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Operator Terms of Service

These Terms of Service and any Order Form incorporated herein by reference (collectively, this “Agreement”), is entered into between OrderHQ LLC, a New York limited liability company (“OrderHQ”) and the business identified in the applicable Order Form (“Operator”) (each a “Party” and collectively, the “Parties”). This Agreement is effective as of the earlier of (a) the subscription start date specified in the applicable Order Form (as defined below) or (b) the date on which Operator first accesses or uses the OrderHQ Platform (the “Effective Date”). In the event of a conflict between the terms and conditions herein or the provisions in an attachment or Order Form, the terms and conditions in this Agreement shall control except as otherwise expressly set forth in such attachment or Order Form. BY CLICKING TO ACCEPT THIS AGREEMENT, ENTERING INTO AN ORDER FORM WITH ORDERHQ, OR ACCESSING OR USING THE ORDERHQ PLATFORM, OPERATOR AGREES TO BE BOUND BY THIS AGREEMENT. IF OPERATOR DOES NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT AND/OR DOES NOT MEET OR COMPLY WITH ITS PROVISIONS, OPERATOR MAY NOT USE THE ORDERHQ PLATFORM.

1. Provision of the Platform

1.1 OrderHQ Platform. OrderHQ has developed and owns a proprietary cloud-based software platform designed to assist food service and catering operators with advance-order operations, which may include order entry, menu and package configuration, production scheduling, labeling, payments, customer management, reporting, and customer-facing online ordering functionality (the “OrderHQ Platform”). The OrderHQ Platform is provided on a subscription basis for the applicable Subscription Term (as defined below) through OrderHQ’s online signup or checkout process or pursuant to an ordering document submitted by Operator and accepted by OrderHQ, in each case incorporating the terms and conditions herein (“Order Form”). OrderHQ may, in its sole discretion, accept or reject any Order Form submitted by Operator. To access and use the OrderHQ Platform, Operator must have an active Order Form in effect and is responsible at its own expense for obtaining its own Internet access, and any required hardware, software, or other technology.

1.2 Access to the Platform. Subject to the terms and conditions of this Agreement, and Operator paying all amounts owed under an Order Form, OrderHQ shall grant Operator a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right for Permitted Users (as defined below) to access and use the OrderHQ Platform solely for Operator’s business purposes during the Subscription Term. Operator is also bound by any further restrictions set forth in an Order Form. All rights not expressly granted to Operator herein are reserved by OrderHQ and its licensors or other providers. A “Permitted User” shall mean an employee or independent contractor of Operator. Operator shall be liable for all acts and omissions of its Permitted Users. Operator authorizes OrderHQ support personnel to access Operator’s account and Operator Data as reasonably necessary to provide requested support or troubleshoot issues. Such support access will be logged, made visible to Operator through the OrderHQ Platform, and may be disabled by Operator through available account settings.

1.3 Restrictions. Operator shall not (and shall not allow any Permitted User or third party to): (a) use the OrderHQ Platform for the benefit of any third party, except to the extent such third-party access or use is expressly contemplated by this Agreement, or to develop or market any product, software, or service that is functionally similar to or derivative of the OrderHQ Platform, or for any other purpose not expressly permitted herein, (b) permit any non-Permitted User to access or use the OrderHQ Platform, except as expressly contemplated by this Agreement, (c) sell, distribute, rent, lease, post, link, disclose, or provide access to the OrderHQ Platform, directly or indirectly, to any third party except as expressly permitted herein, (d) alter, modify, create derivatives (or compilations or collective works) of, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any underlying software (including source code) or technology associated with the OrderHQ Platform, (e) use any robot, spider, scraper or other automated means to access the OrderHQ Platform, or engage in any unauthorized scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the OrderHQ Platform, and (f) transmit personal data to the OrderHQ Platform that is not necessary for Operator’s use of the OrderHQ Platform. Operator shall be responsible for all acts and omissions of its Permitted Users while using the OrderHQ Platform. Operator shall keep all passwords, login credentials, access codes, or other login information (collectively, “Login Credentials”) safe and secure. Operator is solely responsible for all access and use of the OrderHQ Platform that occurs under such Login Credentials. Operator will promptly notify OrderHQ of any misuse or unauthorized use of Login Credentials. The Order Form may also establish the geographic region in which the OrderHQ Platform will be hosted. For purposes of this paragraph, any references to “OrderHQ Platform” shall also include any related technical documentation provided or made available by OrderHQ to Operator.

1.4 Operator Cooperation. Operator shall (and shall cause each Permitted User to): (a) reasonably cooperate with OrderHQ in all matters relating to the OrderHQ Platform and (b) respond promptly to any OrderHQ request and provide the applicable information and documentation reasonably necessary for the provision of the OrderHQ Platform and ensure such information and documentation are complete and accurate in all material respects.

