“”

Client Service Agreement

Last Updated Date: April 14, 2021.

This Client Services Agreement (this “Agreement”) is between Lunchbox Technologies Inc., a Delaware corporation (“Lunchbox”) and Customer.

By accepting this Agreement, either by clicking a box indicating your acceptance, executing a Service Order, or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.

1. DEFINITIONS

A.Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either party’s performance under this Agreement.

B. Authorized Users” means employees and contractors of Customer for whom Customer has paid all applicable fees for access to and use of the Services.

 

C. Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Lunchbox’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services; Documentation; and Usage Data. The Customer Data is Customer’s Confidential Information.

 

D. Customer Data” means non-public data uploaded by Customer to the Services, content required by Lunchbox to provide the Services including Customer’s trademark, trade name, logo, menu items, images, and other related content. “Customer Data” also includes any data provided in the duration of this partnership that includes usage data from another platform as well any guest migration information. For the avoidance of any doubt, any information disclosed to the other party containing payment or financial data, personally identifiable information, biographical information, or in the case of information disclosed by Customer, information provided to Customer my its customers or clients, shall be considered Confidential Information or “customer data”

 

E. Documentation” means Lunchbox-provided user documentation relating to the Services (e.g., user manuals and online help files).

 

F. Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.

 

G. Service Order” means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Customer and Lunchbox, including any addenda and supplements thereto. May also be referred to as a License Agreement.

 

H. Order Term” means the Service Order term length specified in the contract term within the applicable Service Order.

 

I. Implementation Services” means any implementation, configuration, design, onboarding, training, or consulting services relating to the Services that are specified in a Service Order or otherwise provided by Lunchbox to Customer.

 

J. Scope Limitations” means any limitations on Customer’s use of the Services specified in a Service Order, such as number of restaurant locations.

 

K. Services” means Lunchbox’s software-as-a-service platform and any related applications; in each case, identified in the applicable Service Order. 

 

L.Usage Data” means data relating to the Authorized Users’ use of the Services or Lunchbox’s other products and services that is aggregated in such a way that it is not associated with Customer.

2. Services

A. Service Orders. Each Service Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.

B. Changes to Service Orders. Either party may, at any time, reasonably request a change to any Order From. Any requested change that the parties mutually accept (a “Change”) will be described in a written change order prepared by Lunchbox and signed by both parties.

C. Access to the Services. Subject to Customer’s payment of all fees and compliance with this Agreement, Lunchbox grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Order Term to use the Services by its Authorized Users solely in connection with Customer’s internal business purposes in accordance with any Scope Limitations and the Documentation. 

D. Documentation. Subject to Customer’s payment of all fees and compliance with this Agreement, Lunchbox grants to Customer a worldwide, non-exclusive, non-transferable non-sublicensable license during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services.

E. Support. Subject to Customer’s payment of all Fees and compliance with this Agreement, Lunchbox will provide support in accordance with the Service Levels set forth in Exhibit A.

F. Subcontractors. Lunchbox may use subcontractors or other third parties to perform its obligations under this Agreement, but Lunchbox will remain responsible for all such obligations.

A. Service Orders. Each Service Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.

B. Changes to Service Orders. Either party may, at any time, reasonably request a change to any Order From. Any requested change that the parties mutually accept (a “Change”) will be described in a written change order prepared by Lunchbox and signed by both parties.

C. Access to the Services. Subject to Customer’s payment of all fees and compliance with this Agreement, Lunchbox grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Order Term to use the Services by its Authorized Users solely in connection with Customer’s internal business purposes in accordance with any Scope Limitations and the Documentation. 

D. Documentation. Subject to Customer’s payment of all fees and compliance with this Agreement, Lunchbox grants to Customer a worldwide, non-exclusive, non-transferable non-sublicensable license during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services.

E. Support. Subject to Customer’s payment of all Fees and compliance with this Agreement, Lunchbox will provide support in accordance with the Service Levels set forth in Exhibit A.

F. Subcontractors. Lunchbox may use subcontractors or other third parties to perform its obligations under this Agreement, but Lunchbox will remain responsible for all such obligations.

3. Implementation Services

A. Performance; Delays. Lunchbox will provide the Implementation Services to Customer as described in the applicable Service Order. If any delays in the Implementation Services occur solely as a result of Customer’s delay, or failure of Customer to perform its obligations under this Agreement or any Service Order, including payment obligations, Lunchbox may extend the performance schedule under the applicable Service Order. Lunchbox will have no liability for any costs or expenses resulting from such delays. 

