THIS SUBSCRIPTION SERVICES AGREEMENT AND THE EXHIBITS ATTACHED HERETO (COLLECTIVELY, THE "AGREEMENT") IS A LEGAL CONTRACT BETWEEN YOU ("YOU" OR "CUSTOMER," EITHER AN INDIVIDUAL OR THE ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT) AND FOODBOSS ("WE", "US", "FOODBOSS") WHICH GOVERNS YOUR PURCHASE AND USE OF THE SUBSCRIPTION SERVICES. YOU AND US ARE ALSO COLLECTIVELY REFERRED TO AS THE PARTIES. BY EXECUTING AN ORDER FORM OR ANY DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS 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 AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective as of the date of Your acceptance of this Agreement.
1.1. "Affiliate" is an entity that controls, is controlled by or shares common control with FoodBoss or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2. "Aggregated Data" means any non-personally identifiable, technical, statistical or analytical data gathered or generated directly by use of the Subscription Services, and which FoodBoss collects, gathers and aggregates periodically as part of its services. FoodBoss (its affiliates, licensors, partners and designated agents) may use this information to monitor and improve its products, services or to provide customized services or technologies to their customers. FoodBoss collects and uses this information in accordance with its privacy policies and in accordance with applicable data protection laws. Aggregated Data does not include Customer Data.
1.3. "Authorized End User" means any individual authorized, by virtue of such individual’s relationship to, or permissions from, Customer, to access the Services pursuant to Customer’s rights under this Agreement.
1.4. "Customer" means either you as an individual, or a corporate entity or other business organization to whom FoodBoss provides the Subscription Services for use by itself or by Authorized End Users.
1.5. "Customer Data" means all the data and/or information provided by Authorized End Users and/or Customer during the use of the Subscription Services, including all text, graphics, pictures, photos, profiles, reviews, messages, notes, and/or any other uploaded content, published or displayed on or through the Subscription Services, or transmitted to or shared with other users. Customer Data does not include any Aggregated Data.
1.6. "Order Form" means the document through which Customer orders and purchases FoodBoss Subscription Services under this Agreement. Order Forms hereunder must reference this Agreement and are incorporated by reference upon execution (i.e. signature) of both parties. Access to Subscription Services shall be made only against written Orders Forms expressly accepted by FoodBoss. At minimum, each Order Form shall specify: (a) a description of the Subscription Services covered by the Order Form, including start date of services, term of the subscription, number of User Licenses, etc.; (b) prices, including any applicable discounts, and any other charges and costs; and details such as billing and/or invoice address, and payment information; and/or (c) any additional information relevant to the Services contracted. In the event of any conflict between the terms and conditions of this Agreement and those of any Order Form, the terms and conditions of this Agreement shall control. No pre-printed or boilerplate terms of any purchase order issued by Customer to FoodBoss shall have any binding effect against FoodBoss. FoodBoss may refuse to accept any Order Form, in its sole discretion.
1.7. "Advertising Services" means additional and separate advertising service(s) not included in this Agreement, and that are geared towards promotion of the Customer’s products or service(s). Advertising Services are provided by FoodBoss based on the agreed upon terms of the insertion order.
1.8. "Subscription Services" means the hosted services provided by FoodBoss to Authorized End Users and/or Customers by means of accessing and using the features and functions of the FoodBoss applications, as contemplated in this Agreement.
1.9. "User License" shall mean a license with a unique user identification and password to grant access to a single named user to the Subscription Services, solely for the term such services are contracted.
2. ORDERING AND PURCHASES. Access to services and products provided by FoodBoss shall be made only against written Order Forms accepted by FoodBoss. This Agreement contemplates the execution by the parties of one or more Order Forms. Order Forms may be entered under this Agreement by and between (a) FoodBoss or an Affiliate of FoodBoss; and (b) the Customer or an Affiliate of Customer. With respect to an Order Form, the terms "FoodBoss" and "Customer" as used in this Agreement will be deemed to refer to the entities that execute that Order Form, the Order Form will be considered a two party agreement between such entities, and FoodBoss will separately invoice the Customer named in the Order Form for the associated subscription fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Order Forms.
