agreement between Merchant and Beachy to which these Website Development Terms are attached, which is hereby incorporated by reference. Capitalized terms not defined in these Website Development Terms are as defined in the Agreement.
Merchant shall purchase and at all times own the domain; provided, however, that Beachy shall be the sole and exclusive owner of the Beachy URL. Beachy shall design and develop the Merchant Website using the tools, templates, and methodologies of Beachy and its third-party service providers (the "Tools and Templates").
As between the parties, Merchant shall own all right, title, and interest in and to the Merchant Website (other than the Beachy URL), and all Merchant Content that is uploaded to the Merchant Website, and Beachy (or its third-party service providers, as applicable) shall own all right, title, and interest in and to the Tools and Templates and the Beachy URL.
Beachy may include the words "Powered by Beachy" on the Merchant Website and any pages thereof.
During the Term, Beachy or its third-party hosting providers shall host the Merchant Website. Upon expiration or termination of the Agreement, (i) Beachy and its hosting providers shall no longer host the Merchant Website; (ii) Beachy shall remove and/or delete the Beachy URL such that traffic is no longer rerouted to the Beachy URL from the Merchant Website; and (iii) Merchant shall remove or permit Beachy to remove the "Powered by Beachy" indicator, as required under the Agreement.
If at any time during the Term Merchant desires to operate the Merchant Website on its own, Merchant shall notify Beachy thereof, and Beachy shall (i) remove and/or delete the Beachy URL such that traffic is no longer rerouted to the Beachy URL from the Merchant Website, and (ii) embed, or cause its service providers to embed, the Online Booking Tool into the Merchant Website in order for the Website Services to continue pursuant to the Agreement. Nothing herein shall permit Merchant to cancel the Website Services during the Term. To the extent that Merchant opts to switch from the Beachy URL to the Online Booking Tool pursuant to this paragraph, Merchant shall continue to pay the Website Services Fee pursuant to the Agreement.
THE MERCHANT WEBSITE AND BEACHY URL ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND BEACHY AND ITS THIRD-PARTY SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER BEACHY NOR ITS THIRD-PARTY SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS MAKE ANY WARRANTY THAT THE MERCHANT WEBSITE OR BEACHY URL WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED.
REQUIRED LANGUAGE FOR WEBSITE TERMS
Pursuant to Section 2.6 of the Agreement, and to the extent applicable, Merchant shall ensure that the following provisions are included in all Website Terms:
When you place an order through this website, the website collects both personal information about you (such as your name, address, phone number, and email address) ("Personal Information"), and your financial information (such as your credit card number, debit card number, billing address, bank information, and other financial information) ("Financial Information").
In order to provide access to this website while you are using a mobile device, we may collect geolocational information from your mobile device, your wireless carrier, or certain third-party service providers ("Geolocational Information"). Collection of such Geolocational Information occurs only when the website is running on your mobile device. You may control the collection of Geolocational Information through the user settings on your device. You may decline to allow us to collect such Geolocational Information, in which case we will not be able to provide certain services to you.
You hereby grant us the right to share your Personal Information, your Financial Information, and your Geolocational Information as follows:
- In order to provide you our services, we may need to share your Personal Information with the third-party service providers that we engage to provide you with such services, such as food delivery contractors, or equipment rental contractors. Such parties will use such Personal Information in accordance with the terms of their privacy policies.
FEES, TRANSACTION FEES, INVOICING, AND PAYMENT TERMS
- The annual Fees for the Services are as follows:
- The Platform Services Fees for the first year of the agreement are $0.00 per calendar month during the Term;
- The Platform Services Fees for the second year through the Term of the agreement are included;
- The Website Services Fees, if any, are $0.00.It is understood and agreed that the Fees are not refundable unless otherwise expressly provided in the Agreement. The Website Services Fees do not change if and to the extent Merchant switches from the Beachy URL to the Online Booking Tool, or vice versa.
- The Transaction Fees are as follows:
- The Transaction Fee will be 6% of all transactions, with a minimum of $0.50 for each transaction.The Transaction Fees shall be added to the total amount owed by the Customer in connection with such transaction and shall be due and payable by the Customer directly.