B. Customer Obligations. Customer will: (1) cooperate with and assist Lunchbox in the performance of Implementation Services; (2) provide the resources specified in the Service Order; and (3) perform all obligations required by Customer under the terms of the Service Order. If Customer fails to comply with the previous sentence, Lunchbox’s ability to provide Implementation Services, meet the performance schedule in the applicable Service Order, and keep fees reasonably in line with any estimates given in the Service Order may be adversely affected. If Customer requests Lunchbox to perform Implementation Services on or with respect to any third-party software, Customer represents and warrants to Lunchbox that Customer has all necessary rights to allow Lunchbox to do so. Customer will ensure that while Lunchbox employees, agents, or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons. 

C. App Store Publishing and Attribution Requirements. All mobile applications configured by Lunchbox in connection with the Services will be published exclusively under Lunchbox’s developer account with the applicable mobile application store, unless otherwise required by such mobile application store’s terms and conditions.  If a mobile application store requires publication under Customer’s own account, Customer will provide Lunchbox with admin-level access to its account to enable Lunchbox to perform the Services.  The Services will at all times include the phrase “powered by Lunchbox” (or other attribution notice if required by Lunchbox) in the placement, size, and format identified by Lunchbox from time to time.    

D. Mutual Trademark License. During the term of this Agreement, each party (“Licensor”) grants to the other (“Licensee”) the right to use the trademarks, logos, and trade names that Licensor may adopt from time to time (“Marks”) solely in connection with the performance of the activities that are permitted by this Agreement. Licensee will use such Marks only in a manner that complies in all material respects with Licensor’s trademark usage policies in effect from time to time. Licensee will submit to Licensor all representations of the Marks that Licensee intends to use for Licensor’s approval of design, color, and other details.  All goodwill arising out of Licensee’s use of Licensor’s Marks will automatically vest in Licensor, and Licensee agrees to take all such actions necessary to effect such vesting.

4. Restrictions + Responsibilities

A. Use Restrictions. Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) rent, lease, or otherwise permit third parties to use the Services or Documentation; (2) use the Services or Documentation to provide services to third parties (e.g., as a service bureau); (3) use Services or Documentation in any way that would violate the Scope Limitations or this Agreement; (4) circumvent or disable any security or other technological features of the Services; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services; (6) modify, translate, or create derivative works based on the Services or Documentation; (7) remove any proprietary notices or labels from the Services or Documentation (such as “powered by Lunchbox”); or (8) use the Services in a manner that violates or attempts to circumvent Applicable Law. This Section 4.A will apply solely to the extent permitted by Applicable Law.

B. Authorized Users; Accounts. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any third party that Customer or an Authorized User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Authorized Users’ accounts. 

C. Customer Systems and Back-Ups. Customer shall obtain and operate all systems and equipment needed to connect to, access or otherwise use the Services, and provide all corresponding back-up, recovery, and maintenance services. Customer shall ensure that all systems and equipment are compatible with the Services. Customer is solely responsible for maintaining the integrity and security of its systems and equipment (physical, electronic, and otherwise). Lunchbox is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data in or through the Services. Lunchbox recommends that Customer perform regular exports and back-ups of Customer Data

5. Third-Party Services; Third-Party Hardware

A. Third-Party Services. Lunchbox and third parties may make available third-party products or services, including plugins, mobile applications, integrations, and related services (“Third-Party Services”) that Customer may elect to purchase or use. Any use by Customer of such Third-Party Services and any exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable Third-Party Service provider. Lunchbox does not warrant or provide support for Third-Party Services, whether or not they are designated by Lunchbox as “recommended,” “certified,” or otherwise. Lunchbox is not responsible for any violations of Applicable Law relating to Third-Party Services, or arising from Customer’s use of Third-Party Services. If Customer uses any Third-Party Services with the Services, Customer grants Lunchbox permission to allow the Third-Party Service and its provider to access Customer Data as required for the interoperation of that Third-Party Service with the Services. Lunchbox is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Service or its provider. Customer is responsible for negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Service provider. Lunchbox does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Services features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation. 

