1. Subscriber Agreement
This Subscriber Agreement (the “Subscriber Agreement”) is between Food Automation-Service Techniques, Inc. d/b/a “Kitchen Brains” (“Provider”) and the entity accepting to these terms (“Customer”). This Subscriber Agreement controls Customer’s access to Provider’s services (the “Service”) and its associated applications and website. By clicking “I Agree,” or using the Service as a subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is accepting this Subscriber Agreement on behalf of an entity such entity shall be deemed the Customer hereunder and such individual hereby represents and warrants that he/she has the power and authority required to bind such entity to this Subscriber Agreement. IF CUSTOMERS REGISTER FOR A FREE TRIAL OR ARE OTHERWISE GIVEN EVALUATION ACCESS OF PROVIDER’S SERVICES, THIS AGREEMENT WILL ALSO APPLY.
2. The Service and Associated Software
For purposes of this Subscriber Agreement, “Customer Data” shall mean the structured and unstructured data and any files or attachments originating from devices, equipment, and appliances, being monitored or otherwise controlled, or submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. Provider will take steps to protect the Service from any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service. If Customer has engaged a third-party purchasing agent to purchase Services on its behalf, such purchasing agent is not the Customer, and Customer agrees that Customer is still solely responsible for compliance with this Subscriber Agreement.
3. Customer Obligations
- Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users in accordance with applicable local laws. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Subscriber Agreement. Provider shall not be held liable for any actions on the part of Customer’s Administrator(s).
- Unless specifically otherwise permitted via signed writing, Customer will not: (i) rent, sell, resell or lease the Service to any third party. Additionally, Customer will not: (ii) use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
4. Customer’s Use of Third Party Services.
Provider does not warrant or support any third party service (e.g., a service that utilizes the Provider API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
5. Intellectual Property Rights
- Limited License to Use Customer content. Customer hereby grants to Provider a limited, nonexclusive and nontransferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display the Customer Data for the limited purpose of (i) providing the Service and associated customer support to Customer; (ii) displaying the Customer Data to the End Users; and (iii) analyzing and improving the Service.
- Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Provider any rights or interest in or to the Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Provider Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
- Use of Customer Suggestions. Provider may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of Provider. Provider may also share and publish aggregate, anonymized data about the use of our Service by our customers.
- Provider Customer List. Provider may include Customer’s name in a list of Provider’s Customers online and in print and electronic marketing materials.
6. Fees and Payment
By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. If Customer subscribes to the Service under any promotional subscription fee, some additional restrictions may apply. Free or discounted introductory offers are only available upon specific approval from Provider. The granting of such approval shall be at Provider’s sole and absolute discretion. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Provider to charge such fees using Customer’s selected payment method. With Customer approval, Customer accounts may be set to auto-renew and as such may be subject recurring invoicing and payments. Fees will be incurred and charged on an annual, quarterly, or monthly basis based on Customer’s subscription. Provider may automatically invoice Customer for such renewal on or before the renewal date associated with Customer’s account unless Customer has terminated the Service or Provider terminates the Service. Customer must cancel the Service prior to its renewal date in order to avoid invoicing of the next period’s fee. If Customer chooses to cancel the Service, Customer may use the Service until the end of the current period but will not be issued a refund for the most recently (or any previously) charged fees. Customer can cancel Service anytime by notifying Provider or online by going into the Customer’s account settings prior to its renewal date.
Provider may revise fee rates and/or the billable amount structure for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to Provider. Provider may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Provider’s net income) and Provider will charge tax when required to do so by law.
Customer will pay all fees as specified in Customer’s Order. Except as otherwise specified herein or in an Order, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) new members (and lapsed members whose subscriptions have been expired or unpaid for 45 or more days) are subject to specified one-time Set-Up fees, (iv) any promotional or other discounts must be applied at the time of the Orders and not in arrears, and (v) Services that are not specifically included in Orders may be available for additional fees, and may be subject to discounts for follow-on or existing customers. The pricing of fees are subject to change by Provider at any time.
Invoicing and Payment. Provider will invoice Customer in accordance with the terms of the Order of the Services. Unless otherwise stated in the Order, invoiced charges are due in full and net 30 days from the invoice date. Alternatively, Provider can accept credit card payments. If Customer provides credit card information to Provider, Customer authorizes Provider to charge such credit card for all Purchased Services listed in the Order for the initial subscription term and to invoice Customer for any renewal subscription term(s) as set forth below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order.