1.5 Compliance; Consents. Operator shall comply with applicable local, state, federal, national and international laws, regulations and treaties and Operator warrants that (a) it has obtained all rights, permissions, notices, disclosures, authorizations and consents necessary to authorize OrderHQ to collect, receive, host, input, process, use, transmit, distribute and display Operator Data (as defined below) as contemplated by this Agreement; and (b) the Operator Data and OrderHQ’s use thereof as contemplated by this Agreement will not violate any law, Operator’s agreements or representations to End Customers (as defined below), or any rights of any third party, including intellectual property, privacy, publicity and other rights. OrderHQ takes no responsibility and assumes no liability for Operator Data. Operator shall be solely responsible for Operator Data and for determining the legal requirements applicable to Operator’s business and use of the OrderHQ Platform.

1.6 Customer-Facing Portal and End Customers. The OrderHQ Platform may permit Operator to make available an online ordering portal, website functionality, or other interface through which Operator’s customers or prospective customers (“End Customers”) may view Operator offerings, submit orders, provide information, or otherwise interact with Operator (the “Customer Portal”). Operator acknowledges and agrees that OrderHQ provides the Customer Portal solely as a technology tool for Operator and is not the seller, caterer, food provider, merchant, or other provider of Operator’s products or services. All transactions, communications and relationships between Operator and its End Customers are solely between Operator and the applicable End Customer. Operator is solely responsible for its products and services, menus, pricing, descriptions, availability, fulfillment, food preparation and safety, ingredients and allergen information, delivery, cancellations, refunds, taxes, customer service, and other obligations to End Customers, and for providing all terms, policies, notices, disclosures and consents required in connection with the Customer Portal. OrderHQ shall have no responsibility or liability for any dispute, claim, loss, injury, illness, or other matter arising out of or relating to Operator’s products or services or Operator’s relationship with any End Customer.

1.7 Operator Content; Menu Import and Website Content. Operator may upload or otherwise provide menus, product information, pricing, photographs, trademarks, logos, text, business information, and other materials to the OrderHQ Platform (“Operator Content”). The OrderHQ Platform may also include tools that assist Operator in importing, extracting, organizing, generating, or structuring Operator Content, including through artificial intelligence, automated extraction from files, or retrieval of content from websites designated by Operator. Operator is solely responsible for reviewing and approving all Operator Content before it is published, displayed, or otherwise used in connection with Operator’s business. Operator is also solely responsible for determining the legality and accuracy of any card-versus-cash pricing, surcharge, discount, tax rate, menu information, or similar setting, content, or information configured, suggested, or generated through the OrderHQ Platform before it is used or provided to End Customers. If Operator elects to use any photograph, image, or other content generated through artificial intelligence or other automated functionality, Operator is solely responsible for reviewing and approving such content and determining that it fairly and accurately represents Operator’s products or services before it is published, displayed, or otherwise used. Operator acknowledges that automated or AI-assisted functionality may generate inaccurate, incomplete, or incorrect results and agrees that OrderHQ is not responsible for Operator’s failure to review such results. Operator represents and warrants that it owns or otherwise has all rights, licenses, permissions and consents necessary for OrderHQ to host, copy, process, display, modify and otherwise use Operator Content as contemplated by this Agreement, including any photographs or other content obtained from a website identified by Operator.

1.8 Copyright Complaints. OrderHQ respects the intellectual property rights of others and expects Operator to do the same. If a copyright owner or its authorized agent believes that material available through the OrderHQ Platform infringes a copyright, the owner or agent may submit a written notice to OrderHQ’s designated copyright agent containing: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed or, if multiple works are covered by a single notice, a representative list of such works; (c) identification of the material claimed to be infringing and information reasonably sufficient to permit OrderHQ to locate the material; (d) information reasonably sufficient to permit OrderHQ to contact the complaining party, including an address, telephone number, and, if available, an email address; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notices should be sent to: Copyright Agent, OrderHQ LLC, 418 Broadway Ste N, Albany, NY 12207, (516) 218-0304, copyright@orderhq.app. OrderHQ may remove or disable access to material claimed to be infringing and may notify the affected Operator. If Operator believes that material was removed or disabled as a result of mistake or misidentification, Operator may submit a written counter-notice to the designated copyright agent containing: (i) Operator’s physical or electronic signature; (ii) identification of the material that was removed or disabled and the location at which it appeared before removal or disabling; (iii) a statement under penalty of perjury that Operator has a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and (iv) Operator’s name, address, and telephone number, together with a statement that Operator consents to the jurisdiction of the Federal District Court for the judicial district in which Operator’s address is located, or, if Operator’s address is outside the United States, any judicial district in which OrderHQ may be found, and will accept service of process from the person who submitted the infringement notice or that person’s agent. OrderHQ may provide the counter-notice to the complaining party and may restore the removed or disabled material not less than ten (10) nor more than fourteen (14) business days after receipt of a valid counter-notice unless OrderHQ’s designated copyright agent first receives notice that the complaining party has filed an action seeking a court order to restrain the Operator from engaging in the allegedly infringing activity. OrderHQ has adopted a policy of terminating, in appropriate circumstances, Operators who are repeat infringers.

