Local Bytes Agreement
SUBSCRIPTION AGREEMENT FOR USE OF ONLINE PLATFORM AND INDIVIDUALLY APPLICATIONS
This Subscription Agreement (“Agreement”), by and between Dynamic Developers, LLC, an Oklahoma limited liability company, doing business as Local Bytes, (“Provider”) and the entity set forth in the customer signature block below (“Customer”) and, together with Provider, (the “parties”), is for Customer’s use of (a) Provider’ proprietary platform and any related client materials or software provided to Customer for use with such Platform (the “Platform”), and (b) applications offered by Provider for use with the Platform as provided in individual subscription orders agreed to by both parties from time to time (the “Applications”).
The Platform provides Customer with an online and mobile menu and ordering system, (the “System”) Provider reserves the right to change the System from time to time to reflect changes and improvements in the Platform. Any such change will be effective when provided to Customer or posted by Provider in the customer section of Provider’s support site (currently at www.dynamicdevelopers.dev). Applications offered by Provider for use with the Platform may be licensed and used by Customer only in accordance with subscription orders agreed to by both parties from time to time (“Subscription Orders”).
1.2. Set-Up and Configuration.
For Customer to use the Platform, Provider must first perform set-up and configuration for Customer by loading data and configuring the settings for Customer based on the profile and user information pertaining to Customer requested by Provider (“Customer Data”). Promptly after execution of this Agreement, Customer will provide to Provider the Customer Data requested by Provider for such purpose, in such format as Provider may reasonably request. Provider will make diligent efforts to complete the set-up and configuration promptly in cooperation with Customer in accordance with the implementation plan provided by Provider to Customer. Dates for work and completion in the implementation plan are estimates only and not guaranteed. Customer will be responsible for providing the staffing, resources and the preparation described in such implementation plan. Provider is not responsible for delays caused by scheduling conflicts, an issue involving Customer’s own staff, facilities, or networks, or any other factor beyond the control of Provider. Customer is responsible for proper operation of the equipment provided by Provider and the updates required by Customer.
Provider provides toll-free telephone support as described in Provider’s System. Provider reserves the right to change the System from time to time to reflect changes and improvements in support services. Any such change will be effective when provided to Customer or posted by Provider in the customer section of Provider’s support site (currently at www.dynamicdevelopers.dev). Support may be requested only by Customer’s Account Administrator.
2. Platform License, Ownership and Use
Subject to the terms and conditions of this Agreement, during the Term of this Agreement and until the end of the Subscription Period specified for each Application, Provider grants Customer a non-exclusive, revocable, non-transferable, non-sublicensable right: (i) to permit Customer’s employees to access and use the Platform and Applications, and, upon Provider’s prior written approval (which Provider will not unreasonably withhold), to permit one or more independent contractors to do the same on behalf of Customer, (ii) to submit Customer Data to the Platform and to receive and use output available to Customer from the Platform and Applications, including output that combines or derives from Customer Data (the “Output”), and (iii) to use the Basic Platform Functionality provided by the Platform and the functionality of the Applications, in each case solely in order for Customer to receive and process orders for menu items (“the Permitted Purpose”). The employees and approved independent contractors who are permitted to access and use the Platform and Applications are referred to as “Authorized Users.” CUSTOMER AGREES AND UNDERSTANDS THAT NO ALCOHOLIC BEVERAGES MAY BE ADDED TO THE MENU OR DELIVERED.
2.2. Authorized Users.
The total number of Authorized Users who are permitted to access and use the Platform and Applications during any calendar quarter (i.e., January 1 through March 31, and each 3-month period thereafter) or portion thereof, regardless of whether they actually do so or do so concurrently, will be limited in each quarter to the maximum number of Authorized Users prescribed in each Subscription Order for the corresponding Application. Customer will permit only its Authorized Users to use the Platform and Applications, and such Authorized Users may do so only in compliance with the terms and conditions of this Agreement. Customer is responsible for the use of the Platform and Applications by anyone acting for or on behalf of Customer, including all Authorized Users, and including all persons who use Customer’s passwords (whether or not authorized by Customer).
2.3. Ownership of Platform and Applications.
Customer acknowledges that Provider is and will remain the sole and exclusive owner of all right, title and interest in and to the Platform, the Applications, the equipment provided, and the Output, including any intellectual property rights therein, subject to the licenses expressly granted to Customer herein. Provider acknowledges that the Customer is and will remain the sole and exclusive owner of all right, title and interest in and to its Customer Data, subject to the licenses expressly granted to Provider herein. Provider shall have the unrestricted right to use any suggestions or improvements pertaining to the Platform or Applications arising as a result of any interactions or communications between the parties. In the event that the equipment provided to the Customer is damaged, Customer explicitly agrees to payment to Provider for the replacement cost of the damaged equipment and any re-programming necessary. This Agreement does not grant Licensee any right in the algorithms, rules or models used or created by Provider for the operation of the Platform or Applications, or the collection or analysis of Customer Data to produce the Output.