B. Third-Party Hardware. Customer may choose to purchase third-party hardware from Lunchbox (“Hardware”).  Subject to Customer’s payment of all applicable fees, Lunchbox will supply any Hardware specified in a Service Order. Lunchbox does not warrant or provide support for Hardware, whether or not such Hardware is designated by Lunchbox as “recommended,” “certified,” or otherwise. Lunchbox is not responsible for any violations of Applicable Law relating to the Hardware, or arising from Customer’s use of the Hardware. Title and risk of loss in the Hardware passes to Customer upon Lunchbox’s delivery to the shipping carrier.

6. Ownership

A. Lunchbox IP. Lunchbox and its licensors own the Services, Documentation, and Usage Data, including all Intellectual Property Rights in or associated with, and any derivatives of, the foregoing (the “Lunchbox IP”). The Lunchbox IP is protected by copyright law and other Applicable Law. No ownership rights are transferred to Customer by this Agreement. Customer does not have any rights in or to the Lunchbox IP except for the limited express rights granted in this Agreement.

B. Customer Data. Customer owns all right, title, and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to Lunchbox by this Agreement. Lunchbox does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.

C. Feedback. If Customer gives Lunchbox feedback, comments, or suggestions concerning the Services or Implementation Services (collectively, “Feedback”), Customer hereby assigns to Lunchbox all right, title, and interest in and to the Feedback, and Lunchbox is free to use the Feedback without payment, attribution, or restriction.

7. Data

A. License. Customer hereby grants Lunchbox a worldwide, for so long as Lunchbox is providing the services to Customer, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in any media or distribution methods now known or later developed, in accordance with the settings on Customer’s account and the features of the Services Customer elects to utilize.

B. Usage Data. Lunchbox may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Lunchbox may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (1) complying with a regulatory inquiry or judicial action of a governmental body; and (2) improving the Services and developing new products, services, features, and functionality.

8. Confidentiality

Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 8, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.

9. Fees & Payments

A. Fees and Payment.

  1. Customer will pay Lunchbox all fees described in all Service Orders (the “Fees”) in accordance with the terms therein. Unless otherwise agreed in a Service Order, Lunchbox will bill via ACH monthly in advance.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Implementation Services or access to the Services. All amounts paid under this Agreement will be paid in U.S. Dollars.
  2. If Customer believes that Lunchbox has billed Customer incorrectly, Customer must contact Lunchbox no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, otherwise the dispute is waived. 

B. Taxes. Other than federal and state income taxes imposed on Lunchbox, Customer will bear all taxes, duties, and other governmental charges relating to the Services, Implementation Services, and any Hardware.

C. Payment Processing. Lunchbox uses Stripe, Inc. (“Stripe”) to process payments made via the Services.  The processing of payments relating to Customer’s use of the Services will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). Customer hereby agrees to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Lunchbox enabling payment processing services through Stripe, Customer agrees to provide Lunchbox accurate and complete information about Customer, and Customer authorizes Lunchbox to share it and transaction information related to Customer’s use of the payment processing services provided by Stripe.

10. Term & Termination

A. Term. The term of this Agreement will commence on the effective date of the first Service Order between the parties and will continue until terminated in accordance with this Agreement (the “Term”). Upon expiration of a Service Order the Order Term will automatically renew for a term equivalent to the initial Order Term, unless otherwise specified in a Service Order or if either party notifies the other in writing of its desire to terminate the applicable Service Order before the expiration of the then-current Order Term.

B. Termination for Breach or Insolvency. Either party may terminate this Agreement, or any Service Order or SOW, effective upon written notice to the other party, if the other party materially breaches this Agreement (or the Service Order or SOW) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Lunchbox may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches any of the terms of this Agreement relating to Lunchbox’s Intellectual Property Rights or Lunchbox’s Confidential Information. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

C. Effect of Termination. Termination of this Agreement will automatically terminate all active Service Orders, but termination of a single Service Order will not result in termination of this Agreement or any other Service Orders. Upon the termination of this Agreement, or a Service Order, all rights and licenses granted by Lunchbox to Customer under this Agreement or the applicable Service Order will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. 

