Effective Date: Jan 26, 2022
This Exhibit defines the General Terms, Conditions and Definitions of the Master Subscription Services Agreement between Customer and Contractor (the “Master Agreement”). Capitalized terms used herein and not defined shall have the meaning ascribed to them in the Agreement
1. Definitions. When used throughout this Agreement, the following capitalized terms will have the meanings assigned to those terms in this Section.
1.1. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an Authorized User’s identity and authorization to access and use the Subscription Services.
1.2. “Affiliates” means any entity controlling or controlled by or under common control with a Party, where “control” is defined as the ownership of more than fifty percent (50%) of the equity or other voting interests of such entity or the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.
1.3. “API’s” – means the current licensed or public versions of the functions and procedures to access available data of the Service.
1.4. “Authorized User(s)” has the meaning set forth in Section 2.2 (License and Authorized Users) of the Agreement.
1.5. “Business Day” means Monday through Friday, excluding legal holidays observed by the United States Government.
1.6. “Buyer” means a business or individual that purchases products or services from Customer through the Subscription Service or otherwise interacts with Customer through the Subscription Service.
1.7. “Buyer Information” means the information, data and other content provided by the Buyer and collected by the Service.
1.8. “Content” has the meaning set forth in Section 2.4.
1.9. “Contractor Materials” means the Software, Specifications, Documentation and Contractor Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Contractor or any subcontractor in connection with the Subscription Service or otherwise comprise or relate to the Subscription Service or Contractor Systems. For the avoidance of doubt, Contractor Materials include Resultant Data and any information, data, or other content derived from Contractor’s monitoring of Customer’s access to or use of the Subscription Service, but do not include Customer Data.
1.10. “Contractor Resources” means any of Contractor’s employees, representatives, agents, and permitted subcontractors who may act on behalf of, or otherwise represent, Contractor in providing the Products and/or the Subscription Service.
1.11. “Contractor Systems” means the information technology infrastructure used by or on behalf of Contractor in providing the Subscription Service, including all computers, Software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Contractor or through use of third-party services.
1.12. “Customer” means Customer and any Participating Franchisees, individually and collectively.
1.13. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Subscription Service. For the avoidance of doubt, Customer Data does not include Resultant Data, or any other information reflecting the access or use of the Subscription Service by or on behalf of Customer, any Authorized User or Buyer.
1.14. “Customer SaaS Manager” is the named individual responsible for knowing, understanding and communicating to all necessary personnel such as internal support liaisons, training leads, store managers and regional staff the day-to-day operational policies and procedures relating to Subscription Service.
Additionally the SaaS Manager will serve as the primary point of contact for support issues and resolution procedures as defined in the Service and Support Agreement.
1.15. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
1.16. “Documentation” means all written instructions, user and technical manuals, reference guides, training materials, release notes, installation notes, descriptions, specifications, and any other materials, in paper, electronic or any other form, that describe the requirements, features, functions, support, maintenance and/or use of the Products and the Subscription Service.
1.17. “Fees” means the compensation payable to Contractor for the Products and Subscription Service provided to Customer pursuant to Exhibit A(Fees), of this Agreement and any Orders.
1.18. “Force Majeure Event” has the meaning set forth in Section 10.4.
1.19. “Hardware” means the tangible computer equipment, peripherals and related parts sold or licensed (as applicable) to Customer by Contractor pursuant to this Agreement and any Orders.
1.20. “Intellectual Property Right” means any patent rights, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights, whether those rights have been filed or registered under any statute or are protected or protectable under applicable law.
1.21. “Location” means an instance of the Subscription Service, and is referred to with a Service ID from Contractor.
1.22. “Loyalty Member” means a Buyer who is a member of the loyalty program and has completed one or more transactions. A Location’s Loyalty Members includes all Loyalty Members who have transacted at that Location.
1.23. “Loyalty and Gift Card Data” means Buyer join date, totals for loyalty points earned and spent, Gift Card purchase date and balance.
1.24. “Order” refers to any Subscription Service Order and may be used interchangeably with “Subscription Service Order.”
1.25. “Participating Franchisee” means any Customer franchisee that is registered by the Customer SaaS Manager in Contractor’s online registration system for purpose of allowing such Franchisee to purchase or license Products, as applicable, and to receive access to and use of the Subscription Service under an Order which is subject to the terms and conditions of this Agreement.
1.26. “Parties” means Contractor and Customer and “Party” means either of them individually.
1.27. “Personal Information” means and includes the names, and mobile numbers of Customer employees, which information is collected and stored by Contractor for purposes of issuing Access Credentials, and any information that does or can identify a specific individual, whether a Customer employee or a Buyer, or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, and all rules and regulations issued under the foregoing.
