Acceptance of Terms
This Agreement, including the appendices attached hereto, (collectively the “Agreement”) is made and entered into by and between eHungry, Inc., a North Carolina company with its mailing at 8480 Honeycutt Rd. Suite 200 Raleigh, NC 27615 (“eHungry.com”), and you or your company (“Company” or "Reseller"). eHungry.com and Company shall be referred to individually as “Party” or collectively as the “Parties.” Words and phrases with initial letters capitalized and not otherwise defined above or below shall have the meanings set forth in Appendix A attached hereto.
PLEASE CAREFULLY READ THESE COMPANY PROGRAM TERMS AND CONDITIONS CAREFULLY BEFORE ENROLLING IN THE EHUNGRY.COM COMPANY PROGRAM. BY SIGNING, CLICKING "I AGREE" AND/OR A SIMILAR AFFIRMATION SUCH AS SIGNING INTO YOUR ACCOUNT, COMPANY ACKNOWLEDGES AND AGREES THAT THE COMPANY PROGRAM AND COMPANY’S PARTICIPATION IN THE PROGRAM IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. COMPANY REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. IF COMPANY DOES NOT AGREE OR IS NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, COMPANY SHOULD NOT ACCEPT THE AGREEMENT, CLICK ON THE “I AGREE” BUTTON AND/OR SHOULD NOT SEEK TO PARTICIPATE IN THE PROGRAM.
1.2 I. RESELLER
A. Rights Granted.
1. Company Appointment.
Subject to and in accordance with the terms and conditions of this Agreement, eHungry.com hereby appoints Company as a nonexclusive reseller of the eHungry.com Services to Restaurants. In connection with such appointment, eHungry.com hereby grants to Company a nonexclusive, nontransferable right to market and otherwise promote the eHungry.com Services to Restaurants, solicit orders from interested Restaurants for eHungry.com Services, and refer such Restaurants to eHungry.com for potential enrollment in one or more eHungry.com Service either under the eHungry.com brand or the Company's own brand.
Section I. A.1 sets forth the entirety of Company’s right to market, promote, offer, sell, and distribute the eHungry.com Services. Without limiting the generality of the foregoing, Company will not, directly or indirectly (a)market, promote, offer, sell or otherwise distribute any of the eHungry.com Services except as specifically set forth in this Agreement, or (b) remove, alter, distort, cover or otherwise modify any legal notices (including, without limitation, any notice of Proprietary Rights) appearing in or on, or that may be included with, any content, documentation, or other materials furnished or otherwise made available to Company by eHungry.com under this Agreement. Company acknowledges that the rights granted to market, promote, offer, sell and otherwise distribute the eHungry.com Services hereunder are subject to any and all applicable rights of third parties. Company will comply with all third-party restrictions and limitations on use of the eHungry.com Services that are made known to Company. eHungry.com may at any time modify its grant of rights to the extent necessary to ensure compliance. Company acknowledges and agrees that as between eHungry.com, Company and Restaurant, eHungry.com maintains privity of contract for eHungry.com Services between it and the Restaurant.
3. No Delegation.
Company shall not delegate performance of any of its obligations under this Agreement (other than to its own employees) without eHungry.com's prior written authorization. Company will ensure that all authorized persons performing such obligations are properly qualified and experienced to perform the same.
B. Company Obligations.
1. Password(s). eHungry.com will issue a password(s) to Company to enable Company and/or its employees and agents to access an account via the eHungry.com Website. Company will restrict access to such password(s) and account to those employees and agents of Company as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent of Company accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access.
2. No Unauthorized Warranties. Company shall accurately describe eHungry.com, its Companys, and the eHungry.com Services to each Restaurant. Without limiting the generality of the foregoing, Company will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any eHungry.com Service that is beyond those stated in eHungry.com’s then-current and officially approved marketing and promotional materials for the applicable eHungry.com Service. Company is not authorized to, and will not, make any representation or warranty on behalf of eHungry.com except as eHungry.com may expressly consent to in writing.
3. Billing Obligations. Company will be fully responsible for billing its Restaurants for any fees and collecting on those fees.