D. Post-Termination Obligations. Upon any termination of this Agreement, or any Service Order, Lunchbox will make all Customer Data then held on Customer’s behalf by Lunchbox pursuant to this Agreement or the applicable Service Order available to Customer for electronic retrieval for a period of 14 days. After such period, Lunchbox may, but is not obligated to, delete any such Customer Data. If Customer terminates this Agreement for material breach, Customer will pay a pro rata amount of the Fees for any terminated Services and Implementation Services up to and including the last day on which the Services or Implementation Services are provided. If this Agreement is terminated for any other reason, Lunchbox will not refund Customer any Fees paid in advance of such termination, and within 10 days after such termination, Customer will pay Lunchbox all remaining Fees owed under any terminated Service Orders. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Restrictions and Responsibilities), 6 (Ownership), 7 (Data), 8 (Confidentiality), 9 (Fees and Payment), 10.C (Effect of Termination), 10.D (Post-Termination Obligations), 11 (Warranties and Disclaimer), 12 (Indemnification), 13 (Limitations of Liability), 15 (Compliance with Applicable Law; Export), and 16 (Miscellaneous).

11. Warranties & Disclaimers

A. Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms of any other agreement to which it is a party or by which it is otherwise bound.

B. Lunchbox Warranties. Lunchbox represents and warrants to Customer that Lunchbox will perform the Services and the Implementation Services in a good and workmanlike manner in accordance with industry standards.

C. Customer Warranties. Customer represents and warrants to Lunchbox that: (1) Customer has the necessary rights to authorize Lunchbox to use the Customer Data in accordance with this Agreement; and (2) Customer will use the Services in compliance with the Documentation and Applicable Law.

D. Disclaimer. Except for the limited warranties described in this Section 11 (Warranties and Disclaimer), Lunchbox makes no other express or implied warranties with respect to the Services, Hardware, Implementation Services, Documentation, Usage Data, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. Except for the limited warranties described in this Section 11 (Warranties and Disclaimer), the Services, Hardware, Implementation Services, and Documentation are provided “as is.” Lunchbox does not warrant that the Services, Hardware, Implementation Services, or Documentation will satisfy Customer’s requirements, are without defect or error, or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer.

12. Idemdification

A. Customer Indemnification

  1. Defense. At Lunchbox’s option and request, Customer will defend Lunchbox from any actual or threatened third-party claim, proceeding, or suit arising out of or based on any Customer Data, any breach of the Applicable Law, or Customer’s use of the Services (each, a “Claim”). If Lunchbox requests Customer to defend it from any Claim, Lunchbox will: (1) give Customer prompt written notice of the Claim; (2) grant Customer full and complete control over the defense and settlement of the Claim; (3) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Lunchbox without Lunchbox’s prior written consent. Lunchbox may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
  2.  Customer Indemnification. Customer will indemnify Lunchbox from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against Lunchbox in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by Lunchbox in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and (3) all amounts that Customer agrees to pay to any third party to settle any Claim.

B. Lunchbox Indemnification

  1. Defense. Lunchbox will defend Customer from any actual third-party claim, proceeding, or suit arising out of or based on an allegation that Customer’s use of the Services infringes any third-party Intellectual Property Rights (a “Lunchbox Claim”). Customer will: (a) give Lunchbox prompt written notice of the Lunchbox Claim; (b) grant Lunchbox full and complete control over the defense and settlement of the Lunchbox Claim; (c) provide assistance in connection with the defense and settlement of the Lunchbox Claim as Lunchbox may reasonably request; and (d) comply with any settlement or court order made in connection with the Lunchbox Claim. Notwithstanding the previous sentence, Lunchbox will not enter into any settlement that involves an admission of guilt or liability of Customer without Customer’s prior written consent. Customer may participate in the defense of a Lunchbox Claim at its own expense and with counsel of its own choosing.
  2. Indemnification. Lunchbox will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Lunchbox Claim; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Lunchbox Claim (other than attorneys’ fees and costs incurred without Lunchbox’s consent after Lunchbox has accepted defense of the Lunchbox Claim); and (c) all amounts that Lunchbox agrees to pay to any third party to settle any Lunchbox Claim. Lunchbox will have no obligation for any infringement or misappropriation relating to the Services to the extent that it arises out of or is based upon: (i) use of the Services in combination with other products or services; (ii) designs, requirements, or specifications required by or provided by Customer; (iii) use of the Services by Customer outside the scope of the license granted to Customer; (iv) Customer’s failure to use the Services in accordance with instructions provided by Lunchbox; (v) any modification of the Services not made or authorized in writing by Lunchbox; or (vi) use of Third-Party Services that are made available on the Services. This Section 12.B states Lunchbox’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.

13. Limitations of Liability

A. Exclusion of Damages. Neither Lunchbox nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Lunchbox is apprised of the likelihood of such damages occurring.