Customer will not directly or indirectly do any of the following, except as expressly stated otherwise in this Agreement or an applicable Subscription Order for an Application: (a) copy, sell, distribute, sublicense, lease, publicly display, rent, time share, use as a service bureau or otherwise commercially exploit the Platform, the Applications, or the Output; (b) disassemble, decompile, or reverse engineer the Platform or the Applications; (c) modify, combine or alter the Output, or (d) use the Output Data as a data source to create a new database or data service for use by anyone other than Client or for use other than for the Permitted Purpose. For purposes of this Section 2.4 only, references to the Platform, the Applications, and the Output owned by Provider include (without limitation) all copies, records, output, reports, compilations, collective or derivative works, presentations, diagrams, summaries and excerpts to the extent they contain or are adapted from the Platform, Applications, Output, or any other Licensor services or materials, regardless of whether in electronic or tangible form or represented or communicated in any other manner. Except for the licenses expressly granted in this Agreement, neither party grants or concedes to the other party any right or license, express or implied, in its intellectual property, data or technology.
2.5. Account Administrator.
Customer will designate one of its employees as its administrator for purposes of Customer’s use of the Platform and all Applications (“Account Administrator”). Customer may replace the Account Administrator at any time by providing written notice of the change to Provider. Customer will require its Account Administrator to be responsible for (a) overseeing compliance with the terms and conditions of this Agreement, (b) administering passwords and permissions for Authorized Users, and (c) coordinating or monitoring other requests between the parties regarding the technical installation, operation, maintenance and repair of the Platform and the Applications. Customer is responsible for protecting the confidentiality of its passwords.
3.1. Set-Up and Configuration Fee.
The one-time fee for the set-up and configuration of the Platform described in Section 1.2 above is set forth in the fee schedule attached hereto as Schedule A. This fee is payable upon execution of this Agreement. Provider is not required to perform set-up or configuration services prior to receipt of such payment. The initial fee is non-refundable, regardless of cancellation of this Agreement or any Subscription Order for Applications.
3.2. Subscription Fee.
The subscription fee for each initial Application under any agreed-to Subscription Orders will be due as provided in each Subscription Order.
Provider’s fees do not include, and Customer is liable for, all governmental taxes, assessments, fees or duties that may be applicable in connection with the Platform, the Applications, or this Agreement, except for taxes, assessments, fees or duties based on Provider’s net income.
3.4. Due Dates.
If a fee schedule or order does not provide for payment by a date certain, Customer agrees to pay fees within ten (10) days after invoice. Amounts past due shall accrue interest at the rate of 18%, or the maximum rate permitted by law (if less), from the date past due. In the event Provider initiates a collection action for any amount past due, Customer shall be responsible for collection costs, including actual costs of attorney and all associated costs. Venue and jurisdiction for any such legal action shall be exclusively in the District Court of Cherokee County, State of Oklahoma. Customer specifically and irrevocably waives right to jury trial.
3.5. Books and Records.
To the extent Customer’s license is based on metrics or similar limitations, or fees due from Customer are based on Customer utilization, transactions, or other activities, Customer agrees to maintain accurate, current and complete books and records to document compliance and accounting. Customer agrees to maintain such records for the term of this Agreement and a period of not less than six (6) months following the termination of this Agreement. Subject to at least ten (10) days prior notice, Provider shall have the right to require Customer to produce copies of any such records.
4. Confidentiality and Customer Data.
Each party acknowledges that it may receive, or may have received, Confidential Information in discussions or in the performance of this Agreement, the disclosure of which would cause the disclosing party irreparable harm. Each party, therefore, agrees to: (a) hold the Confidential Information in strict confidence, except as expressly allowed by this Agreement; (b) disclose the Confidential Information only to its directors, officers, employees, agents, and representatives who have a need to know such information in connection with the recipient’s performance hereunder, or as otherwise allowed hereunder, and who are aware of the confidentiality obligations hereunder; and (c) take commercially reasonable steps to prevent the accidental or unauthorized disclosure of any Confidential Information.