4. Payment Obligations. Company will be responsible for having an active American Express, Visa, MasterCard or Discover credit card on file for eHungry.com to bill. If eHungry.com cannot successfully charge a Company credit card on its due date, eHungry.com will provide a 72 hour notice to the Company before suspending all account(s). If Company has not paid its outstanding fees within sixty (60) days, eHungry.com reserves the right to delete the Company account and all Restaurants accounts associated with Company.
5. Transfer of Restaurants. If Company no longer wants to resell eHungry.com services at any time, Company can transfer those accounts to eHungry.com. There are no costs associated with this transfer.
6. Restaurant Accounts. If Company violates this Agreement or eHungry.com's Terms of Service, Company forfeits all restaurant accounts, customers and data associated to it.
C. eHungry.com's Obligations.
1. Billing Obligations. eHungry.com shall bill Company for all eHungry.com Services, as applicable. Billing shall be accordance with the terms of the Plan and Services selected.
2. Customer Service. If the Reseller is current in payment of all fees owing to eHungry.com and is otherwise not in default under such agreement, eHungry.com and/or its Suppliers shall provide customer service to Reseller via email and online methods.
3. Technical Assistance. eHungry.com will provide reasonable technical assistance to Company as may be necessary and appropriate to assist Company in effectively carrying out its obligations under this Agreement.
D. eHungry.com Services. eHungry.com reserves the right to refuse to provide eHungry.com Service to any Restaurant. In accordance with the terms and conditions contained herein, eHungry.com will host all of the eHungry.com Services on servers maintained by or on behalf of eHungry.com or one or more of its companys. Subject to the terms hereof, eHungry.com will use commercially reasonable efforts to provide the eHungry.com Services to Approved Restaurants and maintain the same in an uninterrupted and errorfree fashion consistent with its practices in effect as of the Effective Date, provided that the applicable Reselleris not in default of its obligations to eHungry.com pursuant to this Agreement or the Terms of Service.
1. Cost of Performance. Unless otherwise expressly provided herein, each Party shall be solely responsible for the costs of its own performance hereunder, and will not be entitled to any reimbursement from the other Party for such costs.
1. Enrollment. Subject to Company’s compliance with the terms and conditions of this Agreement and achieving compliance with the applicable certification requirements, eHungry.com will, in its sole discretion, approve Company and/or its solution. Your initial and continued approval shall be governed by the terms of this Agreement and the applicable Requirements, which may be modified from time to time.
2. DISCLAIMER. CERTIFICATION BY EHUNGRY.COM DOES NOT INCLUDE ANY CERTIFICATIONS AND/OR REGISTRATIONS THAT MAY BE REQUIRED FOR COMPANY’S COMPLIANCE WITH FEDERAL, STATE OR INDUSTRY LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION, REGULATIONS FOR THE STORAGE, HANDLING, OR PROCESSING OF CARDHOLDER INFORMATION SUCH AS THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD. COMPANY UNDERSTANDS AND AGREES THAT BY CERTIFIYING COMPANY, EHUNGRY.COM IS NOT (I) GUARANTEEING, REPRESENTING OR WARRANTING THE PERFORMANCE OF THE COMPANY; (II) THAT THE COMPANY IS IN COMPLIANCE WITH FEDERAL, STATE AND INDUSTRY LAWS AND REGULATIONS; OR (III) THE SECURITY OF COMPANY'S SYSTEMS.
III. TERMS AND CONDITIONS
A. Term and Termination.
1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, continue thereafter unless and until either Party provides the other Party with at least sixty (60) days written notice of its intent to terminate this Agreement, unless Company violates this Agreement or eHungry.com's Terms of Service in which case the account(s) may be terminated immediately.