1.28. “Personally Identifiable Information” or “PII” means any representation of information that permits the identity of an individual to whom the information applies to be reasonably inferred by either direct or indirect means as defined by US Department of Labor “Guidance on the Protection of Personal Identifiable Information” and the California Consumer Privacy Act (CCPA).
1.29. “Products” means Hardware and/or Software provided to Customer or any Participating Franchisee by Contractor pursuant to any Order.
1.30. “Resultant Data” means information, data and other content related to the use of the Subscription Services by Customer, any Authorized User or Buyer.
1.31. “Software” means, unless expressly indicated otherwise herein or in any Subscription Service Order, only the machine-readable object code version of a computer software program, and all Documentation relating thereto.
1.32. “Specifications” means the specifications for the Subscription Service set forth in the Subscription Service Order, and the Documentation and has the meaning set forth in Exhibit D (Service and Support Agreement) referenced hereto.
2. License and Restrictions.
2.1. Purpose and Participating Franchisees. This Agreement sets forth the terms and conditions under which Contractor agrees to license to Customer and its Participating Franchisees the access and use of the Subscription Service, as described in one or more Subscription Service Orders. Any Participating Franchisee may issue an Order under this Agreement, and in that case, all references to “Customer” in this Agreement will refer to the Participating Franchisee executing that Order. Each Order will be in substantially the form of Exhibit C attached hereto and will be signed by the Customer. Each Subscription Service Order will set forth: (a) a detailed description of the specific Products and Subscription Service to be provided by Contractor; (b) the Term of such Subscription Service; (c) the Fees for such Products and Subscription Service; (d) any Specifications; and (e) any additional material terms.
2.3. License Restrictions. Except as expressly permitted in the Documentation, the Specifications, the Order or applicable law, Customer’s use of the Subscription Service shall not: (i) incorporate any robot, spider, scraper, headless browser or other automated means to gather data from Subscription Service; (ii) attempt to access any data not provided in the licensed API’s or normal use of the service (iii) include any actions that would interfere with the proper working of the Subscription Service or prevent access to or use of the Subscription Service by Contractor’s other customers, (iv) involve the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm or any illegal activity, (v) include call center or service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single Authorized User or Device login, or time-sharing of the Subscription Service. (h) conduct any penetration or vulnerability testing on the Service or Contractor’s network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the API, Software, or Services.
In addition, Customer shall not provide Content (as defined in Section 2.4) or otherwise post, transmit, distribute, or disseminate through the Subscription Service any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; or (f) in Contractor’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Subscription Service.
Customer shall not and shall not knowingly permit any third party to copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Service or any part thereof or otherwise attempt to discover any source code of the Products or modify the Subscription Service in any manner or form unless expressly allowed in the Documentation or by Contractor in writing.
Customer will not export, ship, transmit or re-export the Products in violation of any applicable law or regulation, including, but not limited to, Export Administration Regulations issued by the U.S. Department of Commerce.
2.4. Ownership of Customer Data – Customer owns all Customer Data and grants Contractor a non-exclusive, royalty-free worldwide license including a license to store, record, transmit maintain and display Customer Data for its business purposes.
2.4.1. Additional Restrictions Related to Use of Customer Data and the Subscription Service; Buyer Transaction Information; Payment and Buyer Information and Communications. The Subscription Service may include functionality for uploading or providing photos, logos, menus, employee name and phone numbers, hourly wages, sales tax rates and other materials or information (“Content”) as part of Customer Data. Contractor takes no responsibility and will incur no liability for the substance of any Content. Contractor shall not sell, distribute or transfer Content to any third party except as expressly permitted under this Agreement.
2.4.2. Buyer Transaction Information. The Subscription Service may collect Buyer Information including name, contact information, feedback, offer redemption, payment details, e-receipt, order and related information (“Buyer Transaction Information”) and Contractor shall have a non-exclusive, royalty-free worldwide license including a license to store, record, transmit maintain and display Buyer Transaction Information for its business purposes. Customer may use the Subscription Service to view and access shared Buyer Transaction Information, as made available in the Subscription Service, upon payment of applicable Fees for such services as specified in Exhibit A (Fees) and according to Buyer Information privacy preferences.
Buyer’s Information must be entered by Buyer on the appropriate space displayed on the applicable Customer or Buyer device; Customer employees are not permitted to add or modify any Buyer Information on behalf of a Customer, unless requested by the Buyer.