1.9 Third-Party Services and Payment Processing. The OrderHQ Platform may interoperate with third-party services, software, payment processors, or other products selected by Operator or made available through the OrderHQ Platform (“Third-Party Services”). Operator’s use of Third-Party Services may be subject to separate terms between Operator and the applicable provider. OrderHQ is not responsible for Third-Party Services or for the availability, security, accuracy, performance, or acts or omissions of any third-party provider. To the extent payment functionality is made available through the OrderHQ Platform, payment card processing may be performed by a third-party payment processor. OrderHQ does not undertake to provide banking or payment-processing services and is not a party to transactions between Operator and its End Customers. Operator remains responsible for amounts charged to End Customers, refunds, disputes, chargebacks, taxes, and other obligations arising from those transactions.

1.10 Electronic Communications Features. Unless expressly enabled by OrderHQ and made subject to any applicable additional or supplemental terms, the OrderHQ Platform does not include authorization for Operator to use OrderHQ to send marketing text messages, multimedia messages, automated telephone communications, or similar communications to End Customers. Any future messaging, marketing, telecommunications, or similar functionality may be subject to additional terms, requirements, fees and usage restrictions established by OrderHQ.

2. Ownership

2.1 OrderHQ Technology. Operator acknowledges and agrees that as between OrderHQ and Operator, all right, title, and interest in and to the OrderHQ Platform (including any software, products, processes, algorithms, models, user interfaces, workflows, know-how, techniques, data, information, text, images, designs, compilations, tangible or intangible technical material or information) and other content made available through the OrderHQ Platform, other than Operator Data (as defined below), any related documentation, and all improvements and derivatives of the foregoing (including all trade secrets and other intellectual property and proprietary rights embodied therein or associated therewith) (collectively, “OrderHQ Technology”) are and shall remain owned by OrderHQ or its licensors or other providers, and this Agreement in no way conveys any right, title, or interest in the OrderHQ Technology other than a limited right to use the OrderHQ Platform in accordance with the terms and conditions herein. No right or license is granted hereunder to Operator under any trademarks, service marks, trade names, or logos. Operator shall not remove any proprietary notices or legends in the OrderHQ Platform, any output thereof, or related documentation.

2.2 Feedback. Operator, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the OrderHQ Technology to OrderHQ (“Feedback”). Operator agrees that OrderHQ may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Operator shall not be identified in connection with any such Feedback without Operator’s written consent in its sole discretion.

2.3 Operator Data. OrderHQ acknowledges and agrees that as between OrderHQ and Operator, Operator shall retain all of its right, title, and interest, if any, in and to the Operator Data, and this Agreement in no way conveys to OrderHQ any additional rights in the Operator Data other than the rights to use the Operator Data as provided herein. Operator hereby grants to OrderHQ and its service providers a worldwide, non-exclusive, royalty-free right to host, copy, reproduce, manipulate, display, transmit, distribute, process and otherwise use Operator Data to provide, operate, maintain, secure and support the OrderHQ Platform, develop and improve the OrderHQ Platform and other OrderHQ products and services, prevent fraud, misuse, security incidents and technical problems, comply with applicable law, and perform OrderHQ’s obligations and exercise its rights under this Agreement. For the avoidance of doubt, any improvements or modifications to the OrderHQ Platform or other OrderHQ products or services created by OrderHQ in connection with the use of Operator Data shall be deemed OrderHQ Technology. The content, legality, accuracy and quality of Operator Data shall be Operator’s sole responsibility. OrderHQ may collect information regarding the operation, performance, configuration and use of the OrderHQ Platform, including features used, workflows, transactions, activity and interactions with the OrderHQ Platform (“Usage Data”). OrderHQ may also create aggregated, statistical or de-identified information derived from Operator Data or Usage Data that does not reasonably identify Operator or any individual (“De-Identified Data”). OrderHQ may use, disclose, commercialize, publish, license and otherwise exploit Usage Data and De-Identified Data for any lawful business purpose, including analytics, benchmarking, research, product development, artificial intelligence and machine-learning development, industry insights, and development and improvement of OrderHQ’s current and future products and services. OrderHQ does and shall retain all right, title and interest in and to Usage Data and De-Identified Data, and all intellectual property rights therein. As used herein, “Operator Data” means any data, information, or content that Operator, a Permitted User, or an End Customer inputs into, submits to, or transmits through the OrderHQ Platform on behalf of Operator, including Operator Content and information relating to End Customers, orders and transactions, excluding any OrderHQ Technology therein.