2. Termination by eHungry.com. eHungry.com may terminate this Agreement immediately and without advance notice if: (a) Company is in breach or default of any other obligation set forth in of this Agreement; (b) eHungry.com determines, in its sole discretion, that Company’s business practices are detrimental to the achievement of eHungry.com business objectives; (c) eHungry.com has reason to believe that there is an alleged or actual violation by Company of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof; (d) Company violates eHungry.com’s Acceptable Use Policy; (e) Company does not establish three (3) Restaurant accounts for a period of six (6)
months or greater; (f) any Person that eHungry.com reasonably determines to be a competitor or prospective competitor of eHungry.com or any of its Companys acquires the power or ability, directly or indirectly, to exercise any controlling influence over Company or Company’s management, operations or policies (either alone or pursuant to an arrangement or understanding with one or more Persons); or (g) Company (i) makes a general assignment for the benefit of creditors, (ii) files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, (iii) becomes subject to any proceedings under any bankruptcy or insolvency law where such proceeding has not been dismissed within sixty (60) days, or (iv) has wound up or liquidated, voluntarily or otherwise.
3. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) Company shall promptly return to eHungry.com all equipment, sales literature, documentation and materials supplied by eHungry.com, (ii) eHungry.com may choose to continue to provide the eHungry.com Services to any and all Approved Restaurants and assume sole responsibility for such Approved Restaurants for purposes of this Agreement; and (iii) Company’s right to earn revenue through eHungry.com shall terminate.
4. Survival. Upon expiration or termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (a) all accrued payment obligations hereunder shall survive such expiration or termination, if applicable; and (b) any other provisions of this Agreement that should reasonably survive expiration or termination shall survive such expiration or termination.
B. Representations and Warranties.
1. Company. Company represents and warrants to eHungry.com that: (a) Company will conduct its business at all times in a manner that reflects favorably on the goodwill and reputation of eHungry.com and its Supplier(s) and will not engage in any illegal or unethical business practices; and (b) all representations and statements made by Company in this Agreement, or in any other document relating hereto by Company or on Company’s behalf, are true, accurate and complete in all material respects. Company hereby authorizes eHungry.com to investigate and confirm the information submitted by Company herein. For this purpose, eHungry.com may utilize credit bureau/reporting agencies and/or its own agents.
2. Mutual. Each Party represents and warrants to the other that (a) it has full power and legal right to execute and deliver this Agreement and to perform its obligations under this Agreement, (b) no authorization or approval from any third Party is required in connection with such Party’s execution, delivery or performance of this Agreement, (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, and (d) it has all right, title or interest, or valid license to use, its respective Trademarks, and that its grant of rights associated therewith do not violate any Proprietary Rights of any third Party.
3. Third-Party Programs. Company acknowledges that the eHungry.com Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs and software developed by a Supplier. Company will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. eHungry.com makes no warranty, express or implied, with regard to any such third-party software.
C. Indemnification. Company shall defend, indemnify, and hold eHungry.com, its Companys, and any of their officers, directors, agents and employees harmless from and against any action, claim or suit brought against eHungry.com or its Companys, including any and all losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or out of: (a) any breach or alleged breach by Company of any representation, warranty or other obligation of Company under this Agreement; (b) any alleged or actual violation by Company of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body having jurisdiction over Company and the subject matter hereof; (c) the negligence or willful misconduct of Company, its employees or agents; (d) any violation of eHungry.com’s Acceptable Use Policy; (e) Company’s advertising, marketing, promotion, sale, or distribution of any of the eHungry.com Services; or (f) the inaccuracy of information provided to eHungry.com by Company regarding a Restaurant. In the event Company causes fines and/or penalties to be charged to eHungry.com for its violation of Card Association Rules, Company agrees to immediately reimburse eHungry.com for said fines or penalties.
D. Warranty and Disclaimer.
1. WARRANTY. EHUNGRY.COM DOES NOT REPRESENT OR WARRANT THAT THE EHUNGRY.COM SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. COMPANY ACKNOWLEDGES THAT THE EHUNGRY.COM SERVICES ARE NETWORKBASED SERVICES, WHICH MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. IN SUCH AN EVENT AND SUBJECT TO THE TERMS HEREOF, EHUNGRY.COM SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL PROVIDE ADJUSTMENT, REPAIRS AND REPLACEMENTS WITHIN ITS CAPACITY THAT ARE NECESSARY TO ENABLE THE EHUNGRY.COM SERVICES TO PERFORM THEIR INTENDED FUNCTIONS IN A REASONABLE MANNER. YOU ACKNOWLEDGE THAT EHUNGRY.COM DOES NOT WARRANT THAT SUCH EFFORTS WILL BE SUCCESSFUL. IF EHUNGRY.COM'S EFFORTS ARE NOT SUCCESSFUL, YOU MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION III.A1. THE FOREGOING SHALL CONSTITUTE COMPANY’S SOLE REMEDY AND EHUNGRY.COM’S SOLE LIABILITY, IN THE EVENT OF INTERRUPTION, OUTAGE OR OTHER DELAY OCCURRENCES IN THE EHUNGRY.COM SERVICES.
2. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EHUNGRY.COM SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE WITH RESPECT TO THE EHUNGRY.COM
SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT.
E. LIMITATION OF LIABILITY AND DISCLAIMERS
1. DISCLAIMER. EHUNGRY.COM EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS ARISING FROM OR RELATED TO THE EHUNGRY.COM SERVICES, THIRD-PARTY SERVICE PROVIDERS OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, LIABILITY OR LOSS ASSOCIATED WITH UNAUTHORIZED ACCESS TO A SERVER, COMPANY INTERFACE, WEBSITE, FACILITY, YOUR DATA OR YOUR CUSTOMER DATA (INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION) DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS, INCLUDING HACKING, OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND EHUNGRY.COM'S REASONABLE CONTROL. COMPANY EXPRESSLY AGREES THAT EHUNGRY.COM SHALL NOT BE LIABLE FOR ANY LOSS ARISING FROM: (I) A THIRD PARTY’S INFILTRATION OF EHUNGRY.COM SERVICES, SYSTEMS OR WEBSITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDoS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER SOFTWARE PROGRAMS, OR TECHNOLOGY; (II) DISRUPTION, DAMAGE, INTERCEPTION, UNAUTHORIZED ACCESS TO OR EXPROPRIATION OF THE EHUNGRY.COM SERVICES, OR ANY SYSTEM, PROGRAM, DATA, TRANSACTION OR PERSONAL INFORMATION BELONGING TO EHUNGRY.COM, YOU OR ANY THIRD PARTY; OR (III) THE LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR THE SERVICE.
2. No Consequential Damages. EXCEPT FOR CLAIMS ARISING FROM CRIMINAL OR WILLFUL MISCONDUCT, THE PARTIES AND THEIR VENDORS (AND ANY OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS OF THE PARTIES AND THEIR VENDORS) SHALL BE LIABLE ONLY FOR DIRECT, OUT-OF-POCKET DAMAGES, AND SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR BUSINESS, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. THIRD PARTY PRODUCT AND SERVICES. EHUNGRY.COM MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER IN RELATION TO THIRD PARTY PRODUCTS AND SERVICES. COMPANY’S RESALE, OR USE OF THIRD PARTY PRODUCTS AND SERVICES IS AT ITS OWN RISK. EHUNGRY.COM ASSUMES NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR CLAIMS OF LOSS AND/OR FRAUD INCURRED RESULTING FROM THE RESALE, USE OF OR CONCLUSIONS DRAWN FROM ANY THIRD PARTY PRODUCT OR SERVICE, REGARDLESS OF WHETHER OR NOT EHUNGRY.COM IS A RESELLER OF OR REFERRAL AGENT FOR SUCH PRODUCT OR SERVICE.
4. Amount. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, EHUNGRY.COM’S LIABILITY WITH RESPECT TO ANY CLAIM UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AGGREGATE COMPENSATION PAID TO COMPANY BY EHUNGRY.COM DURING THE SIXTY (60) DAYS PRIOR TO ANY SUCH CLAIM OF LIABILITYOR U.S. $1,000.
F. Ownership and Use of Data. To the extent permissible and in compliance with Card Association Rules, applicable law, and as between the Parties, eHungry.com shall retain full ownership of all data submitted by Company and/or Restaurant in connection with Restaurant’s enrollment for and use of the eHungry.com Services and hosted or stored on eHungry.com servers, including but not limited to: name, mailing and delivery address, email address, phone number, dollar amount of purchase, type of purchase and description of purchase. eHungry.com agrees to use such data only as necessary to perform hereunder and for no other purpose, and hereby grants Company a royalty-free, fully paid up right, during the Term, to use such data only as necessary to perform its rights and obligations hereunder and for no other purpose. Nothing in this Agreement shall prevent or restrict Company from using any information it collects or receives independent of its performance under this Agreement.
