Fooda® Provider Terms & Conditions

This Agreement is by and between the party signatory hereto as the “Principal” (“Principal”) and Fooda, Inc., a Delaware corporation (“Agent”). Version 7.28 – 2025-01-01.

A) DEFINITIONS

‍‍“Agent” includes Fooda’s subsidiary 11 Dining, LLC and any other entities controlled, owned, or affiliated with Fooda which may exist now or in the future.

‍“Commission(s)” or “Agent Commission(s)” is the % of Net Sales that the Agent earns for each Event. Commissions are itemized in the Commissions Addendum.

‍“Customer” means companies, organizations, hospitals, channel partners, government entities, residential communities, property managers, schools, individuals or ad hoc groups that make Fooda Services available to their Users.

‍“Events” refers to occasions initiated by the Customer, wherein the Agent coordinates providing goods or services with various providers of Fooda Services ("Fooda Services Providers").

‍“Fooda Services” means any goods, services, content, or offers provided to a Customer or its Users whether onsite, off premises, online, public location or Principal’s location. Agent sells Fooda Services on behalf of the Principal under the following categories:

1. “Catering” means a Customer placing an order for an Event. The Customer chooses the Provider, items, quantities, and applicable logistics such as delivery location and time.
2. “Delivery” means an online ordering platform that is utilized by Agent’s Customers to allow their Users to choose their selection before the order is placed.
3. “Offers” means a gift certificate, discount, coupon and/or voucher offered to Users that they may redeem for Principal’s products and/or services.
4. “Popup” means a Fooda Services Provider coming to a Customer’s site and serving food and/or providing beverages or other Fooda Services to Users. Popup events may be prepaid by the Customer, subsidized, or fully paid on site by the Users.
5. “Workplace Convenience Services” or “WCS” means goods and services that include vending, micro markets, coffee, beverages, pantry, office supplies or equipment rentals. WCS may be paid by the Customer, subsidized, or fully paid by the Users.

“Location Services Addendum” or “LSA” means an addendum to this Agreement that is not required but may be used to identify any additional location or Customer specific requirements, obligations, service offerings, legal terms, or financial obligations by the parties.

‍“Net Sales” means the gross sales from the Fooda Services less sales tax.

‍“Users” means Customer administrators, employees, guests, clients, members, associates, partners, students, tenants, and/or other individuals that the Customer has authorized or allowed access to utilize any Fooda Services.

B) SCOPE OF SERVICES

1. Agent’s Responsibilities

1. Agent is a software, technology, marketing and event planning company that provides services on behalf of Fooda Services providers in the marketplace and coordinates Events at onsite locations and via ecommerce programs.
2. Agent represents the Principal on a non-exclusive basis in the marketplace, and will disclose the name of Principal to its Customers and Users.
3. Agent will, in accordance with its standard practice, coordinate Event schedules and Offers including location, frequency, dates, and times.
4. Agent will use commercially reasonable efforts to promote Principal's brand and products, including in the following places: web, mobile, Customer sites, and/or email.
5. Agent has, notwithstanding the foregoing, no obligation to schedule any Events or to make Principal's goods or services available to Customers.
6. Agent does not guarantee items or quantities that will be sold at any Event. Agent may estimate an amount that may be sold (prep for amount), but this number is only based on Customer suggestions, historical data, or system generated amounts. This guidance is an estimate and does not constitute an order. Agent and Customer have no liability for theft, un-purchased or unconsumed food, goods services, supplies, equipment, labor, lost profits, or other costs borne by the Principal.