2.4.3. Payment Transactions. All debit and credit transactions shall be processed by a third-party payment gateway service provider selected by Customer from Contractor’s current approved provider list. Contractor shall use the APIs provided by payment provider service in an approved manner. IT IS THE RESPONSIBILITY OF THE PAYMENT SERVICE PROVIDER SELECTED BY CUSTOMER TO ENCRYPT AND SECURE ALL SENSITIVE CARD DATA, INCLUDING: Primary Account Number (PAN), full track data, card verification codes and values (CAV2, CID, CVC2, CVV2), and PINs and PIN blocks, of credit or debit cards. Contractor shall have no liability whatsoever to Customer or Buyers for such transactions or any inadvertent disclosure or unauthorized access to any such sensitive information.
2.4.4. Communications. Customer consents to accept and receive communications from Contractor, including e-mail, text messages, calls, and push notifications to the mobile telephone number and or email Customer provides to Contractor. Standard message and data rates applied by Customer’s mobile phone carrier may apply to the text messages Contractor sends to Customer and Customer may opt-out of receiving communications by following the unsubscribe options Contractor provides to Customer and Customer acknowledges that opting out of receiving communications may impact Customer’s use of the Subscription Service. Message sending fees are set forth in Exhibit A (Fees).
2.5. Access and Hosting. Unless a Subscription Service Order provides otherwise, the Subscription Service will include each of the following:
2.5.1. Hosting of the Software and the Subscription Service such that they are designed to be available to Authorized Users on a twenty-four (24) hour per day, seven (7) days per week basis (“24 x 7 basis”).
2.5.2. Providing Contractor’s standard customer support services, including providing Updates for the Products and the hosted Software, as part of the Subscription Service;
provided, however, in the case of each of subsections 2.5.1, 2.5.2, they shall be subject to the following: (a) contractor may perform maintenance on the Services from time to time which may result in service interruptions, delays, errors, or bugs. Contractor will not be liable for any such interruptions, delays, errors, or bugs. (b) Subscription Service downtime or degradation due to Force Majeure Events, (c) any other circumstance beyond Contractor’s reasonable control, including Customer’s or any Authorized User’s use of Third-Party Services (as defined in Exhibit D (Service and Support Agreement) ) or the use of the Subscription Services other than in compliance with the express terms of this Agreement and the Specifications; and (d) any suspension or termination of Customer’s or any Authorized User’s access to or use of the Subscription Services as permitted by this Agreement.
2.6. Purchase; Delivery and Installation Terms. To access the Subscription Services, Customer must utilize Contractor’s cloud-hosted service with certified printers, cash drawers and credit card readers or purchase Contractor’s Local Cloud device and necessary Hardware, including pre-configured printers, and network equipment from Contractor for the Fees set forth in the applicable Order, or in Exhibit A(Fees) if not detailed in the Order. The Customer Obligations for Installation and Support are included in Exhibit D (Service and Support Agreement) and the Hardware Policy and Limited Warranty are set forth in Exhibit F referenced hereto.
2.7. Installation requirements for support. Customer is responsible for the installation of Hardware and purchasing all recommended equipment, including iPads, cash drawers, and payment terminals necessary to operate the Subscription Service, with the Installation requirements outlined in Exhibit D (Service and Support Agreement) .
2.8. Training. Customer may access training materials available at (URL) and (URL). Customer acknowledges these materials are confidential and shall not be shared with or communicated to any third party. For an additional Fee as detailed in the applicable Order, or in Exhibit A (Fees) if not detailed in the Order, Contractor may provide training to Authorized Users.
2.9. Data Center Providers. As of the Effective Date, Contractor uses IBM SoftLayer (“SoftLayer”), and Amazon Web Services (“AWS”) as hosting service providers for the Subscription Service. During the Term of this Agreement, Contractor may change data centers or the hosting provider of the Subscription Service, provided the new data center and/or hosting provider is a top-tier provider offering the same or better level of service as provided by existing providers.
2.10. Backup / Encryption and Recovery of Customer Data; Data Access and Export. The Subscription Service includes secure, fault-tolerant replication, backup and recovery of Customer Data during the Term of this Agreement. Notwithstanding the foregoing, the Subscription Service does not replace the need for Customer to maintain regular data backups or redundant data archives for financial, accounting and tax purposes, and for access of data beyond the Term of this Agreement. Contractor provides an application program interface (API) to Customer for purposes of exporting daily sales accounting information to bookkeeping software or service for access and storage on or off Customer premises. CONTRACTOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
2.11. Disaster Recovery. During the Term of this Agreement, Contractor shall maintain and comply with a reasonably written disaster recovery and business continuity plan (“Disaster Recovery Plan”). The Disaster Recovery Plan will include procedures no less protective than industry standard, and Contractor will update the Disaster Recovery Plan as the industry standard changes.
