BRICK & MORTAR RESTAURANT PARTNERSHIP AGREEMENT
This Brick & Mortar Restaurant Partnership Agreement (the “Agreement”) is made and entered into, as of the last date TODC and Merchant sign the signature page (the “Effective Date”), by and between The On Demand Company, LLC, a limited liability company with a place of business at 867 Fillmore Street, San Francisco, CA 94117 (“TODC”) and party named on the signature page (“Merchant”).
A. Merchant operates the restaurant identified on the signature page to this Agreement (the “Restaurant”).
B. TODC invests time and expenses and provides certain services related to maintaining websites, promoting and managing a restaurant’s food and beverage products on online delivery and other virtual platforms including without limitation websites, UberEats, Door Dash, GrubHub and Postmates (including in each case, their respective affiliates) (collectively, the “Online Platforms”).
C. Merchant desires for TODC to provide, and TODC desires to provide, such investment of time and expenses, and services, in each case, pursuant to the terms and conditions set forth in this Agreement.
Definitions.
“Merchant Content” means the Merchant Marks, Merchant Products, and any materials, documentation, menu descriptions, data, information, goods, services, drawings, images, Merchant Content Images in each case created, developed or provided by Merchant, or any third party (other than TODC or a subcontractor to TODC) on behalf of Merchant, to TODC.
“Merchant Content Image” means any image or photograph of Merchant Content that is provided by TODC or Merchant for use by TODC in connection with the provision of the Services.
“Merchant Marks” means the marks, trade names, brand names, trademarks, logos, service marks, graphics and designs owned by Merchant, as may be mutually amended by the parties from time to time.
“Menu Content” means menu descriptions included on websites and third party platforms, as may be modified by TODC pursuant to this Agreement to incorporate references to Merchant Content as part of the Services.
Services; Authorization; Termination of Prior Agreement.
Services. TODC shall, through the investment to time and expenses, use commercially reasonable efforts to market, promote, offer for sale, sell, distribute and facilitate delivery of Merchant’s food and beverage items offered on Merchant’s menu or otherwise prepared by Merchant (the “Merchant Products”), through Online Platforms, website(s) and other digital means, and in furtherance of such goals provide certain services, which may include the following: provide Merchant with a summary of weekly sales from Online Platforms; update hero images from time to time when deemed appropriate by TODC; update all the food menu images and descriptions from time to time when deemed appropriate by TODC; create a user friendly online menu; market and advertise the Merchant based on analytics of market data and sync this marketing on Online Platforms; endeavor to get the Merchant access to national promotions and franchise like opportunities; manage reviews and responses from customers; manage health of platform page and manage downtime; integrate the menu into different aggregators from time to time as deemed appropriate by TODC; collect payments from Online Platforms and provide one (1) payment via check or ACH to Merchant; provide consolidated financial reports from all Online Platforms; manage the Merchant’s digital advertisements; and endeavor to grow the Merchant’s online delivery and pick up sales, (collectively, the “Services”). TODC, in its sole discretion, may market, promote, offer for sale, sell, and distribute Merchant Products using Merchant’s Restaurant name. TODC shall be entitled to collect all, or any portion of, the payments received by the Online Platforms for the sale of Merchant Products.
Authorization. Merchant hereby authorizes TODC, as its agent and authorized representative with respect to the Online Platforms, to, among other things, initiate and negotiate terms, conditions and agreements on Merchant’s behalf, assume full control and responsibility for managing the Merchant’s portal, including handling payment transactions on Merchant’s behalf, receiving payments from the Online Platforms on accepting such payments on the Merchant’s behalf. For purposes of clarity, the authorization in the prior sentence means that all payments will be directed from the Online Platforms to TODC, and TODC will ensure prompt and accurate remittance of funds to Merchant, after deduction of the Fees (described below in Section 4).