The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional of one year period at the expiration of the existing subscription, unless You provide at least 60 days written notice prior to end of the scheduled subscription term. Provider may at its sole discretion waive the aforementioned 60 day notice requirement. Subscriptions may be upgraded or downgraded on a pro-rated basis, if applicable.
Taxes. Unless otherwise specified in the relevant Order, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder.
Other Charges. We are not responsible for any other fees or charges that you may incur directly or indirectly in connection with use of Our Services. You are solely responsible for any and all other fees, which may include but are not limited to any telecommunications fees, local or long distance phone charges, local internet costs or access fees, and any other charges.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are clearly marked as such on the face of the Purchase Order, any terms and conditions on a Customer purchase order that conflict with this Subscriber Agreement will not apply and are null and void.
Unless otherwise provided in the applicable Order, (a) Services are purchased at a one-year subscription minimum, (b) subscription months may be added at current pricing levels on a prorated basis, (c) periods may be added on a multi-year period up to five (5) years at current pricing levels, (d) subscription periods must run continuously, and any break of subscription service coverage will likely result in loss of Your previously entered data.
8. Usage Limits
Services subscription packages are subject to usage limits. Usage limits are based on Customer’s Order. Generally, usage limits are based on factors that include but are not limited to, the size of your facility, the location of your facility, the dispersion of facilities, and number and type of anticipated Users, devices and applications. Pricing discounts can be arranged for a variety of scenarios and may be based on, multiple locations, number of devices, users or applications, or enterprise versions. Such discounts shall be made available at Provider’s sole and absolute discretion. Multiple facility offerings must be directly owned or closely affiliated with Customer, and Services cannot be shared, re-sold or leased to separate organizations or entities.
9. Beta Testing
From time to time, Beta versions of Services or a portion thereof may be made available. If and the extent such Beta versions are offered, they will be marked as “Beta” and will be provided without warranty of any kind to Customer and on an AS IS basis. Uses of Beta Services are entirely voluntarily, and unless otherwise specified in writing, are free of charge. Provider provides Beta versions of Services to variously assist Provider with testing functionality, determining their utility, and gathering general feedback on certain features of the Services. However, by their nature Customer understands that Beta Services are highly likely to contain defects, and that should Customer’s Users elect to work with Beta Services, that they may encounter serious performance problems and/or loss of data. Provider may discontinue Beta Services at any time in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with use of a Beta Service.
10. Term and Termination
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. A party may terminate this Agreement (i) upon 60 days written notice to the other party, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We reserve the right to terminate this Agreement, and the right to terminate Your or any User's use the Services or Dashboard, or both, for any breaches of the terms of this Agreement by You or the User. Subscription fees following Termination are not refundable in accordance with Section 5.1 (Fees). In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 4(b) and (c), 6-9, 11,12, and 13, as well as any section in this Agreement which by its nature is meant to survive.
- During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; functionality, user experience, sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Data.
- Except as otherwise expressly permitted under this Services Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Provider may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Provider’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Customer may disclose Provider’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
- The obligations set forth in Section 11(b) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.
- By Provider. Provider hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates that the Service or Provider’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Provider have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Provider; (ii) use of any third party app developed using Provider’s API; or (iii) any content, information, or data provided by Customer, End Users, or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY PROVIDER OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- Infringement Claims. If the Service becomes, or in Provider’s reasonable judgment is likely to become, the subject of a claim of infringement, then Provider may: (i) obtain the right, at Provider’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If Provider, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Provider may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
- The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL PROVIDER OR ITS RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL PROVIDER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO PROVIDER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
14. Hosting of the Service
Export Restrictions. The Service is controlled and operated from facilities in the United States. Provider makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Provider may transfer, store and process Customer Data in locations other than Customer’s country. The export and re-export of content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.
Provider may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Provider’s obligations unless affirmatively agreed to by Customer in advance. If, in Provider’s sole and reasonable discretion, the modifications being proposed are material, Provider will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Provider’s obligations hereunder, Customer agrees to be bound by such modifications.
16. Governing Law
Binding Arbitration and Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Subscriber Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Subscriber Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer Agrees to contact Provider to attempt to resolve the dispute in good faith. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Broward County, Florida. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Subscriber Agreement, including, but not limited to any claim that all or any part of the Subscriber Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Broward County, Florida. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Broward County, Florida. Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Services (collectively, “IP Claims”) shall not be subject to arbitration.
- Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
- Force Majeure. Except for payment obligations, neither Provider nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
- Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
- Entire Agreement. This Subscriber Agreement, together with any Provider Order form associated herewith, constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
- Communications from Provider. You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Provider website or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
For questions about these or any Provider terms or policies, email us at email@example.com.