TAP TO EAT, TAP TO EAT SOFTWARE/MOBILE AS A SERVICE AGREEMENT V.1

IMPORTANT-READ THIS TAP TO EAT SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”).  BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT (THE PROPOSAL) THAT INCORPORATES THIS AGREEMENT (THE “PROPOSAL DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT SIGN THIS SOFTWARE AS A SERVICE AGREEMENT

A.          Agreement Definitions
“You” and “your” refers to the individual or entity that has ordered software as a service from Tap To Eat, TTE (“Tap To Eat”) by executing the proposal document that accompanies and incorporates this Tap To Eat software as a service agreement (collectively, the “agreement”).   Software as a service consists of system administration, system management, and system monitoring activities that Tap To Eat performs for Tap To Eat Software Platforms, and includes the right to use the Tap To Eat Software Platforms, support services for such Tap To Eat Software Platforms, as well as any other services provided by Tap To Eat, as defined in the proposal document (collectively, the “services”).  The term “program documentation” refers to any program documentation as well as any other materials provided by Tap To Eat as part of the services.  The term “Tap To Eat software platforms” refers to the software products owned or distributed by Tap To Eat to which Tap To Eat grants you access as part of the services, including program documentation, and any program updates provided as part of the services.  The term “users” shall mean those individuals authorized by you or on your behalf to use the services, as defined in the proposal document.   The term “your data” refers to the data provided by you that resides in your services environment.  The term “proposal document” refers to the proposal document signed by the parties that accompanies and incorporates  this  software  as  a  service  agreement,  including  the  services  policies  and  any  other  document  referenced  or incorporated into the proposal document.

B.          Applicability of Agreement
This software as a service agreement is valid for the proposal document which this agreement accompanies.

C.          Rights Granted
Upon Tap To Eat’ acceptance of your proposal document and for the duration of the services term defined in the proposal document (On going), you and anyone who downloads the software application have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for business, personal or pleasure, and subject to the terms of the agreement.    The services are provided as described in, and subject to, the services policies referenced in the proposal document.
Upon the end of the agreement or the services thereunder, Tap To Eat will no longer maintain or update the features specified in the proposal document and the services shall terminate.  This software as a service agreement grants each location (Food truck or brick n mortar) the ability to receive orders and payment via the POS (Point of Sale System), as long as the payment terms defined in the proposal are being met by “You”.

D.          Ownership and Restrictions
Tap To Eat retain all ownership and intellectual property rights to the Tap To Eat software platform, its source code and its patent pending technology.  Tap To Eat retains all ownership and intellectual property rights to anything developed and delivered under the agreement. Tap To Eat retains all ownership rights and intellectual property rights of all data entered into the Tap To Eat Platform. Third party technology that may be appropriate or necessary for use with some Tap To Eat programs is specified in the program documentation or proposal document as applicable.  Your right to use such third party technology is governed by the terms of the third party technology license agreement and not governed by Tap To Eat.
You may not:
•     remove or modify any source code or any notice of Tap To Eat or its licensors’ proprietary rights;
•        modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Tap To Eat;
•        license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Tap To Eat programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
The rights granted to you under the agreement are also conditioned on the following:
•        You, your customers, your potential customers or anyone who downloads the software application has the right to use the services as defined in the proposal.

E.          Warranties, Disclaimers and Exclusive Remedies
Tap To Eat warrants that the services will perform in all material respects in accordance with the Features referenced in the proposal document.   If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to Tap To Eat no later than five business days after the last day of that particular month.
TAP TO EAT  DOES  NOT  GUARANTEE  THAT  THE  SERVICES  WILL  BE  PERFORMED  ERROR-FREE  OR UNINTERRUPTED, OR THAT TAP TO EAT WILL CORRECT ALL SERVICES ERRORS.  YOU ACKNOWLEDGE THAT TAP TO EAT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. TAP TO EAT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, TAP TO EAT WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED.   THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO TAP TO EAT, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND TAP TO EAT’ SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

F.          Indemnification
If a third party makes a claim against either you or Tap To Eat (“Recipient” which may refer to you or Tap To Eat depending upon which party  received  the  Material),  that  any  information,  design,  specification,  instruction,  software,  service,  data,  or  material (“Material”) furnished by either you or Tap To Eat (“Provider” which may refer to you or Tap To Eat depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
•      notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
•    gives the Provider sole control of the defense and any settlement negotiations; and
•    gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material.  If such return materially affects Tap To Eat’ ability to meet its obligations under the relevant proposal, then Tap To Eat may, at its option and upon 30 days prior written notice, terminate the proposal.  The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient.  The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink).  Tap To Eat will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Tap To Eat.  Tap To Eat will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights.  Tap To Eat will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement.   This section provides the parties’ exclusive remedy for any infringement claims or damages.

G.          Support Services
Support services provided under the agreement are specified in the services policies referenced in the proposal document.

H.           End of Agreement
Services provided under this software as a service agreement shall be provided for the period defined in the proposal document (Defined as ongoing) unless earlier terminated in accordance with the agreement.   The term of the services are collectively defined as the “services term.”   At the end of the services term, all rights to access or use the services, including the Tap To Eat programs listed in the ordering document, shall end. The service term, in accordance with the proposal, shall be ongoing on a month to month bases and continued participation in the service contract shall be based upon the payment of the service fee, as defined in the proposal.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable proposal document under which the breach occurred.  If Tap To Eat ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses.  If Tap To Eat ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses.  The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.