2.12. Service and System Control. Contractor has and will retain sole control over the operation, provision, maintenance and management of the Subscription Services and Contractor Materials, including the: (a) Contractor Systems; (b) Location(s) where any of the Subscription Services are performed; (c) selection, deployment, modification and replacement of the Software; and (d) performance of Subscription Service support services and Subscription Service maintenance, updates, corrections and repairs.
2.13. Customer Obligations.
2.13.1. Customer SaaS Manager. Customer shall, throughout the Term of this Agreement, maintain within its organization a service manager to serve as Customer’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Subscription Service (the “Customer SaaS Manager”) as well as serve as the primary point of contact for support issues and resolution procedures as defined in the Service and Support Agreement (URL).
2.13.2. Account Registration and Suspension. Each Participating Franchisee must create an account with Contractor to use the Subscription Services and deliver such information as reasonably requested by Contractor for purposes of setting up the account. The Participating Franchisee must provide accurate and complete contact information as requested by Contractor and ensure all such information is kept current. Contractor reserves the right to suspend or terminate the Subscription Services of any Customer or Authorized User who provides inaccurate, untrue or incomplete information or who fails to comply with the account registration and information requirements or who materially breaches this Agreement or any Order.
2.13.3. Systems and Cooperation. Customer shall at all times during the Term of this Agreement: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Subscription Service is accessed or used; (b) provide Contractor personnel with such access to Customer Systems as is reasonably necessary for Contractor to provide the Subscription Service; and (c) provide all cooperation and assistance as Contractor may reasonably request to enable Contractor to exercise its rights and perform its obligations under and in connection with this Agreement. Customer agrees to timely implement any Updates made available to Customer by or on behalf of Contractor.
2.13.4. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to the private network described in Exhibit D (Service and Support Agreement), or unauthorized use of the Subscription Service including remote access; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Subscription Service. Unauthorized remote access to Services is forbidden. Customers who have licensed remote access are responsible for all remote activity and should therefore use heighted access and security safeguards to prevent unauthorized access.
2.13.5. Effect of Customer Failure or Delay. Contractor is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
2.13.6. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.3, Customer shall, and shall take commercially reasonable steps to cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Subscription Service and Contractor Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Contractor of any such actual or threatened activity.
3. Term; Renewal and Termination.
3.1. Term and Renewal. This Agreement shall commence on the Effective Date and shall continue until terminated as defined in the section 1.9 of the MSA.
The Term of all Orders under this Agreement shall be co-terminus, whether executed concurrently with this Agreement or subsequently by Customer and all Participating Franchisees. Any such renewal of an Order by Customer shall automatically renew all Orders then in effect by any Participating Franchisees without any action on the part of the Participating Franchisees. As used herein, the Initial Term, and any Renewal Terms of any Orders shall be collectively referred to herein as the “Term.”
3.2. Termination of Agreement and Orders for Material Breach.
3.2.1. General Termination of Agreement and Orders by Customer or Contractor for Material Breach. This Agreement and/or any Orders may be terminated immediately by either Customer or Contractor effective on written notice if the other Party (a) becomes insolvent, files a voluntary petition in bankruptcy, is adjudicated bankrupt, has a receiver appointed for the operation of its business, makes an assignment for the benefit of creditors, abandons its business or makes a material liquidation of its assets, or (b) materially breaches this Agreement or any Order, and fails to cure the material breach within thirty (30) days of receiving written notification of such material breach.
Should Contractor allege that a Participating Franchisee is in material breach of this Agreement or an Order, Contractor shall provide written notice to both the Participating Franchisee and Customer of the alleged material breach. Customer shall cure any non-payment within thirty (30) days.
Customer and any Participating Franchisees shall have the right to close any of its Locations for business reasons, and Customer may replace, any Participating Franchisee at any time for any reason effective upon written notice to Contractor and execution of an Order by the replacement Participating Franchisee and Contractor; provided, however, in no circumstance, shall Contractor be required to refund any Fees paid in advance as a result of such closure or replacement.
3.3. Nonrenewal. Customer or Contractor may terminate all Orders, whether signed by Customer or a Participating Franchisee, upon the end of Initial Term or any Renewal Term upon providing Contractor and Contractor with one hundred eighty (180) days prior written notice.