Merchant Obligations. Merchant acknowledges that TODC’s performance of the Services is dependent on Merchant’s timely, accurate, and effective performance of Merchant’s obligations set forth in this Agreement. Merchant will: (i) comply with TODC’s policies and guidelines (the “TODC Policies”), which TODC provides or otherwise makes available to Merchant, including without limitation by posting on TODC’s website, in connection with Merchant’s (1) provision to TODC of any Merchant Content, and (2) use of the Services; (ii) provide to TODC up-to-date menu and Merchant Product information, including without limitation a list of Merchant Products and description of Merchant Products, and to the extent required by applicable law, all ingredient, allergen and caloric information for each Merchant Product; (iii) prepare, cook and package Merchant Products in the same manner as Merchant prepares, cooks and packages sales of the same products directly by Merchant, and in all cases, in a clean and sanitary manner free from contaminants; (iv) maintain all liquor, health department and other federal, state, local and other permits, approvals or registrations required to market, promote, offer for sale, sell and distribute Merchant Products; (v) prepare, cook and operate the Merchant Products in a fully-licensed and permitted kitchen, including without limitation the preparation, packaging and sale of Merchant Products; (vi) provide TODC with copies of all licenses and permits requested, including without limitation, food preparation and food handling licenses, and (vii) satisfy quality and volume standards required by this Agreement (collectively, “Merchant Responsibilities”). As part of the Merchant Responsibilities, within ten (10) days of the Effective Date, Merchant will provide TODC with access to (1) Merchant Content as reasonably required for the performance of the Services in accordance with this Agreement; and (2) any Merchant usage policies or guidelines (collectively “Merchant Guidelines”) applicable to TODC’s use of the Merchant Content in accordance with this Agreement.
Fees; Payment.
Fees and Expenses. As payment for the Services, Merchant agrees to pay TODC twelve and one-half percent (12.5%) of the Negotiated Amount (the “Fees”). “Negotiated Amount” means the price per menu item set by Merchant. The Merchant agrees and acknowledges that TODC is under no obligation to provide any tangible equipment to Merchant, provided however, to the extent TODC (or its partners and affiliates) do provide Merchant with certain equipment, including without limitation, tablets, printers and the like, Merchant shall pay TODC an amount equal to a negotiated amount set forth on an addendum or schedule, as agreed to by and between TODC and the Merchant for use of such equipment (the “Equipment Fee”). For purposes of clarity, the parties agree and acknowledge that the Merchant shall continue to be responsible for all fees and expenses related to Merchant’s marketing and platform costs.
Payment. Following the end of each calendar week during the Term, TODC shall collect all amounts collected by the Online Platforms for sale of Merchant Products through such Online Platforms, including applicable taxes charged to and paid by customers purchasing Merchant Products (collectively, the “Collected Revenues”). TODC shall deduct from the Collected Revenues (1) the Fees and the Equipment Fee, and (2) any charges payable and owing to the Online Platforms, which TODC shall remit to the applicable Online Platform (collectively, the “Charges”). After withholding the applicable Fees and Charges, TODC shall initiate payment to Merchant for the amount remaining from the Collected Revenues within ten (10) days after the end of the last date TODC receives all payments from the Online Platforms. TODC will provide Merchant reasonable documentation of the Merchant Products sold during the applicable month, together with TODC’s calculation of the Fees for such calendar month.
Taxes. Merchant shall be the seller with respect to the sale of any Merchant Products sold pursuant to this Agreement on an Online Platform, and shall be responsible for the payment of all taxes in connection with the sale of Merchant Products, pursuant to this Agreement, including, but not limited to, sales, use, excise, value-added, and other similar taxes or duties. Merchant agrees to reimburse and hold TODC harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Merchant under this Agreement. Merchant shall provide TODC with copies of evidence of payment of such taxes upon TODC’s written request. Each party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases. The parties will cooperate in good faith to minimize taxes to the extent legally permissible.
Proprietary Rights.
Merchant Content. As between Merchant and TODC, except for the license grants to TODC set forth in this Agreement, Merchant shall exclusively own all rights, title and interest in and to the Merchant Content, and all intellectual property rights therein.