2. Principal’s Responsibilities (Applies to all Fooda Services except Offers)

1. The Principal is responsible for the Fooda Services being purchased by Customers and Users.
2. Principal shall furnish all plates, containers, napkins, condiments, and utensils for food consumption as required by Customer.
3. Principal will use best efforts to be on time and abide by all predetermined Event and fulfillment schedules, and will be responsible for all expenses, damages or claims arising out of a failure to do so.
4. Principal will abide by each Customer’s site marketing, security, presentation and dress code guidelines.
5. If Agent is audited by taxing authorities, Principal will cooperate with the audit, will provide any required documentation regarding the calculation of taxes and remittance of the taxes.
6. Principal agrees to comply with Agent’s operating procedures and utilize Agent’s designated systems, including, but not limited to, compliance, billing, invoicing, and Point of Sale (POS) systems. These procedures and systems may change from time to time and Principal shall work with Agent and agree to implement changes by a reasonable timeline set by Agent to assure a smooth transition.
7. Principal will, at all times during the term of this Agreement and/or any Event, maintain at minimum the following levels of insurance:
   1. Commercial General Liability: Single limit of $1,000,000 per occurrence and $2,000,000 aggregate.
   2. Automobile Liability: Combined single limit of $1,000,000 per person per occurrence, including owned, hired and non-owned automobiles.
   3. Worker Compensation Statutory: Insurance consistent with statutory limits (Including Employer’s liability Insurance of not less than $500,000 per occurrence covering all employees).
8. Principal will provide Certificates of Insurance to Agent in respect of the foregoing policies, and name Fooda, Inc. as an additional insured on each such policy. If requested, Principal will provide a Certificate of Insurance for each Customer and/or site and name each Customer and/or site as additional insured on each policy. Specific Customers may require additional coverage and Principal will be notified of those requirements before an Event is scheduled.
9. By providing any services to a Customer hereunder, Principal agrees, during the term of this Agreement and for a period of 18 months following termination of this Agreement for any reason, not to directly or indirectly (i) solicit, provide any services to or otherwise transact any business with that Customer outside the scope of this Agreement to the extent such services or business are reasonably similar to the services provided by Principal to any Customer in connection with any Event hereunder, or (ii) engage with any third party including marketing, technology, broker, reseller, event planning, food service or other type of company to provide services to that Customer. This clause is limited to those services similar as those Principal provided to the Customer through Agent hereunder. Principal acknowledges that any breach of this provision shall entitle Agent to seek injunctive relief, among other remedies, as monetary damages alone may not be sufficient to compensate Agent in the event of Principal’s breach of this provision.

3. Popup Program Terms & Conditions

1. Principal shall prepare high quality, fresh food at its own facility, deliver that food to the Event site, and sell a predefined menu to site participants at a predetermined price. All menu changes must be communicated and approved in writing by Agent, and Principal will incur fees for creation of new marketing materials.
2. Principal will prominently display its restaurant name and license at all Events.
3. Principal will clean the site at the end of each Event and take all garbage with it. Any penalties or fees assessed for leaving garbage on-site or incomplete cleaning will be payable in full by the Principal.
4. Principal will receive via email a list of Popup events and site-specific marketing fees for the Events that have been scheduled for the Principal. At that time Principal is assumed to have accepted the schedule and fees unless the Principal promptly notifies Agent otherwise either in writing or electronically.
5. Cancellation Fee: $150 if Principal cancels within 48 hours of an Event.
6. If Principal does not timely show up at an Event, then Principal will be charged a $150 no show fee and will immediately be subject to a 30-day period in which Principal’s remaining schedule may be terminated by Agent, at its sole discretion, without prior notice to Principal.

4. Delivery Program Terms & Conditions

1. Agent will utilize web and mobile ordering tools that allow Customers to place orders and Agent will transmit the orders to Principal.
2. Agent will negotiate with Principal a list of menu items and sale prices to Users, as well as Agent's commission.
3. Principal shall prepare high quality, fresh food at its own facility and then package and label the food based on operational instructions provided in the purchase order.
4. Late Orders
   1. If Agent determines that Principal has established a pattern of late orders then Agent may, at its sole discretion, put Principal on probation. If late orders persist then Agent may, at its sole discretion, elect to terminate this Agreement and no longer provide any services on behalf of Principal.
   2. Orders 15-30 minutes late will incur a fee of 20% of the total amount of the order.
   3. Orders greater than 30 minutes late will incur a fee equal to 100% of the total amount of the order (so entire order will be provided to Customer at no charge).
5. Wrong or Missing Food. Customers will not be charged and will be given the option to remake or cancel their order.
   1. For remade orders the Principal will remake the items at no charge to the Customer or Agent.
   2. For cancelled orders the Customer will be given a credit up to the retail amount of the order and that amount will be deducted from the amount due to the Principal.