3.4. Effect of Termination or Expiration. Upon expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
3.4.1. All rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
3.4.2. Contractor may disable all Customer and Authorized User access to the Subscription Service;
3.4.3. Customer shall promptly pay to Contractor all undisputed amounts due and payable hereunder or thereunder;
3.4.4. Customer and Contractor shall promptly return to the other, or certify the destruction thereof, of any of the following of the other party held in connection with the performance of this Agreement: all Confidential Information and any other data, programs, and materials delivered to the other Party for purposes of performing this Agreement that were licensed and not purchased. Customer and Contractor will be entitled to retain copies of Confidential Information and/or Customer Data to the extent required by applicable law or regulation or as maintained in the Party’s file systems, archives and disaster recovery systems; provided, that for so long as they retain any Confidential Information, they shall employ reasonable security measures and shall exercise reasonable care in protecting the confidentiality of such information as it does in protecting its own information similarly recorded or saved.
4. Service and Support.
4.1. Support Service. Subject to the terms and conditions of this Agreement, Contractor shall use commercially reasonable efforts to provide the Subscription Service as described in Exhibit D (Service and Support Agreement).
5. Fees and Billing.
5.1. Fees. Customer shall be responsible for and shall pay to Contractor the Fees set forth in Exhibit A (Fees), and Fees as further described in any Order, subject to the terms and conditions contained therein.
5.2. Invoice Procedures. Except as set forth in Section 5.3, Contractor shall bill to Customer the sums due pursuant to this Agreement or any Order by invoice, which invoice shall contain: (a) Customer purchase order number, if any, and invoice number; (b) description of Subscription Service and Products purchased by Customer; (c) the Fees or portion thereof that is due; and (d) total amount due.
5.3. Billing. Fees due for the Subscription Service shall be billed annually at the listed prices or monthly for an additional fee according to Exhibit A (Fees).
In either case, Fees must be paid in advance of the service month via recurring electronic bank transfer (ACH). Automatic payment will be scheduled mid-month prior to service month. Full payment must be received prior to the start of service month or Contractor is entitled to receive ACH payment from brand Headquarters or suspend service at Contractor’s sole discretion. Incomplete payments due to insufficient funds or other reasons may result in an additional recovery fee. Hardware and associated setup and implementation fees must be paid prior to shipment. SMS, optional Marketing and other variable fees shall be paid upon receipt of invoice or via automatic ACH. All other Fees shall be invoiced as incurred and paid in accordance with Section 5.4. Subscription Service for all features are deemed to begin the earlier of 14 days after hardware shipment, or first use of the software. Customers who activate Subscription Services mid-month will be required to pay for the current month and the subsequent month of Subscription Service
5.4. Payment. Except as set forth in Section 5.3, Customer shall pay all Fees on receipt of invoice therefor. Customer shall make all payments hereunder in US dollars via electronic payment such as ACH. All amounts payable to Contractor under this Agreement shall be paid by Customer to Contractor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
In the event that Contractor inadvertently did not provide Customer with an invoice, or Customer did not otherwise receive an invoice from Contractor, Customer is still responsible for paying any Fees and/or other amounts due based on Services provided. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month (or 19.56% annually) on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs.
5.5. Taxes. Contractor’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local government or regulatory authority on amounts payable by Customer hereunder. Contractor will be responsible for any taxes imposed upon Contractor based upon Contractor’s income, gross receipts or assets, and payroll taxes in respect of Contractor’s employees.
6. Confidentiality and Information Security.
6.1. Non-Disclosure of Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 6.1.1, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all Contractor Materials are the Confidential Information of Contractor and the financial terms of this Agreement are the Confidential Information of each of the parties.
6.1.1. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.1.2. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
18.104.22.168. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
22.214.171.124. except as may be permitted by and subject to its compliance with Section 6.1.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6.1.2; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.1;
126.96.36.199. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
188.8.131.52. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
184.108.40.206. ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 6.1.
6.1.3. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 6.1 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
6.1.4. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.1.2; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.1.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment
6.2. Contractor Systems and Security Obligations. Subject to the provisions of Section 2.4.3, Contractor will employ security measures in accordance with applicable industry practice. Payment card data which are entered in processors’ hosted payment pages, iframes, SDKs or otherwise secured with processor’s technology are considered secure. If Contractor becomes aware, or reasonably believes, that Customer Data may have been accessed or acquired by an unauthorized party, Contractor will promptly notify Customer SaaS Manager. Contractor will fully cooperate with Customer to investigate and remediate any such unauthorized access to or acquisition of Customer Data. To the extent that any security incident is attributable to the acts or omissions of the Customer, Customer shall bear all costs associated with remedying the security incident and complying with its legal obligations under the applicable Data Privacy and Security laws.