License Grant by Merchant. During the Term of this Agreement, Merchant hereby grants to TODC a non-exclusive, worldwide, royalty-free, fully paid-up license, with the right to sublicense, to use, perform, display, distribute, modify, prepare derivative works of, reproduce, make, have made, import and otherwise exploit Merchant Content as reasonably required for the performance of the Services, including without limitation providing the Merchant Products. With respect to the Merchant Marks, TODC shall use the Merchant Marks in conformance with Merchant Guidelines. TODC acknowledges that Merchant is and shall remain the owner of all Merchant Marks, and is also the owner of all goodwill associated with the Merchant Marks, and all goodwill and benefit generated by the use of the Merchant Marks pursuant to this Agreement shall inure exclusively to the benefit of Merchant.
Merchant Content Images. TODC may, in its sole discretion, use Merchant Content Images provided by Merchant, or Merchant Content Images provided by TODC in connection with the provision of the Services.
Ownership by TODC. For purposes of this Agreement, “TODC Knowledge” means the following whether developed by TODC in the course of performing the Services under this Agreement or independently of this Agreement: (a) drawings, photographs, materials, reports, documents, studies, software programs, specifications, and algorithms, and any content, including without limitation Menu Content and Merchant Content Images, or other tangible property (including all intellectual property rights embodied in each of the foregoing), which in each case are written, created, first conceived or otherwise developed by TODC or its personnel or third party contractors on TODC’s behalf; (b) any business methods, methodologies, processes, techniques, know-how or other intangible property (including all intellectual property rights in each of the foregoing) which are created, first conceived or otherwise developed by TODC or its personnel or third party contractors on TODC’s behalf; (c) any data and information that TODC makes available to Merchant in connection with TODC’s performance of the Services, including without limitation any third party data and information that TODC has enriched via TODC’s proprietary internal processes and any metadata generated from providing the Services, provided Merchant is not identified or identifiable by such data, (collectively, “TODC Data”), and/or (d) any derivative works, enhancements, or modifications to any of the foregoing items listed in (a), (b) or (c) above. TODC shall retain all right, title and interest (including all intellectual property rights) in and to the TODC Knowledge. All rights not expressly granted are reserved. There are no implied rights.
Suggestions. TODC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any ideas, suggestions, enhancement requests, recommendations or other feedback provided by Merchant relating to the Services.
Disclaimer of All Warranties. TODC, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SERVICES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF ANY KIND AND TODC HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Representations and Warranties by Merchant. Merchant represents and warrants to TODC that: (a) Merchant has the full right, power and authority to: (i) enter into this Agreement, (ii) grant all licenses and other rights Merchant has granted under this Agreement to TODC, and (iii) perform its obligations under this Agreement; (b) each Merchant Product shall be prepared with high quality ingredients in accordance with all applicable food safety standards and regulations; (c) the Merchant Products and Merchant Content do not and will not infringe upon any third party intellectual property rights; and (d) Merchant will comply with all applicable laws in the performance of its obligations set forth in this Agreement, including without limitation in Merchant’s provision of all weights, measures, sizes, nutritional, allergen and caloric information (to the extent applicable), and other particulars stamped or printed on or otherwise provided with the Merchant Products and/or their containers or provided on Merchant’s menus.
Indemnification. Merchant shall defend TODC and its Affiliates, licensors and their respective officers, directors and employees (“TODC Indemnified Parties”) from and against any and all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) which arise out of or relate to: (i) a claim or threat that the Merchant Content (and the exercise by TODC of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s copyright, trademarks, proprietary or other intellectual property rights. Merchant shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Merchant’s obligations under this Section are conditioned upon (x) Merchant being promptly notified in writing of any claim under this Section, (y) Merchant having the sole and exclusive right to control the defense and settlement of the claim, and (z) TODC providing all reasonable assistance (at Merchant’s expense and reasonable request) in the defense of such claim. In no event shall Merchant settle any claim without TODC’s prior written approval. TODC may, at its own expense, engage separate counsel to advise TODC regarding a Third-Party Claim and to participate in the defense of the claim, subject to Merchant’s right to control the defense and settlement.
Limitation of Liability.