5. Catering Program Terms & Conditions

1. Agent will create a unique purchase order for each catering Event. The pricing in each purchase order will be based on the predetermined pricing net of Agent's commission in the Catering addendum unless otherwise negotiated at the time of the order.
2. Principal shall prepare high quality, fresh food at its own facility and then package and deliver the food based on instructions provided in the purchase order.
3. Cancellation Fee: $100 if Principal cancels within 24 hours of the Event.
4. If Principal does not timely show up then Principal will fulfill the order at a later date at no charge or will, at Agent’s discretion, be required to pay a fee equivalent to the order amount.
5. Incomplete Orders. Customer will be given the option to have any missing items redelivered or refunded at the expense of the Principal.
6. Late Orders
   1. If Agent determines that Principal has established a pattern of late orders then Agent may, in its sole discretion, put Principal on probation. If late orders persist then Agent may, in its sole discretion, elect to terminate this Agreement and no longer provide any services on behalf of Principal.
   2. Orders 15-30 minutes late will incur a fee of 20% of the total amount of the order.
   3. Orders greater than 30 minutes late will incur a fee equal to 100% of the total amount of the order (so entire order will be provided to Customer at no charge).

6. Offers Terms & Conditions

1. Creation of Offers. By participating as described herein, Principal shall define the conditions of, and may supply the content and images to describe and illustrate, Principal's Offer and its terms, by completing and submitting, or authorizing an agent to complete and submit, an Offer addendum that will be attached hereto (“Offer Addendum”). Submission of an Offer Addendum does not obligate Agent to accept it or any of its contents nor to promote the Offer, and is not binding on Agent until Agent actually promotes the Offer as determined by Agent. At the point Agent begins to promote Principal's Offer to the public, the "Sales Period" begins and the Offer becomes an "Active Offer" during such Sales Period(s) unless Agent earlier terminates the Offer for any or no reason. Principal is responsible and liable for all Offer content and terms, and for Agent's or any purchaser's use or reliance on any of the foregoing. In creating an Offer, Principal may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited by law from being offered or advertised; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any law.
2. Promotion of Offers. If Agent accepts Principal's Offer Addendum, Agent may promote the Offer using any method and through any medium that Agent deems appropriate in its sole discretion, including through e-mail, mobile applications and any other type of electronic interface or distribution channel owned, affiliated, controlled or operated by or through Agent. Agent further reserves the right, but has no obligation, to promote the Offer through its affiliates and third-party business partners from time to time. Agent will promote each accepted Offer to Agent's customers and potential customers based on geographic or other geolocational data, but will determine the customers and potential customers to whom Principal's Offer is actually promoted and made available in its sole discretion. If Principal indicates specific limits or maximums with respect to the number or type of vouchers that may be offered through an Offer in the Offer Addendum, Agent will use commercially reasonable efforts to stop promoting Principal's Offer accordingly.
3. Distribution of Vouchers. Once Agent has received payment from a User of the amount owed, Agent will authorize for use, and make a voucher available to, the User of Principal's Offer. The vouchers will include any restrictions or limitations on the use of the voucher Principal has specified in the Offer Addendum. Users, or their authorized transferees, may then redeem the Offer by presenting Vouchers to Principal as printed certificates, through mobile devices, or any other media that Agent has adopted for voucher redemption.
4. Redemption Obligations. Principal shall comply with Principal's obligations specified in this Agreement, and the Offer Addendum. In addition, when redeeming vouchers, Principal shall: (a) honor the vouchers during the time period specified on and pursuant to the terms of Principal’s Offer, and as required under applicable law(s); (b) handle all customer service in connection with the redemption and use of the vouchers; (c) honor any voucher presented by an individual, even if that individual was not the purchaser, unless (i) otherwise specified in the Offer Terms (as defined below) or otherwise stated prominently on the face of the voucher or, (ii) Principal reasonably believes that individual obtained the voucher in an unauthorized or illegal manner, in which case Principal shall immediately contact Agent and explain the circumstances; and (d) comply with the terms and conditions stated on the voucher without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated on the voucher. Principal shall specify all generally applicable policies (e.g., cancellation policies that apply to all customers), restrictions and contractual arrangements (e.g., liability waivers required for all customers) applicable to the Offer ("Offer Terms") in the Offer Addendum, and Agent shall have no liability for the nature of Principal’s Offer Terms, Principal’s failure to specify appropriate Offer Terms, or (z) any other claims or damages arising out of any voucher or any redemption or other use of any voucher.
5. Payment Terms for Offers. Agent will remit to Principal the agreed upon cost for Offers based on the agreed upon price less any deductions as stated in the Offer Addendum. Agent will remit the funds to the Principal via ACH on a weekly basis for all Offers reported used in the period two weeks prior.
6. Reporting. It is the Principal's sole responsibility to utilize Agent’s provider portal to record Offer usage. All used vouchers shall be reported no later than 10 days following the date the goods or services are provided.
7. Insurance. Principal represents and warrants that it has, and shall maintain at its expense and at all times during the term of this Agreement, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in Principal's region, consistent with best industry practices, and sufficient to fully comply with applicable law and fulfill Principal's obligations under these terms (but in no event in amounts less than as specified in Section 2 above). Upon Agent's request, Principal shall provide proof of Principal's maintenance of such policies and provide assurances that indicate that Agent will be covered by such insurance policies in the event of a claim arising under or in relation to this Agreement.