3. SUBSCRIPTION SERVICES.
3.1. Access Rights. Subject to the terms of this Agreement, FoodBoss hereby grants to Customer a worldwide, nonexclusive, non-transferable, non-sublicensable, limited license for Customer and its Authorized End Users to access and use the Subscription Services up to the number of User Licenses acquired by Customer, in accordance with the terms of this Agreement, and solely in connection with Customer’s internal business purposes. Customer acknowledges and agrees that any act or omission of its Authorized End Users in connection with use of, or access to, the Subscription Services, which act or omission would constitute a breach of this Agreement if undertaken by Customer, shall be considered a material breach by Customer hereunder.
3.2. User Licenses. The number of Users Licenses being purchased will be set forth in an Order Form. User Licenses are for designated users and cannot be shared or used by more than one Authorized End User, but may be redesignated to new users, as necessary, provided such re-designation is not used to circumvent the prohibition on sharing User Licenses. Unless otherwise specified in the relevant Order Form, (i) additional User Licenses may be added in minimum increments of 1; (ii) the term of the additional User License shall be coterminous with the expiration of the subscription term in effect at the time the additional User License is added; and (iii) pricing for the additional User Licenses shall be prorated for the remainder of the subscription term in effect at the time such additional User Licenses are added.
3.3. FoodBoss Responsibilities and Rights.
(a) Services. FoodBoss will provide the Subscription Services in a professional manner consistent with general and reasonable industry standards.
(b) Hosting. Customer agrees and understands that FoodBoss has entered into arrangements with one or more third parties for the hosting of FoodBoss’s applications and platform, whereby any such third party will perform the hosting obligations, provided that FoodBoss shall ensure that any such third party shall be contractually bound to provide substantially the same level of protection with respect to Customer Data as is provided by the terms of this Agreement (our "Third-Party Hosting Provider"). Customer acknowledges and agrees that the Third-Party Hosting Provider’s service levels, use policies and terms of service will apply to Customer and that Customer is bound by such terms of service and use policies (the "Third-Party Hosting Terms of Service"). Our current Third-Party Hosting Provider is identified in Exhibit A. The Third-Party Hosting Terms of Service applicable to Customer are also hereby attached as Exhibit A.
(c) Customer Data. FoodBoss shall maintain and handle all Customer Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security as required by applicable privacy laws and regulations. Customer hereby grants to FoodBoss a royalty-free, nonexclusive, worldwide, right and license (with the right to sublicense through multiple tiers) to use, copy, store, process, transmit and display Customer Data as necessary to provide the Subscription Services hereunder. FoodBoss agrees that to the extent the Subscription Services stores, processes or transmits Customer Data, neither FoodBoss nor the Subscription Services will, without appropriate prior Customer consent or except to the extent required by applicable law, (1) disclose Customer Data to any third party not authorized herein, or (2) use Customer Data for any purpose other than providing application functionality to users of the Subscription Services. Customer acknowledges and consents that the Subscription Services provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. FoodBoss has no obligation to retain Customer Data following thirty days after complete termination of the Subscription Services.
(d) Aggregated Data. Customer acknowledges and agrees that FoodBoss may compile anonymous Aggregated Data. To the extent necessary, Customer hereby grants FoodBoss a royalty-free, nonexclusive, irrevocable, right and license (with the right to sublicense) to develop anonymous Aggregated Data from the use of the Subscription Services.
(e) System Notifications. Customer shall receive reasonable system notifications pertaining to the Subscription Services, including planned downtime notices and the like.
3.4. Advertising Services. Customer may purchase additional Advertising Services pursuant to a separate Advertising Services Agreement (with its related Insertion Order) that has been mutually negotiated, agreed and separately executed by the Parties . Customer agrees and understands that absent such separate Advertising Services Agreement FoodBoss has no obligation to perform any such services.