6.3. California Consumer Privacy Act (CCPA), PII, and Data Privacy In order to comply with California Consumer Privacy Act (CCPA) of 2018 and to provide high standards of data privacy, including protection of Personally Identifiable Information (PII), Contractor may, at its sole discretion, limit use of third party API’s and data sharing to services which utilize tokenized and secure communication mechanisms that do not contain, solicit or expose PII data. Contractor may tokenize or encrypt PII data prior to data export or transmission for enhanced data privacy. Contractor may assist third parties by providing a secure API for direct communication where the recipient is identified by a token that does not contain PII.
7. Representations, Warranties and Covenants.
7.1. Mutual Representations, Warranties and/or Covenants. Customer and Contractor represent, warrant and/or covenant that:
7.1.1. it is duly incorporated, validly existing, and in good standing under the laws of its state of incorporation or filing;
7.1.2. it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
7.1.3. this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms;
7.1.4. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement, when executed and delivered, constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms; and
7.1.5. it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement.
7.2. Additional Contractor Representations, Warranties and Covenants. Contractor represents, warrants and covenants to Customer that Contractor will perform its services hereunder using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
7.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Contractor that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Contractor and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, otherwise violate any intellectual property rights or any privacy or otherwise rights of any third party or violate any applicable laws, regulations or statutes.
7.4. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 AND SECTION 7.2, ALL SERVICES AND CONTRACTOR MATERIALS ARE PROVIDED “AS IS” AND CONTRACTOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CONTRACTOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, SUITABILITY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CONTRACTOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CONTRACTOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR PLACE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8. Limitation of Liability and Exceptions.
8.1. Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL CONTRACTOR OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, REGARDLESS OF WHETHER CONTRACTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2. Cap on Monetary Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF CONTRACTOR AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE TIMES THE TOTAL AMOUNT OF SUBSCRIPTION SERVICE PAID TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.3. Exceptions. The exclusions and limitations in Section 8.1 and Section 8.2 do not apply to Contractor’s obligations under Section 9 or liability for Contractor’s gross negligence or willful misconduct.
9.1. Contractor General Indemnity. Contractor, as “Indemnitor,” agrees to indemnify, defend, and hold each Customer and their respective employees, directors, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee” and collectively, the “Customer Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, fines, penalties, and/or judgments, including reasonable attorneys’ fees, costs, and expenses incidental thereto (“Losses”) incurred by, which may be suffered by, accrued against, charged to, or recoverable from any Customer Indemnitee, by reason of any third party (other than an Affiliate of the Customer Indemnitee) proceeding (including proceedings under the U.S. Bankruptcy Code), action, regulatory action, lawsuit, and/or claim (collectively, “Claim(s)”) to the extent arising out of or resulting from (a) infringing the copyright or misappropriating the trade secret rights of such third party, or (b) willful misconduct of Contractor or its Contractor Resources, during the performance of this Agreement and any Orders.
9.2. Contractor Intellectual Property Right Indemnification. Contractor, as “Indemnitor,” agrees to indemnify, defend, and hold the Customer Indemnitees harmless from and against all third-party Claims and Losses arising out of or resulting from a third-party Claim that the Subscription Service (other than the Customer’s Intellectual Property) infringes or misappropriates any patent, copyright, trade secret, trademark, or other Intellectual Property Right of a third party. In the event that Contractor is enjoined or Contractor reasonably believes that the Products or the Subscription Service is likely to become the subject of such a Claim, then Contractor shall, at its expense: (a) obtain for Customer the right to continue using such Products and/or the Subscription Service (b) replace or modify the Products and/or Subscription Service so that it does not infringe upon or misappropriate such Intellectual Property Right and is free to be delivered to and used by Customer with substantially similar functionality and performance; or, (c) in the event that Contractor is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Contractor shall terminate the affected Orders and promptly reimburse to Customer any prepaid Fees for which the Products and/or Subscription Service have not been rendered or provided. The foregoing obligations of Contractor does not apply to any Claim or Losses to the extent caused by, arising out of or relating to any: (a) access to or use of the Subscription Service or Contractor Materials in combination with any hardware system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Contractor; (b) modification of the Subscription Service or Contractor Materials other than by on or on behalf of Contractor or with Contractor’s written approval in accordance with Contractor’s written specifications; (c) failure to implement timely any modifications, Updates, replacements or enhancements made available to Customer by Contractor; or (d) any act, omission or other matter described in Section 9.3, whether or not the same results in any Claim against or Losses by any Contractor Indemnitee. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND CUSTOMER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SUBSCRIPTION SERVICE AND CONTRACTOR MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