C) GENERAL TERMS & CONDITIONS

1. Term & Termination.

Either party shall be entitled to terminate this Agreement upon 30 days' prior, written notice to the other party. Any outstanding scheduled Events or Offers will need to be honored based on the terms and/or addendums associated with those items. Either party may cancel this agreement immediately, including future scheduled events, if the other party breaches the terms of this agreement and fails to cure such breach within 15 days from the date of receipt of written notice of such breach.

2. Payment Processing Fees.

The following fees will be deducted from funds due to the Principal in connection with Fee Transactions (as defined below), such amounts to be detailed in the applicable Event reconciliation:

1. Agent’s or Customer’s POS systems:
   • 3.5% + $0.15 per User transaction for mobile, online ordering, stored value, key-in card, sales minimums, and other payment types , except:
   • 1.75% + $0.25 per User transaction for in person payments via card, QR Code, payroll deduction, or POS terminal subsidy transactions
2. 1.95% + $0.25 per User transaction for all Delivery and Catering orders.

For purposes of this Agreement, “Fee Transactions” shall mean: (1) Popup: all User payments excluding cash, coupons, and Fooda Rewards redemptions.; (2) Delivery: all User transactions; (3) Catering: all User transactions; or (4) Offers: all User transactions. For any transactions that do not originate on Agent’s POS or order management system, Agent will use commercially reasonable efforts to use the data provided by the third party to estimate the Payment Processing Fees based on the above schedule. All disputed, invalid, or fraudulent credit card charges submitted by Principal via POS will be the responsibility of the Principal and will be deducted from any monies due to Principal.

3. Site Management Fees.

If an Event does not require the Principal to furnish plates, containers, napkins, condiments, and/or utensils for food consumption, then the following fee will be deducted from funds due to the Principal:

1. 1. 1.5% of an Event’s total sales less any taxes or government/municipal fees.

4. Point of Sale System.

Agent shall be entitled to require Principal to use a specific Point of Sale system at Popup events. Principal is required to use Agent’s mobile POS application for every transaction, whether paid by cash or credit or any other means, at every Popup event unless otherwise communicated in writing by Agent. Principal’s mobile or tablet device should always be connected to the internet, whenever possible, when processing transactions. When Principal’s device is connected to the internet, a customer’s credit card will be validated before completing the transaction. If the Principal’s device is not connected to the internet or the mobile application is unable to reach Agent’s server, customer transactions will be automatically approved but credit cards will not be validated. The Principal will be responsible for any orders approved, where payment cannot be collected, while not connected to the internet or Agent’s server. This feature is being offered as a convenience to the Principal but may only be used when necessary. Principal is responsible for reconnecting the device to the internet and Agent’s server as soon as possible during or after the Popup event, and completely uploading the data from the device. Principal will not be paid for any orders that are not synced to Agent’s server. The cost of any physical device or POS equipment will be paid for by the Principal.