I.           Fees and Taxes
You agree to pay for all services ordered as set forth in the applicable proposal document. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Tap To Eat must pay based on the services you ordered, except for taxes based on Tap To Eat’ income.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the proposal document; however, the preceding does not relieve Tap To Eat of its obligation to deliver services that you have ordered   per the terms of the agreement.

J.          Nondisclosure
By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”).    We  each  agree  to  disclose  only  information  that  is  required  for  the  performance  of  obligations  under  the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Tap To Eat will protect the confidentiality of your data residing in the services environment in accordance with the Tap To Eat security practices specified in the services policies referenced in the proposal document.  Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.

K.          Entire Agreement
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL/Software application or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement.  It is expressly agreed that the terms of the agreement,  including  any Tap To Eat proposal document,  shall supersede  the  terms  in  any purchase  proposal  or  other  non-Tap To Eat document and no terms included in any such purchase order or other non-Tap To Eat document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted through Tap To Eat by authorized representatives of you and of Tap To Eat.

L.         Limitation of Liability
NEITHER  PARTY  SHALL  BE  LIABLE  FOR  ANY  INDIRECT,  INCIDENTAL,  SPECIAL,  PUNITIVE,  OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE.  TAP TO EAT’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR PROPOSAL, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TAP TO EAT FOR THE SERVICES UNDER THE PROPOSAL THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  ANY DAMAGE IN YOUR FAVOR AGAINST TAP TO EAT SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

M.          Other
1.   Tap To Eat is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
2.     You shall obtain at your sole expense any rights and consents from third parties necessary for Tap To Eat perform the services under the agreement.
3.     The agreement is governed by the substantive and procedural laws of Delaware and you and Tap To Eat agree to submit to the exclusive jurisdiction of, and venue in, counties in Delaware in any dispute arising out of or relating to the agreement.
4.     If you have a dispute with Tap To Eat or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to:  Tap To Eat, 1679 S. Dupont Highway, Dover, DE 19901, Attention: General Counsel, Legal Department. Tap To Eat may give notice applicable to Tap To Eat’ software as a service customer base by means of a general notice on the Tap To Eat portal for the services, and notices specific to you by electronic mail to your e-mail address on record in Tap To Eat’ account information or by written communication sent by first class mail or pre-paid post to your address on record in Tap To Eat account information.
5.    You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.  If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables, and if you decide to finance your acquisition of the services, you will follow Tap To Eat’ policies regarding financing.
6.     Except for actions for nonpayment or breach of Tap To Eat’ proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
7.     Tap To Eat may audit your use of the services.  You agree to cooperate with Tap To Eat’ audit and provide reasonable assistance and access to information.  Any such audit shall not unreasonably interfere with your normal business operations.
8.     The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it.  You understand that Tap To Eat’ business partners, including any third party firms retained by you to provide computer consulting services, are independent of Tap To Eat and are not Tap To Eat’ agents.

N.          Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party.  We both will use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 30 days, either of
us may cancel unperformed services upon written notice.  This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.

O.          Your Data
In performing the services, Tap To Eat will comply with the Tap To Eat Privacy Policy, which is available at http://taptoeat.com/privacy-policy/ and incorporated herein by reference.  The Tap To Eat Privacy Policy is subject to change at Tap To Eat’ discretion; however, Tap To Eat policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the services have been paid.  The services policies referenced in your proposal document specifies our respective responsibilities for maintaining the security of your data in connection with the services.
Tap To Eat  reserves  the  right  to  provide  the  services  from  locations,  and/or  through  use  of  subcontractors,  worldwide.  You agree to provide any notices and obtain any consents related to your use of the services and Tap To Eat’ provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information.  You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

P.          Restrictions on Use of the Services
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Tap To Eat under the agreement, Tap To Eat reserves the right to remove or disable access to any material that violates the foregoing restrictions.  Tap To Eat shall have no liability to you in the event that Tap To Eat takes such action. You agree to defend and indemnify Tap To Eat against any claim arising out of a violation of your obligations under this section.

Q.           Services Tools
Tap To Eat may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your Tap To Eat service requests.  The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service.  Data collected by the tools (excluding production data) may also be used to assist in managing Tap To Eat’ product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.

R.          Statistical Information
Tap To Eat may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name.  Tap To Eat retains all intellectual property rights in such information.

S.          Third Party Web Sites, Content, Products and Services
The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Tap To Eat is not responsible for any third party Web sites or third party content provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.

T.             Customer Reference
You agree (i) that Tap To Eat may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Tap To Eat on taptoeat.com for promotional purposes.

U. Right to Represent on Phone and World Wide Web

Your Authorize Tap To Eat and or it’s contractors to act as an authorized representative of your company. Specifically, you authorize Tap To Eat to edit and monitor your local listing on Google My Business (or any Google services), Apple Maps (Mapsconnect), Bing Maps (or any Bing Services), Yahoo Maps (or any Yahoo Services), Facebook, Yelp and Yelp affiliated Directories. Additionally, you authorize Tap To Eat to post your business listing to a variety of online listings to help market your business through new online sources. You authorize Tap To Eat to represent your business when communicating with the above listed internet and local listing companies or any additional online source used for the purpose of marketing your business.

You authorize Tap To Eat to integrate online ordering to your site as well as the internet services listed above. Additionally, you authorize Tap To Eat to change the listed phone number on the internet services above to a new number that is owned solely by Tap To Eat. You authorize Tap To Eat to receive phone calls on your behalf for the purpose of placing orders over the phone and educating your customers on how to place an order online or through the mobile app. Any calls related to other business operations will not be handled by Tap To Eat and will forwarded to you at the number you have provided Tap To Eat.