For purposes of this Agreement, “Confidential Information” means information and material given or disclosed by a discloser (or its representatives) to the recipient (or its representatives) in a manner or under circumstances in which the recipient would reasonably understand such information or material to be confidential or proprietary, whether or not such information or material is marked as “proprietary” or “confidential” as well as all other information and material (whether written nor oral) belonging to or relating to the discloser that is not generally known by or available to the discloser’s competitors, but that is generally known only to the discloser and its and their respective employees and representatives having a reasonable need to know or having access to such information or material, and shall include any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts, or other materials derived or produced by recipient or its partners, agents, employees, and other authorized representatives which are derived from or contain discloser’s Confidential Information.
The Platform, Applications and Output shall be considered to be Confidential Information of Provider. The Customer Data shall be considered to be Confidential Information of Customer. Customer expressly grants Developer rights to publicize the fact that Customer is utilizing the Platform, rights to publish pictures of Customer locations, logos, etc., without compensation and as consideration for marketing to be done by Developer for the Platform.
The term “Confidential Information” as used herein does not include any information which (a) is already known to the public or recipient before disclosure by discloser, (b) is subsequently made known to the public without any violation of this Agreement, (c) is rightfully received by recipient from a third party without similar restriction and without breach of this Agreement, or (d) is independently developed by recipient without breach of this Agreement.
4.5. Use of Data.
Customer agrees that Provider and its subcontractors and third-party providers may use the Customer Data in order to perform Provider’s obligations under this Agreement, to provide or support the Applications, and to produce the Output. In addition, Provider may aggregate Customer Data with other data created, acquired or derived by Provider for purposes such as modeling, analyzing trends, developing and improving the Platform and existing and new Applications, and reporting on metrics. Customer will not share or sell Customer Data in any form that identifies Customer or its clients or transactions.
4.6. Data Security.
Provider will implement commercially reasonable security procedures to protect the Customer Data or any portion thereof in its possession against unauthorized disclosures, changes in content, or use in violation of this Agreement or the Subscription Orders. Provider, and any subcontractors to whom Customer Data in unencrypted form is provided, shall maintain a comprehensive data security program, which shall include reasonable and appropriate technical, organizational and physical security measures against the destruction, loss, unauthorized access or alteration of such Customer Data in the possession of Provider or such subcontractors, and which shall be (a) no less rigorous than those maintained by Provider for its own information of a similar nature, (b) no less rigorous than accepted security standards in the industry, (c) adequate to meet Customer’s legal requirements as each is communicated to Provider, such as litigation hold requests, and (d) otherwise in compliance with all applicable laws, provided that Provider shall be entitled to reasonable compensation and reimbursement of expenses if any change in its systems or procedures or significant other additional effort is required to meet a litigation hold request or similar unique legal requirements.
4.7. Notice of Security Breach.
In the event Provider discovers or is notified of a breach of security involving Customer Data in the possession or control of Provider or its subcontractors which creates a risk of loss, theft or misuse of the Customer Data, Provider shall immediately (a) notify Customer, as applicable, of such breach, (b) investigate (in consultation with Customer, as applicable) such breach, (c) perform a root cause analysis and prepare a corrective action plan, (d) provide written reports of its findings and proposed actions to Customer, as applicable, for its review and approval, and (e) to the extent such breach results from the acts or omissions of Provider or its subcontractors or affiliates, remediate such breach of security in accordance with Section 6.5 and take commercially reasonable actions to prevent its recurrence.
5. Term, Renewal, Termination and Suspension
5.1. Term of Agreement.
The initial Term of this Agreement shall be for one (1) year and the Term will thereafter renew for additional periods of one (1) year each unless and until each subscription order for Application is terminated in writing. In order to effectively terminate, Customer must deliver written notice by certified mail, return receipt, to Provider at least ninety (90) days in advance, after the initial first year minimum subscription and continuing for one (1) year past the latest date that Provider shall provide any hardware or additional configuration work for Customer. In that event, the written notice for termination will not be effective until at least one (1) year past the latest such date and the terms of this Agreement shall continue to bind the Customer until the expiration of such time.
Provider may terminate otherwise as follows: (a) upon notice that Customer has committed a material breach of this Agreement or any subscription order that is not cured within five (5) days of written notice of such material breach; or (b) upon reasonable notice from Provider, if Provider determines that it will no longer provide the Platform or applicable Applications to its customers generally, including as a result of a change in products that results in availability of different services in lieu of an existing Application.
5.3. Effect of Termination.
Upon any termination of this Agreement, all rights granted to Customer under this Agreement will immediately terminate, and Customer will no longer be permitted to use or access the Platform or then-current Applications. Customer will return or destroy any software or materials pertaining to the Platform or specific Applications then in Customer’s or any Authorized User’s possession and return any and all hardware supplied by Provider. Any other terms which in their context should survive the termination of this Agreement in order to give effect to such terms shall continue in effect after termination of the Term of this Agreement, including payment obligations for fees that accrue during the Term of this Agreement, ownership, confidentiality, terms and restrictions for use of Customer Data, and indemnification.