5. Fooda Rewards.

Fooda Rewards is a Popup and Delivery loyalty program to thank loyal Users and encourage their continued spending. Principal is required to participate in Fooda Rewards to the extent it is available in Principal’s Events. For Popup, Principal’s staff will ask Users for their phone number to enter in the Agent’s POS during payment transactions to provide reward points to Users. Users will receive two (2) reward points for every dollar spent, excluding tax and discounts. Once Users accumulate 100 reward points, they can exchange for a $2 Reward in Agent’s mobile app. Principal is not required to pay a monthly fee for the loyalty program. Users can redeem the points at any Popup or Delivery Event, not limited to the restaurant where the points were earned. Principal is responsible for the cost of redeemed Rewards and will not be reimbursed by Agent. Agent reserves the right to change the program terms or cancel the program at any time at its sole discretion.

6. Billing and Payment.

Agent will use commercially reasonable efforts to reconcile each week’s Events by the middle of the following week. A reconciliation form will be created for each Event and emailed to Principal’s accounting contact email address. Agent will then pay or charge the Principal via ACH for the net amount due to or from the Principal the week following the creation of the reconciliation. From collected amounts Agent will deduct its Commissions, payment processing fees, scheduling fees, and any other charges set forth herein, Commissions addendum, or otherwise agreed to by the parties in writing. The funds remitted to the Principal may include estimated sales tax. These funds will be deposited (or withdrawn) from Principal's account within two (2) business days of the date on which Agent submits the ACH instructions to its bank. For payment terms related to Offers see Agent Offers Terms and Conditions above. Either party may notify the other party of errors or irregularities with Billing and Payment and both parties will make a good faith effort to review records related to the transactions. The parties agree to a lookback period of up to twelve (12) months back from when the request is made in writing by the requesting party. This lookback period limitation does not apply in the case of fraud or theft. Any required payment due to either party as a result of the reconciliation pursuant to this clause shall be made from the appropriate party to the other within thirty (30) days after the parties agree on such reconciliation.

7. Sales Tax.

1. Agent will calculate sales tax based on publicly available tax rates and/or information provided by Principal.
2. Marketplace Facilitator States. Agent is registered and will calculate, collect and remit sales tax for all Fooda Services provided within the states listed below. Principal hereby waives any claims against Agent, and indemnifies Agent, from and against any failure by Principal to calculate, collect, or remit any fees or taxes to any and all appropriate authorities that are EXCLUDED from these states’ marketplace facilitator laws.
   1. Illinois, Effective 4/1/2021
   2. New York, Effective 9/1/2021
   3. Georgia, Effective 1/1/2022
   4. Pennsylvania and Wisconsin, Effective 11/1/22
   5. Tennessee, Effective 12/1/2022
   6. Washington, DC, Effective 1/1/2023
   7. Michigan, Effective 2/1/2023
   8. Virginia, Effective 6/1/2023
   9. New Jersey, Effective 7/1/23
   10. California and Ohio, Effective 10/1/2023
   11. North Carolina, Effective 11/1/2023
   12. Nevada, Effective 12/1/2023
   13. Indiana, Effective 1/1/2024
   14. Oklahoma, Effective 2/1/2024
   15. Arkansas, Effective 3/1/2024
   16. Colorado, Effective 3/1/2024
   17. Maryland, Effective 5/1/2024
   18. Kansas, Effective 6/1/2024
   19. Minnesota and Iowa, Effective 9/1/2024
   20. Connecticut, Effective 11/1/2024
   21. Washington, Effective 12/1/2024
   22. Arizona, Effective 1/1/2025
   23. Florida, Effective 1/1/2025
   24. Missouri, Effective 1/1/2025
   25. Texas, Effective 1/1/2025
   26. Nebraska, Effective 2/1/2025
3. Exceptions in Marketplace Facilitator States. At locations within Marketplace Facilitator states where Principal acts as a marketplace facilitator, funds are collected outside of Agent’s point of sale system, or other factors exist that require the Principal to remit taxes, then the Parties may agree via a Sales Tax Remitter Addendum that the Principal will remit the taxes instead of the Agent.
4. All other States: Principal represents and warrants that Principal: (i) is registered for the collection of sales, use and other similar taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of all Fooda Services; and (ii) will collect (or will cause Agent to estimate and collect on Principal’s behalf) and Principal will remit any and all applicable state and/or local sales, use, and other similar taxes that may apply to the Fooda Services or the supplying of goods or services. Agent shall not be required to estimate and/or collect any taxes on Principal’s behalf except to the extent such obligations are expressly set forth in this Agreement. Principal hereby waives any claims against Agent, and indemnifies Agent, from and against any failure by Principal to calculate, collect, or remit the required sales, use, and other similar taxes to any and all taxing authorities.