Limits on Liability. TODC’S MAXIMUM LIABILITY TO CUSTOMER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR ANY DELIVERABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IS LIMITED TO THE AMOUNT OF FEES PAID TO TODC IN THE SIX (6) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
No Consequential Damages. IN NO EVENT WILL TODC HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOST DATA OR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT TODC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Essential Purpose. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE IN THIS SECTION 9 (LIMITATION OF LIABILITY) SHALL BE DEEMED TO APPLY: (i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND (ii) NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
Term and Termination.
Term. Unless terminated earlier as expressly permitted by this Agreement, the initial term of this Agreement shall be a period of one (1) year, commencing on the Effective Date, and expiring on the one (1) year anniversary thereof (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party gives written notice to the other at least ninety (90) days prior to the end of the Initial Term, or the then-current Renewal Term, as applicable, of such party’s intention not to renew this Agreement.
Termination of Agreement. This Agreement may be terminated before the expiration date for cause on written notice (i) by either party, if the other party materially breaches any provision of this Agreement and does not cure such breach within thirty (30) days after such party’s receipt of written notice of such breach; or (ii) by either party, if the other party (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
Effect of Termination. Upon termination of this Agreement for any reason, TODC will be (1) paid fees for all Services performed through the effective termination date and (2) reimbursed for all pre-approved, expenses incurred prior to termination of this Agreement. Upon any termination or other expiration of this Agreement, Merchant and TODC shall promptly return to the other party all Confidential Information (as defined in Section 11 (Confidentiality)), papers, materials and other properties of such other party held by each for purposes of performance of this Agreement.
Survival. The rights, duties and obligations of the parties that by their nature continue and survive will survive any expiration or termination, and shall include without limitation this Subsection (d) (Survival), and the following Sections: 1 (Definitions), 5 (Proprietary Rights), 6 (Disclaimer of All Warranties), 7 (Representations and Warranties by Merchant), 8 (Indemnification), 9 (Limitation of Liability), 11 (Confidentiality), 12 (Dispute Resolution and Arbitration; Class Action Waiver), and 13 (General).
Confidentiality.
Confidential Information; Obligations. The parties acknowledge that during the performance of this Agreement, each party may have access to certain of the other party’s non-public, proprietary information, which may include information identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential (“Confidential Information”). Each party agrees that (a) all items of Confidential Information are proprietary to the disclosing Party and shall remain its sole property; (b) to use Confidential Information only for the purposes described herein; (c) not to reproduce Confidential Information, other than for performing its obligations and exercising its rights under this Agreement; and (d) not to disclose and to hold in confidence and protect such Confidential Information from dissemination as if it were its own (at all times using at least reasonable care). Notwithstanding the foregoing, the provisions of this Section shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the recipient; (ii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; or (iv) is independently developed by the recipient. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, and shall provide prompt notice of disclosure requirement to the other party.
Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the disclosing party and that, in the event of such breach, the receiving party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages
Merchant acknowledges that TODC may separately provide the same or similar services for other TODC customers and doing so will not be a breach of this Section 11 or this Agreement.
Dispute Resolution and Arbitration; Class Action Waiver.
This Dispute Resolution and Arbitration; Class Action Waiver provision (the “Arbitration Provision”) facilitates the prompt and efficient resolution of any Disputes that may arise between Merchant and TODC through arbitration. The term “Disputes” means any dispute, claim, or controversy between Merchant and TODC arising out of or relating to any aspect of Merchant’s relationship with TODC, whether in contract, statute, regulation, ordinance, tort, fraud, misrepresentation, negligence, or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this provision (with the exception of the Class Action Waiver clause below).
Arbitration replaces the right to go to court. Merchant understands and hereby agrees and acknowledges that by entering into this Agreement, Merchant and TODC are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Arbitration Provision, Merchant and TODC might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Merchant has the right to opt-out of this Arbitration Provision (as explained below), which means Merchant would retain Merchant’s right to litigate Merchant’s Disputes in a court, either before a judge or jury.
CUSTOMER HEREBY AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN A COURT BEFORE A JUDGE OR JURY.
