These inKind Terms and Conditions ("General Terms") are expressly incorporated into and made a part of the Serving Hospitality Agreement ("Serving Hospitality Agreement") (the Serving Hospitality Agreement and these General Terms, collectively, the "Agreement").
Any defined terms not defined herein shall have the meaning provided in the Serving Hospitality Agreement.
2. CONFIDENTIALITY, PRIVACY AND DATA SECURITY
2.1. Confidential Information
Each party acknowledges that it will have access to certain Confidential Information of the other party and each party agrees that it will not use, for its own account or the account of any third party nor disclose to any third party (except as expressly permitted), any of the other party's Confidential Information.
2.2. Intellectual Property
Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the inKind IP or any portion thereof, or use such inKind IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution. Merchant shall not take any action to challenge or object to the validity of inKind's rights in the inKind IP or inKind's ownership or registration thereof.
2.3. Privacy and Data Security
2.4. Material breach; injunctive relief
Any breach of this section shall be considered a material breach resulting in irreparable harm to inKind for which there is no adequate remedy at law. In the event of such a breach, inKind shall be entitled to injunctive relief in addition to any other appropriate relief.
In this clause, "Confidential Information" means any information disclosed by either party to the other party, which is designated as "Confidential," "Proprietary" or some similar designation. Notwithstanding the foregoing, Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is required by law.
3. MERCHANT REPRESENTATIONS
Merchant represents and warrants to inKind, now and throughout the term of the Agreement, as set forth below. Merchant will notify inKind immediately if any of Merchant's representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement:
3.1. Authority; Qualification
Merchant has the right and authority to enter, and perform its obligations under the Agreement. Merchant is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification.
3.2. Merchant Content
Merchant owns all right, title, and interest in its logo and website imagery, and has the right to grant inKind licenses provided in clause 2.7 of the Serving Hospitality Agreement. The Merchant's logo and website imagery does not violate any applicable laws or infringe any copyright, trademark, other intellectual property, or any other right of any third party.
4. DISCLAIMERS, LIMITATIONS OF LIABILITY, FORCE MAJEURE
The Service, inKind mobile applications, and all related content and materials are provided on an "as is" basis. To the fullest extent permitted by law, they are provided without warranties of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranties arising from course of dealing or usage of trade.
inKind does not warrant that the Service, mobile applications, or related content and materials are accurate, complete, reliable, current, or error-free, that they will meet Merchant's requirements, will be available at any particular time or location or without interruption, that defects or errors will be corrected, or are free of viruses or other harmful components. Use of the Service is at Merchant's own risk and Merchant is solely responsible for any loss or damage to property or data that may result.
inKind does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a Credit. inKind is not a party to any transaction between an inKind User and a participating Merchant or any third-party provider of products or services.
Some state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.
4.2. Limitation of Liability
NEITHER PARTY NOR & ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER INKIND NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE MERCHANT'S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR THE MERCHANT'S USE OF OR ACCESS TO THE SERVICES, (II) INKIND'S DISCONTINUATION OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY THE MERCHANT IN CONNECTION WITH THIS AGREEMENT OR THE MERCHANT'S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY DATA, OTHER THAN IN THE CASE OF GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT. IN ANY CASE, EITHER PARTY AND THEIR AFFILIATES' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THE MERCHANT ACTUALLY PAYS INKIND UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM.
4.3. Force Majeure
inKind, Merchant and their respective affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond inKind's or Merchant's reasonable control (as applicable), including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In the event the force majeure event continues for a period of more than sixty (60) days, either party may terminate this Agreement upon written notice to the other party.
5. REMEDIES FOR BREACH; INDEMNIFICATION
5.1. Remedies for Breach
A "Material Breach" includes, but is not limited to, any breach by Merchant of Sections 2 or 3 of the General Terms and Section 2 of the Serving Hospitality Agreement. In the event of a Material Breach, Merchant shall be obligated to reimburse inKind for any damages suffered by inKind, including any actual, incidental, and consequential damages.