8. Customer Complaints.

Agent shall be entitled, in its sole discretion, to refund Users up to 100% in cases of quality or service issues. These amounts will be deducted from amounts otherwise due to the Principal if Agent determines, in its sole discretion, Principal is the cause of the complaint.

9. Code of Conduct.

Agent shall be entitled to immediately terminate this Agreement and any future scheduled Events if Agent determines, in its sole discretion, that the Principal or its staff have acted in an unprofessional manner or if the Agent determines that the Principal may not be capable of performing the services described herein at the standards required by the Customer or Agent.

10. Prohibition Against Improper Influence.

Principal agrees that it will not offer, promise, or give any payment, gift, or any other benefit of value to any employee, or representative of the Agent or Customer, with the intent to influence, win a contract, retain business, or obtain any business advantage. Violation of this provision shall be considered a material breach of this agreement, and the Agent may immediately terminate this agreement and seek all legal remedies available to it.

11. Responsibility for Fooda Services.

Principal acknowledges that Principal is the seller of Principal's food, goods and services. Principal is also responsible and liable for: (a) the decision to make Principal's food, goods and services available through Agent; (b) fulfillment to all Users; (c) verifying the accuracy of menu and service prices and tax rates in Agent’s mobile, web, and offline marketing and sales systems; and (d) supplying all food, goods and/or services specified in the addenda.

12. Marketing Materials.

Principal shall provide Agent with access to its marketing materials, and hereby authorizes Agent to use such materials in its marketing activities, including products or services offered, food menus, graphics, logos, and brand name so Agent can market the Principal's products and services.

13. Intellectual Property; Licensure; Compliance.

Principal represents, warrants and covenants that: (a) its business and the food, goods or services offered through Agent do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (b) it holds all necessary licenses, registrations, regulatory documents and authorization documents, if any, required to make any Offer and provide the goods or services described therein; (c) it will comply with all applicable laws, rules and regulations in performing hereunder; and (d) it will provide the food, goods and services made available through Agent in a professional manner consistent with industry best practices.

14. Data Use and Ownership.

Agent owns all of the transaction data collected via its website, mobile apps, and Point of Sale (POS) systems (including Square) and shall have the right: (i) to use the data as necessary to perform hereunder; (ii) to collect and process the data subject to applicable law to use internally for record keeping, internal reporting, analytics, optimization, fraud detection and support purposes; (iii) to compile and disclose data in the aggregate where Principal’s individual or user data is not identifiable, including calculating averages by location, item, cuisine, or region; and (iv) to provide the data as required by banks, law or court order, or to defend Agent’s rights in a legal dispute.

15. Confidential Information.

In connection with the relationship created hereby the Principal will be given or may have access to certain information including, but not limited to User names, contact information, email addresses, or other information that Agent or its Customers consider confidential. At no time, either during or subsequent to the term of this Agreement, may Principal (i) disclose any such information to any third party, or (ii) use any information obtained during the course of doing business with Agent for any purpose other than fulfilling the terms of this Agreement. For purposes of clarity, using any such information to market to or contract with Customers or Users is strictly prohibited. Principal acknowledges that any breach of this provision shall entitle Agent to seek injunctive relief, among other remedies, as monetary damages alone may not be sufficient to compensate Agent in the event of Principal’s breach of this provision.

16. PCI Compliance.

In the event Principal is not using Agent’s point of sale (POS), the Principal will accept cashless payments (including credit and / or debit cards) and it will ensure that its staff adheres to the then current PCI (Payment Card Industry) Standards or any equivalent thereof or any substitute therefore. Any costs associated with an audit or to gain compliance or to remedy a violation of these standards, including User or Customer reimbursements, shall be borne by the Principal. Principal shall notify Agent if it suspects or has been notified by any third party of a possible security breach related to the cashless system (or related cashless data) used at any Fooda Services Event. In the event that Principal is using Agent’s POS, Agent will use commercially reasonable efforts to ensure the POS is PCI compliant and other than in the event of the Principal’s negligence, Agent will be responsible for any costs associated with an audit or to gain compliance or to remedy a violation of these standards, including User or Customer reimbursements. Complementary Controls for Principal: Fooda Services and related controls were designed with the assumption that certain controls will be implemented by Principal. Such controls should be followed by Principal to complement Agent's controls. Principal should maintain controls to provide reasonable assurance that:

1. Controls are implemented by Principal to only use the Agent's iOS mobile application distributed through the AppStore. Agent does not distribute mobile applications through any other channels.
2. Controls are implemented by Principal to secure mobile devices from hackers, snoopers, and thieves with a minimum configuration that includes the following: (a) a strong device passcode (Apple iOS passcode); (b) automated iOS updates; (c) USB restricted mode.
3. Controls are implemented by Principal to ensure physical controls to prevent unauthorized users from accessing the payment card reader and mobile device running the Agent's POS application during and after business hours. Authorized users should receive appropriate security and privacy awareness training, and be required to authenticate (POS passcode) to the mobile device prior to performing payment processing activities. Controls are implemented by Principal to avoid installing and using the Agent's POS app on a iOS device that has an outdated and jailbroken operating system.
4. Controls are implemented by Principal to immediately notify Agent's representatives of any internal and external incidents (e.g. lost or stolen devices) that may impact payment processing activities.
5. Controls are implemented by Principal to configure the Agent's POS app to process transactions while using a trusted cellular connection (preferred). Alternatively, the Agent's POS app may process such transactions through a trusted Wi-Fi network configured in accordance with industry standards. At least, the wireless network must use WPA2 encryption, and protect payment transactions against rogue access point attacks. Public Wi-Fi should not be used.
6. Controls are implemented by Principal to change vendor-supplied default passwords of the systems that are part of the network used to facilitate payment processing activities.
7. Controls are implemented by Principal to avoid collecting, exposing or backing-up payment information on paper and other electronic systems not explicitly approved by Agent.
8. Controls are implemented by Principal to securely uninstall the Agent's POS application prior to retiring, selling or disposing of a mobile device that has been used for payment processing.

17. Health and Safety.

Principal represents and warrants that all goods, food or services provided in connection with any Event or Offer are safe and comply with all applicable laws regarding health and safety, licensing, fire, and hygiene standards (collectively, “Health Laws”). At Agent's request, Principal will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing compliance with the Health Laws. As is evidenced by this agreement, Principal expressly allows all local, county, and/or state regulatory agencies to release information directly to Agent related to inspections, violations, licensing, or any other applicable information pertaining to a Principal’s ability to fulfill the terms of this agreement or ability to operate. Principal shall ensure that its facilities and operations remain in compliance with all applicable Health Laws during the term of this Agreement. Principal agrees to abide by list of banned items and foods, which may be updated at Agent’s discretion and is available at www.fooda.com/bannedfoods. Agent reserves the right to immediately terminate its relationship with Principal, and to refuse to promote Principal's food, goods or services, if Agent believes, in its sole discretion, that Principal's facilities or services do not fully comply with any or all applicable Health Laws. Any state or local violations, including lost sales, profits, fees, or legal expenses related to Health Laws in connection with any Offers or Events are the sole responsibility of the Principal. All persons who enter Customers’ property are prohibited from carrying a handgun or firearm of any kind onto the property regardless of whether or not the person is licensed to carry a handgun.

18. Sites.

Principal acknowledges that Agent does not own, operate or in any other manner exercise any control or influence over Customers hosting Events. Customers may have constraints related to location, hours, access, or other requirements affecting the service area. Agent shall not be responsible or liable in any way for the acts of any Customers or Users, including without limitation damages caused by any such party. Principal hereby releases, covenants not to sue and forever discharges Agent, together with its directors, officers and employees, from any and all liability, claims, actions and causes of actions whatsoever arising out of or related to any loss, damage or injury that may be sustained due to the alleged or actual acts or omissions of a Customer or User. Accordingly, Principal agrees that it will look solely to the applicable Customer or User for compensation for said losses, claims, damages and/or injuries.

19. Jurisdiction and Venue.

In the event a dispute arises between Principal and Agent relating in any way to this agreement, the parties hereto agree that any litigation arising between these parties shall be brought only in the courts of the Circuit Court of Cook County, Illinois and that the law of the state of Illinois shall apply.