3.5. Customer Responsibilities and Restrictions.
(a) Passwords and Unauthorized Access. Customer is responsible for maintaining the confidentiality of the passwords assigned to Customer. Customer will immediately notify FoodBoss if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities made under Customer’s User Licenses, including without limitation any fees incurred under Customer’s password-protected account. Customer shall (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify FoodBoss promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Services.
(b) Restrictions. Customer and its Authorized End Users shall not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet "links" to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related applications, software, systems, platforms or networks; or (ix) use any components provided with the Services separately from the Subscription Services.
(c) Customer Data. Customer agrees that itself, or its Authorized End Users, are solely responsible for the Customer Data, and it shall require Authorized End Users not to post, transmit, or share Customer Data on the Subscription Services that they do not have permission to post. Customer agrees and accepts that it is solely responsible at its sole cost and expense for creating backup copies and replacing any Customer Data posted or stored on the Services or provided to FoodBoss. Customer represents and warrants (i) that it has the right to disclose and provide to FoodBoss any data provided through use and access of the Subscription Services, and that no materials of any kind submitted as Customer Data or otherwise posted, transmitted, or shared on or through the Subscription Services will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material; and (ii) that Customer’s (and that of its Authorized End Users’) use of and access to the Subscription Services complies with all applicable laws, rules and regulations.
4. FEES AND PAYMENT.
4.1. Fees. The fees payable for the Subscription Services will be set forth in the Order Form. The fees will be invoiced in accordance with the relevant Order Form and are due upon receipt of invoice. The per-unit pricing during any automatic renewal term as per section 5.1(c) below will be the same as that during the immediately prior term unless FoodBoss has given Customer written notice of a pricing increase at least sixty (60) days before the end of that prior License Term, in which case the pricing increase will be effective upon renewal and thereafter. Unless otherwise agreed in an Order Form, any such pricing increase will not exceed 15% of the pricing for the applicable purchased Subscription Service in the immediately prior License Term (i.e. subscription term).
4.2. Taxes. Customer will pay or reimburse FoodBoss or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on FoodBoss’s net income or arising from the employment relationship between FoodBoss and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.3. Suspension of Subscription Services for non-payment. In addition to its other rights and remedies, FoodBoss reserves the right, without liability to the Customer, to suspend any and all access to the Subscription Services if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
5. TERM AND TERMINATION.
(a) Agreement. This Agreement commences on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below.
(b) Order Form(s). Each Order Form will commence on the start date specified in the relevant Order Form and continue for the term of each subscription specified therein (each a "License Term").
(c) Term of Purchased Subscriptions. The term of each License Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, License Terms will automatically renew for additional periods equal to the expiring License Term (i.e. subscription term) or one (1) year (whichever is shorter), unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant License Term.
(a) Termination for Convenience. Either party may terminate this Agreement or reduce the number of User Licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following term.
(b) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(c) Suspension of Services for Cause. In addition to its other rights and remedies, FoodBoss reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement (including a breach of Section 3.5) or any relevant Order Form until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within ten (10) business days from the suspension, then FoodBoss may immediately terminate the Agreement and/or the affected Order Form.
5.3 Effects of Termination. Upon termination of this Agreement, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to FoodBoss. Upon termination, each Party shall delete any of the other Party’s Confidential Information still in their possession (with the exception of Customer Data as set forth in the preceding paragraph) from computer storage or any other media including, but not limited to, online and offline libraries; and each Party shall return to the other Party or, at the other Party’s option, destroy, all physical copies of any the other Party’s Confidential Information.