Each party shall indemnify against, and hold the other, its affiliates and their representatives and agents harmless from, any and all actual or direct losses, liabilities, judgments, arbitration awards, settlements, damages and costs (collectively, "Losses"), resulting from or arising out of any third party suits, actions, claims, demands or similar proceedings (collectively, "Proceedings") to the extent they are based upon the acts or omissions of the indemnifying party, or it's business's directors, officers, managers, employees or other agents or from the receipt or use of the Services (including representations about the services) by the indemnifying party, or it's business's directors, officers, managers, employees or other agents.
6. TERM AND TERMINATION; SURVIVAL
This Agreement shall commence on the Effective Date and continue until terminated as provided herein. Notwithstanding the foregoing, Merchant's requirement to honor all Credit shall continue in full force and effect until all Credit has been redeemed in full.
inKind may terminate Merchant's participation in the Service at any time and for any reason by providing Merchant written notice of such termination. Termination shall be effective on the date of delivery of the notice as provided herein. inKind will continue to provide the inKind mobile applications for (6) six months from the termination date.
Merchant may terminate participation in the Service at any time by providing inKind prior written notice at least thirty (30) calendar days prior to termination. In the event that the Merchant terminates this agreement, inKind will continue to provide the inKind mobile applications for (6) six months from the termination date.
Merchant's voluntary termination of the Service or involuntary termination by inKind does not release the Merchant from any liability or obligations as a result of prior Credit sold and that remain outstanding, prior promotion campaigns and/or fundraiser programs that remain outstanding as a result of using the Service.
6.3. Rights and obligations upon termination; survival
Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. inKind shall not be obligated to issue any additional participating Merchant Credits on behalf of Merchant after termination. Merchant shall remain obligated to honor all participating Merchant Credits issued on behalf of Merchant prior to termination and to pay any amounts owed to inKind under this Agreement.
This section and the following additional sections of these General Terms shall survive termination: 2,4 and 8, additionally section 4 of the Serving Hospitality Agreement shall survive termination.
All notices, requests, demands, required disclosures and other communications from inKind to the Merchant will be transmitted to the Merchant by email to the address provided under the Merchant's signature in the Credit Agreement. The Merchant shall send all notices or other communications required to be given hereunder to the Company via email at notices@inKind.com.
7.2. Method of Delivery
A notice that is sent by certified or registered mail will be deemed given three (3) business days after it is mailed. A notice that is sent by Federal Express or other recognized and reputable national overnight courier will be deemed given on the business day following the date such notice is accepted by such overnight courier for delivery to the intended recipient. Any email notice given by inKind shall be deemed to have been delivered and received on the first business day following that on which the electronic mail has been sent (assuming that there is no error in delivery). Any party may designate, by notice to all of the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed to those substitute addresses or addressees.
8. GOVERNING LAW; VENUE
8.1. Governing Law
The laws of the State of Delaware, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between the Merchant and inKind.
All disputes, claims, or differences arising from or relating to this Agreement shall be settled by a single arbitrator in an arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Such arbitration shall take place by telephone or video-conference, if practicable as determined by the arbitrator, or in Austin, Texas if in-person hearings are required. Merchant agrees that by entering into this Agreement, Merchant and inKind are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may seek relief in a court of competent jurisdiction solely to seek immediate injunctive relief where such Party stands to suffer irreparable harm absent such relief.
9.1. Independent Contractors
The parties are independent contractors. Nothing in this Agreement shall be deemed or construed by the parties, nor by any third party, as creating a joint venture, partnership, franchise, or agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other party in any way.
9.2. Third Party Beneficiaries
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
The Merchant will not assign this Agreement, or delegate or sublicense any of the Merchant's rights under this Agreement, without inKind's prior written consent. Any assignment or transfer without inKind's prior written consent is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
The failure by a party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit that party's right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
9.6. Entire Agreement
This Agreement is the entire agreement between the Merchant and inKind regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Merchant and inKind, whether written or verbal, regarding the subject matter of this Agreement.
9.7. Electronic Communications
Merchant agrees that business with inKind may be done electronically and that the provision of notices, disclosures, and other information electronically satisfies any legal requirement that such communications be in writing.