20. Non-Discrimination.

Principal shall not discriminate against any Users, workers, employees or applicants, or any member of the public, because of race, color, religion, age, disability unrelated to ability to perform, gender, national origin or ancestry, sexual orientation, marital status, military discharge status or source of income. Such action shall include, but not be limited to the following: providing Fooda Services, employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training; including apprenticeship.

21. Legal Fees.

In the event that either party commences litigation to enforce or protect such party's rights in accordance with and under this Agreement, the prevailing party in any such action shall be entitled to recover reasonable attorneys' fees and costs (including the costs of experts, evidence, and counsel) and other costs relating to such action, in addition to all other entitled relief, including damages and injunctive relief.

22. Limitation of Liability; Disclaimer.

AGENT SHALL NOT BE LIABLE TO PRINCIPAL FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). AGENT’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE COMMISSIONS RECEIVED BY AGENT RELATED TO THE GOODS OR SERVICES PROVIDED BY PRINCIPAL DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM. THESE LIMITATIONS SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION OF PRINCIPAL AND/OR CLAIMS OR DAMAGES ARISING OUT OF PRINCIPAL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT AS EXPLICITLY SET FORTH HEREIN, AGENT DOES NOT MAKE ANY EXPRESS OR IMPLIED REPRSENTATIONS OR WARRANTIES HEREUNDER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR AS TO ANY MINIMUM AMOUNT OF BUSINESS THAT PRINCIPAL MAY GENERATE ON ACCOUNT OF THE RELATIONSHIOP CREATED HEREBY.

23. Indemnification & Hold Harmless:

Principal shall indemnify, defend and hold Agent, Customers, and Users harmless, including their officers, directors, agents, business partners, employees, tenants, participants, and parent, sister and other affiliated companies or organizations, from and against any and all, claims, demands, losses, damages, costs and expenses (including reasonable attorney’s fees, costs and expenses incidental thereto), connected with or resulting from: (i) injury or damage to any property, or death of any person, caused by Principal or any of its agents (including, without limitation, as a result of any of its food, products or services); (ii) any breach by Principal of any of its covenants, obligations, representations or warranties set forth herein; (iii) violation of any local, state or federal law or regulation; (iv) workers compensation or other insurance claims; (v) infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party resulting from any content or Intellectual Property provided to Agent by Principal or used by Principal in connection with Fooda Services; or (vi) Principal's (or its employees’ or agents’) negligent acts or omissions or willful misconduct or violation of any law or regulation, in connection with this Agreement. Agent will provide prompt written notice of any such claim to Principal; will allow Principal sole authority and control over the defense and/or settlement of such claim (it being understood that Principal will not enter into any settlement that does not fully release Agent, all Customers and all Users without Agent's prior written consent); and (iii) at the Principal's request, provide such reasonable assistance and information as is available for the defense of such claim.

24. Entire Agreement.

This Agreement and the exhibits and addenda attached hereto set forth all of the agreements, understanding, representations and warranties of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings of the parties.

25. Assignment.

Principal may not assign this Agreement or any of its rights without the prior written consent of Agent.

26. Intellectual Property.

All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. Agent shall be entitled to post Principal's name and logo at Agent's website and/or within any mobile application as a customer or partner of Agent. Each party hereby licenses use of its names and trademarks to the other party to the limited extent necessary for such party to carry out its responsibilities hereunder during the term of this Agreement. Principal shall not directly or indirectly reverse engineer, attempt to derive the source code, copy or reproduce all or any portion of any software platform of Agent made available to Principal hereunder, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization.

27. Changes to Terms & Conditions.

Agent may update these Terms and Conditions in the future. Unless this Agreement or applicable law specifies otherwise, Agent will give Principal fifteen (15) days’ prior notice of any significant change to this Agreement. If Principal finds the change unacceptable, Principal shall be entitled to terminate this Agreement by providing written notice to Agent during the above-described fifteen (15) day period. Principal’s failure to timely deliver a termination notice as described above shall be deemed to constitute Principal’s approval of the applicable changes to this Agreement.

28. Miscellaneous.

The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, or representative of the other party for any purpose whatsoever. This Agreement may be executed in counterparts and by facsimile or scanned .pdf, each of which shall constitute originals and all of which, when taken together, shall constitute the same original. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. If any provision of this Agreement is held to be unenforceable or invalid for any reason, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.