G. Intellectual Property.
1. eHungry.com. The Parties agree that eHungry.com owns and retains all right, title and interest in and to the eHungry.com trademarks the eHungry.com Website, the eHungry.com Services, all content and documentation furnished to Company by eHungry.com hereunder, and the eHungry.com technology. No title to or ownership of any of the foregoing is granted or otherwise transferred to Company or any other entity or person under this Agreement. Company shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the eHungry.com Services or related technology.
2. Company. The Parties agree that Company owns and retains all right, title and interest in and to the Company trademarks and Company reserves all rights in the foregoing.
3. Use of Trademarks. Each Party hereby grants to the other Party the right to use, reproduce, publish, perform and display the other Party’s Trademarks in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to the eHungry.com Services. Each Party shall strictly comply with all standards with respect to the other Party’s Trademarks contained herein or which may be furnished by such Party from time to time. All uses of the other Party’s Trademarks shall inure to the benefit of the Party owning such Trademark. Neither Party shall create a combination mark consisting of one or more Trademarks of each Party. Either Party may update or change the list of Trademarks usable by the other Party hereunder at any time by written notice to the other Party.
4. Use the Appropriate ® or ™ Symbol. Company must reproduce any eHungry.com Marks exactly as shown on Appendix A, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.
5. Provide Appropriate Trademark Attribution. Company must include a statement of ownership when displaying or reproducing any eHungry.com Marks. The statement should read: “eHungry.com and the eHungry.com logo [or any other applicable mark] are trademarks or registered trademarks of eHungry, Inc.” If it is not feasible to include the attribution statement, it is acceptable to use a general-purpose attribution statement in a form such the following: "All other trademarks are the property of their respective owners."
6. Trademarks and Domain Registration. Company shall not use, register or attempt to register any: (a)eHungry.com Marks; or (b) Trademarks; or (c) domain names that eHungry.com reasonably deems to be confusingly similar to any of the eHungry.com Marks or the eHungry.com Website.
7. Further Assurances. Each Party shall take, at the other Party’s expense, such action (including, without limitation, execution of affidavits or other documents) as the other Party may reasonably request to effect, perfect or confirm such other Party’s ownership interests and other rights as set forth in this Section G.
H. Confidentiality and Nondisclosure.
1. Use of Confidential Information. Each Party that receives information (the “Receiving Party”) from the other Party (the “Disclosing Party”) agrees to use reasonable best efforts to protect all non-public information and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a
similar nature. Each Party agrees that the terms and conditions of this Agreement will be Confidential Information, provided that each Party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business.
2. Exclusions. The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party, (b) was in or entered the public domain through no fault of the Receiving Party, (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by governmental or judicial order, requested in response to legal or governmental inquiries, or disclosed in connection with judicial and/or arbitral proceedings between the Parties, in which case the Party so requested shall give the other Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment or (e) the Receiving Party can document was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the Disclosing Party, the Receiving Party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other Party. Each Party acknowledges that breach of this provision by it may result in irreparable harm to the other Party, for which money damages may be an insufficient remedy, and therefore that the other Party will be entitled to seek injunctive relief to enforce the provisions of this section.
I. Compliance with Law and eHungry.com Guidelines. Company will comply, at its own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to Company, its business or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof. Company acknowledges that Company, and not eHungry.com, is responsible for the security of Cardholder Data while in Company’s possession. At all times during the term of the Agreement, Company will comply with all applicable laws, regulations and Card Association rules, including, without limitation, the Payment Card Industry Data Security Standard (PCI DSS). In addition, Company shall comply with all the current policies, procedures and guidelines of
eHungry.com governing the eHungry.com Services, including, without limitation, eHungry.com’s Acceptable Use Guidelines, incorporated herein by reference and shall not sell the eHungry.com Services to any Restaurants that sell products or services that are prohibited by such guidelines. Company shall not use the eHungry.com Services in any manner, or in furtherance of any
activity that may cause eHungry.com to be subject to investigation, prosecution, or legal action. The eHungry.com Acceptable Use Guidelines are available at http://www.ehungry.com/tos.php. eHungry.com reserves the right to amend, modify or change such policies, procedures, and guidelines at any time.