Provider may at any time suspend the access of Customer or any user to the Platform or Applications and/or disable their access rights in the event of indications of misuse, unlawful conduct, or violation of this Agreement, the Subscription Orders, or other usage policies. Grounds for doing so are not limited but may include, for example, legal or regulatory reasons, investigation of suspicious activities, or action by authorities, or if either party has reason to suspect activities that may violate subscriber policies, applicable laws, or are otherwise deemed harmful to Provider, either party’s respective network or facilities, or other subscribers. Provider shall not be liable to Customer, any user or anyone else for suspension of access to the Platform or Applications, regardless of the grounds.
6. Indemnification and Liability
Customer will defend, indemnify and hold harmless Provider and its employees, officers, directors, agents, successors and assigns from and against any and all loss, damage, liability and expense arising from any claim brought against Provider by any third party related to (a) Customer or Customer’s staff’s failure to comply with governmental or public health care directives, laws, ordinances or regulations; (b) any use by Provider of Customer Data in accordance with the terms of this Agreement, (c) breakage of any equipment provided by Provider to Customer and the costs of any programming required for replacement equipment; or (d) Customer’s and its users’ (whether or not authorized) use of the Platform in violation of the terms of this Agreement or in a manner that is inconsistent with the Platform documentation. A party seeking indemnification for a claim under this Section 6.1 agrees to give the other party prompt written notice of any claim for which indemnification is sought. Failure to give such notice in a prompt manner will not abrogate or diminish the indemnifying party’s obligation under this Section 6.1, except to the extent such failure materially prejudices the indemnifying party’s ability to defend the claim. For any claim for which indemnification is sought, the indemnifying party will have the sole authority to control the defense and, in its discretion, settlement of any such claim, including the right to select legal counsel. The indemnified party will provide the indemnifying party with such information and assistance for the defense of such claim as the indemnifying party reasonably requests, at the expense of the indemnifying party.
6.2. IP Infringement.
If the Platform or Application (or any portion thereof) becomes the subject of an intellectual property infringement or misappropriation claim caused by Provider’s operation or design of the Platform or Application, Provider will (a) replace or modify the infringing portion to avoid the infringement claim, while providing substantially equivalent functionality, (b) secure Customer’s right to continue use of the Platform, or (c) remove the infringing portion. If such removal has a material adverse impact on the use of the Platform, then Customer may terminate this Agreement upon written notice to Provider without liability of any kind to either party. Section 6.1 and this Section 6.2 together state Customer’s exclusive rights and remedies with respect to any intellectual property infringement or misappropriation by Provider or the Platform.
THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS AND PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ORAL OR WRITTEN, WITH RESPECT TO THE PLATFORM AND THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. PROVIDER DOES NOT WARRANT THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED, NON-INFRINGING OR ERROR FREE, OR THE TIMELINESS, ACCURACY OR ADEQUACY OF ANY RESULTS RELATED TO THE PLATFORM, OR THAT THE PLATFORM WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS.
6.4. LIABILITY LIMITATIONS.
EXCEPT WITH RESPECT TO (A) CUSTOMER’S VIOLATION OF THE TERMS AND CONDITIONS OF ITS LICENSE IN SECTION 2, (B) CUSTOMER’S OBLIGATION TO INDEMNIFY THE OTHER UNDER SECTIONS 6.1 AND 6.2, (C) CUSTOMER’S PAYMENT OBLIGATIONS DUE UNDER THIS AGREEMENT AND ANY SUBSCRIPTION ORDER: (X) NEITHER PARTY WILL BE LIABLE TO THE OTHER IN CONNECTION WITH THIS AGREEMENT OR ANY SUBSCRIPTION ORDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST DATA, OR FINANCIAL RESULTS OR LOST PROFITS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (Y) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT AND THE SUBSCRIPTION ORDERS, CONSIDERED IN THE AGGREGATE, FOR WHATEVER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR IN TORT OR OTHERWISE, WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT ON A CUMULATIVE BASIS EXCEED AN AMOUNT EQUAL TO THE AGGREGATE OF ALL SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE TIME THAT THE CLAIM FIRST AROSE.
6.5. Customer Data.
Customer agrees that the data provided and utilized by the Provider is of no specific value and hereby waives Provider from any and all liability related to access, use or disclosure of that data.
All notices hereunder by either party will be given by personal delivery (including reputable courier service), fees prepaid, or by sending such notice by registered or certified mail return receipt requested, postage prepaid. Such notices will be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), as the case may be.