For all Disputes, Merchant shall first give TODC an opportunity to resolve the dispute by sending TODC a written notification that includes (1) Merchant’s name, (2) Merchant’s address, (3) a written description of Merchant’s claim, and (4) the specific relief Merchant seeks. If TODC does not resolve Merchant’s claim within 45 days after it receives Merchants written notification, Merchant may pursue Merchant’s Dispute in arbitration.
Right to Op-Out of Arbitration and Dispute Resolution Procedures: Notwithstanding the above, Merchant may pursue a Dispute in court if Merchant opts-out of these arbitration procedures in a writing sent by Merchant to TODC within 30 days from the Effective Date (the “Opt-Out Deadline”) by sending TODC a written notification to support@theondemandcompany.com or 867 Fillmore Street, San Francisco, CA 94117, that includes (1) Merchant’s name, (2) Merchant’s address, and (3) a clear statement that Merchant does not wish to resolve disputes with TODC through arbitration. Merchant’s decision to opt-out of this Arbitration Provision will have no adverse effect on Merchant’s relationship with TODC. Any opt-out request sent by Merchant (as evidenced by a postmark or email transmission date) after the Opt-Out Deadline will not be valid and Merchant must pursue Merchant’s Dispute in arbitration.
Any arbitration of Disputes shall be brought with the American Arbitration Association (“AAA”) and will be conducted before a single arbitrator. For Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. The arbitrator may order such discovery as allowed by applicable law and the AAA rules. However, discovery rights and rights of appeal generally are more limited in arbitration than in court. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and that award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law.
Class Action Waiver: Except as required by applicable law or otherwise provided in this Arbitration Provision, the arbitrator may not consolidate more than one person’s claims, and may not preside over any form of a class or representative proceeding of claims (such as class action, representative action, or private attorney general action) unless Merchant and TODC specifically agree to do so in writing following initiation of the arbitration. If Merchant pursues Merchant’s Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to Merchant.
Severability. If any clause within this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this provision will be given full force and effect, except that in the event the Class Action Waiver is found to be unenforceable by a final judgment, then this Arbitration Provision shall not be applicable to the parties.
General.
Insurance. Merchant shall, at its own cost, obtain and maintain product liability and comprehensive general liability insurance coverage for an amount that would be customary for a business of an equivalent size to Merchant operating in the restaurant and food services industry. Merchant shall ensure that the insurance policy remains in effect throughout the term of this Agreement and for three years after termination or expiry of this Agreement (during which time the policy must cover Merchant’s business relating to the Products). On the TODC’s request, Merchant shall supply the TODC with a copy of the policy and evidence of Merchant’s payment of premiums to the insurer. The insurer must at all times be a reputable insurance company.
Independent Contractor Relationship. TODC’s relationship with Merchant is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment, franchise or similar relationship. Neither party has the authority to bind the other or to incur any obligation on its behalf.
Successors and Assigns. TODC shall have the right to (a) assign this Agreement pursuant to a merger, acquisition, sale of assets, operation of law, or otherwise and (b) delegate the performance of its duties or obligations hereunder without the prior written consent of Merchant. Merchant shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of TODC. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; (d) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day; or (e) by certified or registered mail, return receipt requested, upon verification of receipt. Notices to each party shall be sent to the address first written above, or other address as a party may provide in writing.
Governing Law; Forum. The Federal Arbitration Act, the laws of the State of California and applicable U.S. federal law govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. Except for Disputes subject to arbitration as described above, with respect to any disputes relating to this Agreement, each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Los Angeles County, California as applicable, for any matter arising out of or relating to this Agreement.
Severability. Except for the Arbitration Provision, if a court of law holds any provision of this Agreement to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected.
Waiver; Modification. If a party waives any term, provision or breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by that party. This Agreement may be modified only by mutual written agreement of authorized representatives of the parties.
Force Majeure. Except for Merchant’s payment obligations, neither party shall be liable for any failure or delay in performance under these this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
Entire Agreement. This Agreement, including all applicable exhibits, constitute the entire agreement between the parties relating to this subject matter and supersedes all agreements, whether prior or contemporaneous, written or oral, concerning such subject matter.