J. General Provisions.
1. Publicity. The Parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither Party will have any obligation to do so. In addition, neither Party will issue such publicity and general marketing communications concerning this relationship without the prior written consent of the other Party.
2. Non-exclusivity. This Agreement does not confer on either Party any rights that are exclusive. Each Party is free to contract with others with respect to the subject matter of this Agreement.
3. Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement shall make them joint venturers, Companys, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise.
4. Non-solicitation. Company shall not directly or indirectly, whether or not for compensation, engage in any business activity (whether as an employee, proprietor, officer, director, agent, trustee, Company or creditor lending money for the purpose of establishing or operating any such business) that (a) induces or attempts to induce, directly or indirectly, any Restaurant to modify or terminate such Restaurant's business association with eHungry.com or (b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between eHungry.com and any Restaurant, client, supplier, consultant, agent or employee of eHungry.com. The Parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to eHungry.com for which there is no adequate remedy at law and that in the event of any breach or violation or threatened breach or violation of these non-solicitation provisions, eHungry.com be entitled to temporary, preliminary and permanent injunctive relief and such other legal and equitable remedies as may be provided by applicable law (without the necessity of posting any bond or other security), including damages, costs of suit and attorney's fees.
5. Notices. All legal notices to Company shall be given electronically, sent to the electronic mail address provided in the Company Application and/or posted in the Announcement section of Company’s eHungry.com account. All notices to eHungry.com shall be in writing and sent to eHungry, Inc. 8480 Honeycutt Road Suite 200 Raleigh, NC 27615 or to (678) 412-1477 (fax), Attention: Legal Department. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.
6. Amendment. eHungry.com may amend this Agreement at any time upon notice to Company of not less than thirty (30) days prior to the effective date of such amendment.
7. Severability; Headings. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
8. Governing Law; Jurisdiction. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of North Carolina, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. Company hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Wake County, North Carolina with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts.
9. Waiver. The failure of any Party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.
10. Assignment. Company will not assign this Agreement or any rights hereunder without the prior written consent of eHungry.com, except that eHungry.com’s prior written consent will not be required for an assignment as a result of any Company merger, consolidation, reorganization or similar transaction involving all or substantially all of the assets of Company. In any such event, the assignee must assume and agree in writing to perform all of the assigning Party’s executory obligations and the assigning Party must guarantee performance by the assignee throughout the Term. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.
11. Force Majeure. Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the eHungry.com Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses,
worms, time bombs or any other software program or technology designed to disrupt or delay the eHungry.com Services, or other catastrophes or any other occurrences which are beyond such Parties' reasonable control (each a "Force Majeure Event"), provided that the Party delayed will provide the other Party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.
12. Electronic Signature; Counterparts. Company will acknowledge its consent to this Agreement via electronic signature. If this Agreement is executed in one or more counterparts, each of which will be deemed an original and all of which will be deemed to be one instrument. To expedite the process of entering into this Agreement, the Parties acknowledge that Transmitted Copies of the Agreement will be equivalent to original documents until such time as original documents are completely executed and delivered. “Transmitted Copies” will mean copies that are reproduced or transmitted via photocopy, facsimile or other process of complete and accurate reproduction and transmission.
13. Interpretation. The words and phrases used herein shall have the meaning generally understood in the payment processing industry. This Agreement shall be construed in accordance with its fair meaning and not for or against either Party on account of which Party drafted this Agreement.
14. Compliance with Export Controls. Company agrees to comply with all applicable export laws and restrictions and regulations and not to export or re-export any eHungry.com intellectual property (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to any person on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Person’s List.
15. eHungry.com's Terms of Service can be found at http://www.ehungry.com/tos.php
16. Entire Agreement. This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement.
By agreeing to this Agreement, Company acknowledges and agrees, on behalf of its company and for itself, that it has reviewed and understands the Agreement and agrees to be legally bound by all of its terms and conditions.