9.3. Customer Indemnity. Customer, as “Indemnitor,” agrees to indemnify, defend and hold Contractor and its respective employees, directors, officers, agents, permitted successors and permitted assigns (each, a “Contractor Indemnitee” and collectively, the “Contractor Indemnitees”) harmless from and against any and all Losses incurred by, which may be suffered by, accrued against, charged to, or recoverable from any Contractor Indemnitee, by reason of third party Claims (other than an Affiliate of the Contractor Indemnitee) to the extent arising out of or resulting from (a) Customers use of the Services (b) the Customer Data or any other materials or information provided by or on behalf of Customer or any Authorized User, including Contractor’s compliance with any specifications provided by or on behalf of any Customer; (c) exposure or transmission of Buyer Data or any Personally Identifiable Information (PII) due to authorized use or unauthorized use of the Service (d) alleged or actual violations of California Consumer Privacy Act (CCPA) or other data privacy statues (e) Customer’s or it’s employee’s reliance on any report or other information generated though the service; (f) any tax assessment (g) any trademarks or service marks other than Contractor’s Intellectual Property, or any use thereof, infringes the Intellectual Property Rights of a third party, or has caused harm to a third party; (h) Customer’s violation of applicable law; or (i) any grossly negligent act, error or omission, or willful misconduct by any Customer, Buyer, any Authorized User or any third party on behalf of Customer, or any Authorized User in connection with this Agreement.
9.4. Indemnification Procedures. The foregoing indemnification obligations are conditioned upon prompt receipt by an Indemnitor of a threat of any Claim, or a notice of the commencement, or filing of any Claim against any Indemnitee. Customer or Contractor, as applicable, shall give notice thereof to the applicable Indemnitor; provided, however, that failure to give or delay in giving such notice to the Indemnitor shall not relieve the Indemnitor of any liability it may have to the Indemnitee except to the extent that the Indemnitor demonstrates that the defense of such Claim is prejudiced thereby. The Indemnitees shall not independently defend or respond to any such Claim; provided, however, that: (a) the Indemnitees may defend or respond to any such Claim, at the Indemnitor’s expense, if the Indemnitees’ legal counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against the Indemnitees; and (b) the Indemnitees shall have the right, at their own expense, to monitor the Indemnitor’s defense of any such Claim. The Indemnitor shall have sole control of the defense and of all negotiations for settlement of such Claim. At the Indemnitor’s request, the Indemnitees shall cooperate with the Indemnitor in defending or settling any such action; provided, however, that the Indemnitor shall reimburse the Indemnitees for all reasonable out-of-pocket costs incurred by the Indemnitees (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation and the Indemnitor may not settle any Claim without the Indemnitees’ prior written consent unless such settlement includes a complete and final release of liability and Losses against all Indemnitees and does not impose any obligations on any Indemnitees.
10. Miscellaneous Provisions.
10.1. Publicity. Customer grants Contractor a nonexclusive, royalty free right and license to use and display Customer’s Marks and other indica on its website and marketing collateral, or to otherwise identify Customer as current or former customer of Contractor.
10.2. Independent Contractor. Contractor represents and warrants that it is an independent contractor with no authority to contract for any Customer or in any way to bind or to commit a Customer to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the Customer. Under no circumstances shall Contractor hold itself out as or be considered an agent, employee, joint venture, or partner of a Customer, and each Customer shall have no duty to provide or maintain any insurance or other employee benefits on behalf of Contractor or its employees. No other document, agreement, circumstance or understanding shall be construed to entitle Contractor or Contractor’s employees to any insurance or benefits of any kind from a Customer
10.3. Notices. Unless otherwise provided, notices hereunder shall be in writing and shall be deemed effectively given (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, in each case with confirmation of transmission, if sent during addressee’s normal business hours, and on next business day, if sent after the addressee’s normal business hours; and (d) on the fourth (4th) Business Day after being sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed, to the offices of the respective Parties (attention: LEGAL) at the addresses set forth in the preamble to this Agreement, or as changed through written notice to the other Party hereunder. Notices to any Participating Franchisees shall be sent to the address provided by the Participating Franchisee in the Order with a copy to Customer.
10.4. Force Majeure. Neither Party shall be liable for delays or any failure to perform any term of this Agreement (except for any obligations to make payments) due to causes beyond its reasonable control (a “Force Majeure Event”). Such Force Majeure Events include, but are not limited to, acts of God, terrorism, fire, explosion, flood, or other natural catastrophe, acts, orders, or regulation, strikes or labor difficulties, or acts of terrorism, passage of law, statute, ordinance, regulation, order or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, in each case to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party will notify the other Party promptly upon the occurrence of any such Force Majeure Event and inform the other Party of its plans to resume performance.