7.2. Independent Contractors.
Provider and Customer are independent contractors and this Agreement and each Subscription Order will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
Neither this Agreement nor any Subscription Order may be assigned or transferred by either party without the prior written consent of the other party, not to be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement and all Subscription Orders, in whole but not in part, without the other party’s permission, in connection with any merger, consolidation, reorganization, sale of all or substantially all of such assigning party’s assets or equity, or any other similar transaction. Subject to the foregoing, this Agreement and each Subscription Agreement are binding on the parties hereto and their respective successors and permitted assigns.
7.4. Subcontractors and Third Party Providers.
Nothing herein prohibits Provider from using subcontractors, independent contractors or other third parties to perform functions on behalf of Provider, or to otherwise provide services in connection with the Platform.
7.5. Governing Law and Venue; Dispute Resolution.
This Agreement and each Subscription Order will be governed by the laws of the State of Oklahoma without regard to any choice of law principles that would lead to the application of the laws of another jurisdiction. Venue is strictly and specifically agreed to the District Court of Cherokee County, State of Oklahoma, and Customer irrevocably waives its right to jury trial.
7.6. Force Majeure.
Provider will not be responsible for any delay, interruption or other failure to perform under the Agreement or any Subscription Orders due to acts, events and causes beyond the control of Provider, including, without limitation, acts of God, fires, floods, storms, earthquakes, riots, terrorism or restraints of government, interruptions of Internet, third-party facilities, equipment or telecommunications, or acts of third parties beyond Provider’s reasonable control.
7.7. Modifications, Waivers.
This Agreement is subject to modification, amendment or changed based upon any public health or other governmental directives. Further, Provider may make revisions from time to time, which amendments shall be transmitted to the e-mail provided by Customer and deemed accepted if Customer continues to utilize the services after the date of said transmittal of the amendments. Failure to enforce any term or condition of this Agreement or any Subscription Order will not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Agreement.
If any provision of this Agreement or any Subscription Order is deemed to be invalid, illegal or unenforceable, then the validity, legality or enforceability of the remainder of this Agreement and the Subscription Orders shall not in any way be affected or impaired thereby.
7.9. Entire Agreement.
This Agreement and applicable Subscription Orders contain the entire agreement and understanding between Provider and Customer with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations and proposals, written and oral, relating to such subject matter.
7.10. No Third-Party Beneficiary.
This Agreement and each Subscription Order (a) is entered into solely between the parties and will not be deemed to create any rights in or obligations of any third parties; (b) will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement; and (c) may be executed in one or more counterparts, all of which taken together will constitute one single agreement between the parties. This Agreement may be executed in counterparts by facsimile or electronically scanned signature in portable document format (“.pdf”), each of which shall be deemed an original and all of which together shall constitute one and the same document.
IN WITNESS WHEREOF, an authorized representative of each party has signed this Agreement, effective as of the last signature date below.
DYNAMIC DEVELOPERS, LLC
Dba LOCAL BYTES
SETUP AND CONFIGURATION FEE $ per station
Provider will provide a tablet for each such station, which shall remain the property of Provider. Customer shall return said tablet to Provider upon termination in accordance with this Agreement. If not promptly returned, or in the event of a breach by Customer of any terms, Customer shall be responsible to Provider in the additional amount of $350 per tablet.
Customer agrees to pay the amount of $ per month for ongoing service per station, which amount shall be automatically renewed at the rate in effect at the time of said renewal. Customer further agrees that Provider will assess a convenience fee to all persons making purchases from Customer, which amount will be added to the purchase price and which may be increased from time to time by Provider. The System will also assess a processing fee for payments received, including the convenience fee and delivery fees, if any, by third-party payment processors, which amounts will be deducted from the sales amount before transmittal to Customer. Customer expressly agrees to all such increases and charges without further notice. The capturing and processing of such payments and fees will be completed by an independent third-party who is not party to this Agreement. Customer understands and agrees that all such payments are independent of this Agreement and any failure on the part of the third-party to pay or process does not relieve Customer of any liability for payment of fees, charges or subscriptions. Further, Customer remains solely and exclusively liable for any and all collected sales taxes.
EXAMPLE: Person orders menu items totaling $27.95, including applicable sales taxes. The customer also chooses to have delivery and the delivery fee of $5.99 is added to the cost. The convenience fee and delivery fee will be added to that amount and the combined total charged to the person making the order. The convenience fee is then remitted to Provider and the delivery fee is remitted to the independent contractor doing the delivery. The order total of $27.95, less the processing fees charged by the third-party, is then remitted to Customer.
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Document Name: Local Bytes Agreement
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