B. Damages Cap. Lunchbox’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the total amount paid by Customer to Lunchbox during the six months immediately preceding the claim (determined as of the date of any final judgment in an action).

C. Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by Lunchbox to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 13 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.

D. Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 13 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.

14. Publicity

Lunchbox may publicly list Customer as a Customer of Lunchbox and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Lunchbox customers, resellers, or investors.

15. Compliance with applicable law; Export

Each party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.

16. Miscellaneous

A. Governing Law. This Agreement is governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York City, New York. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

B. Non-Solicitation. During the Term and for three years thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Lunchbox to terminate their engagement with Lunchbox. This Section 16.B will apply solely to the extent permitted by Applicable Law.

C. Injunctive Relief. If either party breaches Sections 6 (Ownership) or 8 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.

D. Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.

E. Assignment. Customer may not assign its rights or delegate its performance under this Agreement without Lunchbox’s prior written consent, and any attempt to do so is void. Lunchbox may assign its rights or delegate its performance under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.

F. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.

G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

H. Entire Agreement. This Agreement (including any Exhibits, Service Orders, and SOWs) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.

I. Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.

J. Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.

K. Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.

L. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.

M. Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Lunchbox will be sent to:

Lunchbox Technologies Inc. 

1216 Broadway, New York, NY 10001

Email: sgellman@lunchbox.io

Attn: Scott Gellman

N. Force Majeure. Lunchbox will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Lunchbox’s reasonable control, so long as Lunchbox uses reasonable efforts to avoid or remove those causes of delay or non-performance.

O. Interpretation. If Lunchbox provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”

P. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement

EXHIBIT a

1. Definitions

A. “Available” or “Availability” means the ability to access and use the Services. 

B.Excused Downtime” means when the Services are not Available due to: (1) Scheduled Maintenance; (2) Customer’s use of the Services in violation of the Agreement; (3) failures of Customer’s internet connectivity or Customer’s equipment, services, systems, or other technology (excluding the Services); (4) failures of Lunchbox’s third-party service providers (e.g., AWS, Heroku, etc.); or (5) a force majeure event.

C.Scheduled Maintenance” means any scheduled outages or downtime for maintenance, upgrades, enhancements, or changes to the Services.

D.Service Interruption” means that the Services are not Available.

2. Support

During Lunchbox’s standard business hours, Lunchbox will use commercially reasonable efforts to make available to Customer and its Authorized Users qualified personnel knowledgeable in the Services via telephone numbers and/or email addresses designated by Lunchbox from time to time to: (A) provide advice on the configuration and use of the Services; (B) respond to Service Interruptions and error reporting; and (C) troubleshoot other issues relating to the Services.

3. Availability

Availability. During the Order Term, Lunchbox will make the Services Available 24 hours a day, seven days a week, at least 99.5% of the time as measured on a monthly basis, excluding Excused Downtime (the “Availability Requirement”). Lunchbox will use commercially reasonable efforts to provide advance notice of any Scheduled Maintenance, which may be done via email, or via the Services. Scheduled Maintenance will be performed during a maintenance window expected to least disturb Customer’s Authorized Users where possible. 

A. Services are considered “unavailable” when no Authorized Users can log in to the Services.

B. Availability in a particular month will be calculated as follows:

a = [(b – c) – d] x 100 / (b – c)

“a” = the percentage of Availability in such month;

“b” = the total number of hours in such month;

“c” = the total number of Excused Downtime hours in such month; and

“d” = the total number of hours the Services are unavailable for reasons other than Excused Downtime in such month.

4. Service Credits

If Lunchbox fails to meet the Availability Requirement in any given calendar month, Customer notifies Lunchbox of such failure within 24 hours of the end of the month, and Lunchbox confirms the failure, Lunchbox will provide Customer a credit to Customer’s account equal to 2.5% of the fees paid by Customer attributable to the month in with the failure occurred (each, a “Service Credit”) per incident that caused the service failure. An incident is only eligible for a Service Credit if the incident lasts more than 45 consecutive minutes. Accrued Service Credits may be applied to a future purchase or amount owing only. Service Credits may not be redeemed for cash payments. Service Credits will not exceed, in the aggregate, more than one week of Fees in any one calendar month.

5. Sole and Exclusive Remedy

Service Credits constitute Customer’s sole and exclusive remedy for Lunchbox’s failure to meet the Availability Requirement or otherwise to conform to the requirements of this Exhibit A. 

Arrow-up