10.5. Early Termination – if Contractor terminates this Agreement after a breach by Customer, or if Customer terminates this Agreement before the end of the Initial Term or any Renewal Term, customer agrees to pay an early termination fee of the amount equal to the greater of (i) $395.00 per Location, or (ii) the average monthly fees assessed to Customer under the Agreement multiplied by the number of months remaining in the then-current Initial Term or Renewal Term, as applicable. Customer agrees to pay the early termination fee immediately upon termination and authorizes Contractor to deduct the total amount from Customer’s account via electronic funds transfer such as ACH. Customer agrees that the early termination fee is not a penalty, but rather is reasonable in light of the financial harm caused by Customer’s early termination. Additionally, Customer agrees to pay Contractor (a) any unpaid invoice, and (b) any damages, losses, expenses, fees, fines and adjustment incurred by Contractor in connection with this agreement. In the event of early termination, any purchased hardware and/or set-up fees are non-returnable.
10.6. Survival. This Section 10.6, together with the confidentiality (Section 6.1), limitation of liability (Section 8), indemnity (Section 9), and each other provision of this Agreement that by its nature extends beyond the expiration or earlier termination of this Agreement, will survive and continue in full force and effect after this Agreement expires or is earlier terminated.
10.7. Assignment. A Party (“Assigning Party”) may, upon prior written notice to the other Party (“Non-assigning Party”) and at no additional charge to Assigning Party, assign this Agreement to (a) an Affiliate (only if (i) the Affiliate agrees in writing to be bound by the terms of this Agreement and (ii) the Assigning Party remains liable for its obligations under this Agreement); or (b) any entity that acquires all or substantially all of the Assigning Party’s assets or capital stock or results from one or more mergers or initial public offerings or any other corporate reorganization.
10.8. Succession. This Agreement will bind and inure to the benefit of each Party and its permitted successors, assigns, and delegates.
10.9. Governing Law; Jurisdiction and Venue. This Agreement will be interpreted under, and any disputes arising out of this Agreement will be governed by, the laws of the State of California, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to the interpretation or enforcement of this Agreement. Each Party irrevocably consents to the jurisdiction of the state and federal courts located in the State of California, USA, in connection with all actions arising out of or in connection with this Agreement, and waives any objections that venue is an inconvenient forum. Each Party further agrees that it will not initiate any action against the other Party in any other jurisdiction. Each Party agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in any other jurisdiction (including the appropriate courts of the jurisdiction in which the other Party is a resident or in which any property or an office of such Party is located) by suit on the judgment or in any other manner provided by law.
10.10. Waiver. A Party’s delay or failure to enforce or insist on strict compliance with any provision of this Agreement will not constitute a waiver or otherwise modify this Agreement. A Party’s waiver of any right granted under this Agreement on one occasion will not (a) waive any other right; (b) constitute a continuing waiver; or (c) waive that right on any other occasion.
10.11. Amendments. This agreement may be amended only be a written instrument signed by both Parties, which writing must refer to this Agreement. Any amendment to this Agreement that is contained in an Order will be effective only with respect to the Subscription Service described in that Order.
10.12. Conflicts. In the event of any conflict or inconsistency in the definition or interpretation of any term or provision set forth in this Agreement and an Order, such conflict or inconsistency shall be resolved by giving precedence to this Agreement, unless and to the extent the Order expressly states that a term or condition provided therein takes precedence over any contrary provision in this Agreement.
10.13. Counterparts and Delivery. This Agreement may be executed in counterparts. Each counterpart will be considered an original, and all of them, taken together, will constitute a single Agreement. Facsimile and electronic signatures will be deemed original signatures for all purposes under this Agreement. When properly signed, this Agreement may be delivered by facsimile or electronically, and any such delivery will have the same effect as physical delivery of a signed original.
10.14. Entire Agreement. This Agreement, and its attached and referenced exhibits, including any Orders, constitutes the entire agreement between the Parties and supersedes all previous representations, understandings, or agreements between the Parties as to the subject matter hereof.
10.15. Third Party Beneficiaries. Participating Franchisees are intended third party beneficiaries of this Agreement. Nothing in this Agreement gives any person other than Customer, Participating Franchisees and Contractor any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement, except those rights that inure to a successor or permitted assignee under this Agreement. The Parties may modify or terminate this Agreement without the consent of the Participating Franchisees.