5.4 Survival. The provisions of Sections 1, 3.5 (b), 3.5 (c), 5.3, 5.4, 6, 7, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
6. PROPRIETARY RIGHTS.As between FoodBoss and Customer, FoodBoss, its Affiliates and/or licensors retain all right, title and interest to the Subscription Services, the Aggregated Data, and all related software, applications, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, and any other intellectual property or items used to deliver the Subscription Services or made available to Customer as a result of the Services ("Our Technology"). The Subscription Services and Our related Technology are protected by applicable intellectual property laws and rights, including rights deriving from copyright, trade secret, patents, trademarks and related industrial property. Customer’s access and use of the Subscription Services, Our Technology and any related materials shall be governed by the terms of this Agreement. There are no licenses granted by implication in this Agreement and FoodBoss reserves and retains any rights not expressly granted to Customer. As between FoodBoss and Customer, Customer owns all rights, title and interest in and to Customer Data. In the event Customer (or its Authorized End Users) provides FoodBoss with any suggestions, enhancement requests, recommendations or other feedback relating to the Subscription Services or Technology ("Feedback"), Customer hereby grants FoodBoss a royalty free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into any FoodBoss products or services, provided it does not include any of Customer’s Confidential Information.
7.1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party'') to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data. FoodBoss Confidential Information includes the Subscription Services, Our Technology and Aggregated Data. The Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. DISCLAIMERS AND LIMITS ON LIABILITY.
8.1. Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, FoodBoss, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. FoodBoss, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
8.2. Disclaimer of Damages. EXCEPT FOR A BREACH OF SECTION 3.5 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.3. Limits on Liability. EXCEPT FOR A BREACH OF SECTION 3.5 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE LESSER OF FIVE HUNDRED THOUSAND DOLLARS (USD $500,000.00) OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER FORM(S) GIVING RISE TO LIABILITY.
9. INFRINGEMENT CLAIMS
9.1 Indemnification by FoodBoss. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent issued in the United States of America as of the Effective Date of this Agreement, misappropriates its trade secret or infringes its copyright rights ("Infringement Claim"), then FoodBoss will, at its own expense:
(a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded by a court with jurisdiction over the Parties against Customer based on infringement by the Subscription Services. If FoodBoss believes the Subscription Services may violate a right, then FoodBoss will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired prepaid portion of such Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against FoodBoss asserting that the Customer Data or Customer’s use of the Subscription Services violates (i) Section 10 of this Agreement; (ii) that third-party’s patent, trade secret, copyright and/or any other intellectual property rights, or (iii) otherwise harms the third party ("Claim"), Customer will, at its own expense: (a) defend or settle the Claim, subject to Section 9.3 below; and (b) indemnify FoodBoss for any costs and expenses incurred, including any damages finally awarded against FoodBoss based on the Claim.
9.3 Exclusions. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 Exclusive Remedy. This section contains each party's exclusive remedies and the indemnifying party's sole liability for Infringement Claims/Claims, respectively.
10. EXPORT CONTROLS. Customer shall comply with all export laws and restrictions and regulations of the Department of Commerce relating to exports (including "deemed" exports and "deemed" re-exports as defined by the Export Administration Regulations) and re-exports ("Export Laws"), the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States of America or foreign agency or authority, and Customer shall not export, import, re-export or transfer, directly or indirectly, including via remote access, any part of the Subscription Services or any other FoodBoss information or Technology, or allow the export or re-export of the Subscription Services, in violation of any such laws and regulations, or without any written governmental authorization required under applicable laws. By accessing or using the Subscription Services, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.
11.1. GOVERNING LAW. This Agreement is governed by the substantive laws in force in the State of Illinois, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this Agreement, each of the Parties hereby submits to the non-exclusive jurisdiction of the State and Federal courts in the State of Illinois.
11.2. MISCELLANEOUS. FoodBoss is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond FoodBoss' reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including any Exhibits and Order Forms constitutes the entire agreement between Customer and FoodBoss and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. Customer agrees and accepts that FoodBoss Third-Party Hosting Provider is a third party beneficiary to this Agreement. There are no other third party beneficiaries under this Agreement. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both FoodBoss and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. The failure of FoodBoss to act with respect to a breach of this Agreement by Customer or others does not constitute a waiver and shall not limit FoodBoss' rights with respect to such breach or any subsequent breaches. All notices under this Agreement will be in writing, in English and will be deemed to have been duly given when received, as duly confirmed by return receipt; or if transmitted during normal business hours by facsimile or e-mail when receipt is electronically confirmed. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.