EVERYTABLE, PBC
SMARTFRIDGE TERMS AND CONDITIONS
These SmartFridge Terms and Conditions (the "Terms and Conditions") along with any applicable order form(s) incorporated herein by reference (the "Order Form(s)") (the Terms and Conditions and Order Form(s), collectively, this "Agreement") comprise the entire agreement between Everytable, PBC, a Delaware public benefit corporation ("Everytable" or “Company”) and any customer listed on any applicable Order Form(s) (each, a "Customer") and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. (Everytable and Customer each individually a "Party," and collectively, the "Parties"). In the event of a conflict between these Terms and Conditions and the Order Form(s), the Order Form(s) will prevail.
1. Everytable Responsibilities. Pursuant to this appointment, Everytable shall install, maintain, and service the Equipment at the Locations, restock the Equipment with the Goods (weekly), monitor and track all sales and any taxes owing from the sale of such Goods, and provide Customer with automated menu selection based on best sellers in Customer’s area.
2. Customer Responsibilities. Customer shall (a) furnish Everytable with and bear the costs of the space and utilities necessary to permit the sanitary operation of the Equipment and its related services (b) maintain and service the areas around the Equipment in a clean, sanitary manner in accordance with all relevant laws, (c) provide Everytable employees access necessary to properly and safely provide the Services, (d) ensure continuous utilities service to the Equipment, (e) notify Everytable promptly of any issues with the Equipment, (vi) not cause or permit any vandalism or tampering, or manipulation of the Equipment, and (f) handle the Goods in compliance with food safety standards and regulations, including safe storage temperature. Customer shall bear the costs of repair or replacement as necessary in the event of any damage to the Equipment and/or Goods not caused by Everytable, other than normal wear and tear. Customer shall be solely responsible for any costs or damages incurred as a consequence of its failure to perform the foregoing responsibilities.
3. Term and Termination. The Agreement shall commence on the date reflected in the Order Form for the term described therein (the “Term”). This Agreement may be terminated by Customer by providing written notice to Everytable at least 30 days prior to the annual renewal date, or by Everytable immediately upon written notice to Customer. Upon termination of this Agreement, all payment obligations shall become immediately due and payable, and Everytable shall remove the Equipment within 30 days of the end of the Term. Upon the expiration or Termination of this Agreement for any reason, Customer shall promptly return to Company any confidential information of the Company in Customer's possession or control and shall keep all such information in strict confidence following termination of this Agreement. Customer shall maintain its books and records related to its sale of the Goods for not less than 3 years (or as required by applicable law, if greater).
4. Financial Terms; Late Payments. The Goods and prices detailed in the Order Form represent Everytable’s most recent product offerings, are illustrative only, and are subject to change without notice based upon availability and changes to Everytable’s menu, in Everytable’s sole discretion. If any payment obligation under this Agreement is not paid when due, the Customer shall pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as part of the collection process. Any returned or rejected payment shall be subject to a $25 returned payment fee. In the event of a late payment, Everytable may exercise any of the following remedies at Everytable’s discretion, without limitation: (a) interest accrued at a rate of 1.5% per month (or the maximum amount permitted under applicable law) on the outstanding amount until paid; (b) stop delivery of the Goods and/or suspend performance for all Services until payment has been made in full; and/or (c) assess Customer all reasonable costs and expenses incurred by Everytable to obtain, enforce or preserve the rights granted by this Agreement and to collect the payments for the Goods provided, including, without limitation, all reasonable out-of-pocket costs, and all reasonable attorneys' fees and collection expenses incurred in obtaining or enforcing payment and any judgments related thereto of any of the Services provided.
5. Disputes; Defective Goods. Any payment disputes must be received by Everytable within 5 days of the relevant invoice, or such invoice shall be deemed accepted by Customer. Everytable shall not be liable for any allegedly defective Goods or Services unless Customer gives written notice of the defective Goods or Services, reasonably described, to Everytable within 1 business day of the time when Customer discovers or ought to have discovered that the Goods or Services were defective, and if determined Goods or Services are defective in Everytable’s discretion upon review of Customer’s notice, Customer’s sole remedy shall be that Everytable shall, in its sole discretion, perform either of the following at its sole expense: replace the Goods (or the defective par thereof); reperform the defective Services at Everytable’s expense; or credit or refund the price of such defective Goods or Services at the then current Agreement rate. THE REMEDIES SET FORTH HEREIN SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND EVERYTABLE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION.
6. Disclaimer of Warranties. EVERYTABLE MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
7. Limitation of Liability. EVERYTABLE IS NOT LIABLE FOR ANY LOSS OF USE, REVENUE, PROFIT, DATA, OR FOR ANY INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, REGARDLESS OF FORESEEABILITY. EVERYTABLE'S TOTAL LIABILITY WILL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER IN THE YEAR BEFORE THE CLAIM.
8. Governing Law; Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration shall be conducted in Los Angeles, California. The arbitration award shall be final and binding on the Parties. The Parties agree that the governing law of this Agreement shall be the laws of the State of California, without regard to its conflict of laws provisions. If, for any reason, arbitration is not available or enforceable, the Parties submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, and waive any objection to such venue and jurisdiction. Each party waives any right to a jury trial in any action or proceeding arising out of or related to this Agreement.
9. Indemnification. Customer shall indemnify Everytable and its affiliates from claims, damages, and expenses, including attorneys' fees, arising from: (a) Customer's breach of agreement terms; (b) Customer’s non-compliance with laws; and (iii) negligent acts by Customer or its agents.
10. Insurance. Customer must maintain Commercial General Liability Insurance, including bodily injury, property damage, products, personal and advertising injury, and completed operations, of not less than $1,000,000 per incident and $2,000,000 in aggregate. This insurance must provide coverage for all claims that may arise from performance of the Agreement or completed operations. Everytable maintains Commercial General Liability Insurance with the same limits, a Commercial Automobile Liability Insurance with a limit of $1,000,000 per incident and an Umbrella Insurance policy with a limit of $5,000,000 of aggregate excess coverage.
11. General. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of the Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement. No waiver by Everytable of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Everytable. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Everytable reserves the right to amend or modify these Terms and Conditions at any time, at its sole discretion. Continued use of the services following such notice constitutes acceptance of the revised Terms and Conditions by the Customer. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each Party.