3. Fees and Payment

3.1 Fees. Operator shall pay all fees for the OrderHQ Platform and any ancillary services as displayed through OrderHQ’s online signup or checkout process or as set forth in an Order Form. Unless otherwise set forth in an Order Form, subscription fees are billed monthly in advance and automatically charged to Operator’s payment method on file. OrderHQ may reasonably increase the fees for the OrderHQ Platform and/or ancillary services each year of the Subscription Term except as otherwise set forth in an Order Form. All non-public pricing terms in a negotiated Order Form are confidential, and Operator shall not disclose such terms to any third party without OrderHQ’s prior written consent.

3.2 Taxes. All amounts due under any Order Form are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind. Operator is responsible for taxes, duties and charges arising out of Operator’s use of the OrderHQ Platform, which may be invoiced by OrderHQ from time-to-time. Operator agrees to gross-up payments due to OrderHQ for any tax related withholding or deduction required by applicable laws, such that OrderHQ is paid the net amount contemplated under the applicable Order Form.

3.3 Payment Method. All payments hereunder shall be made without set off, withholding, or deduction of any kind. Operator shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law. Operator shall reimburse OrderHQ for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Operator. Operator acknowledges that OrderHQ may use one or more third-party payment processors. By making any payment through a third-party payment processor, Operator agrees to any applicable terms of such payment processor and authorizes OrderHQ and the payment processor to share information and payment instructions to the minimum extent required to complete Operator’s payment transactions.

3.4 Automatic Payment Authorization. Operator authorizes OrderHQ and its payment processors to automatically charge, debit, or otherwise process payment using any payment method Operator provides or has on file with OrderHQ, including credit card, debit card, ACH, bank transfer, or other electronic payment method, for all fees, charges, taxes, and other amounts due under this Agreement. Operator represents that it is authorized to use each payment method provided and agrees to keep its payment information current and valid. OrderHQ may process such payments on or after the applicable invoice date or other payment due date without further notice, unless required by applicable law. Any failure or rejection of payment will not relieve Operator of its payment obligations, and Operator will be responsible for any resulting fees, costs, or charges. If a payment attempt fails, OrderHQ may notify Operator and reattempt the charge using the payment method on file.

4. Term; Termination

4.1 Subscription Term. The term of this Agreement shall commence on the Effective Date and continue for as long as an Order Form remains in effect. The initial subscription term for the OrderHQ Platform shall be set forth in an applicable Order Form. Unless otherwise set forth in an Order Form, such Order Form shall automatically renew an additional period of the same duration as the expiring subscription term unless Operator or OrderHQ notifies the other Party in writing at least 30 days prior to the end of the then-current subscription term of its desire not to renew. The initial subscription term and any renewal term are collectively referred to as the “Subscription Term”.

4.2 Termination for Breach. Either Party may terminate this Agreement (and any or all applicable Order Forms) if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days of receipt of the breach notice.

4.3 Termination for Insolvency. Either Party may terminate this Agreement (and all Order Forms) immediately if the other Party becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

4.4 Other Terminations. OrderHQ may terminate this Agreement, or suspend or terminate Operator’s or its Permitted Users’ access to the OrderHQ Platform under any or all Order Forms, at any time in its sole discretion, with or without notice, if (a) Operator has any amount that remains unpaid for thirty (30) days after its due date; or (b) OrderHQ has a good faith belief that Operator’s or any of its Permitted Users’ access or use of the OrderHQ Platform violates this Agreement or any law or regulation, threatens the security, integrity or availability of the OrderHQ Platform, creates material risk to OrderHQ or any third party, or is disrupting other operators’ access to or use of the OrderHQ Platform. If Operator’s access is suspended for nonpayment and the account remains unpaid for an additional sixty (60) days, OrderHQ may terminate this Agreement and delete Operator Data in accordance with Section 8.3. During a suspension for nonpayment, Operator may continue to use available Operator Data export functionality.

4.5 Effect of Termination. Upon any termination or expiration of this Agreement: (a) all rights granted to Operator hereunder shall terminate and OrderHQ shall no longer provide access to the OrderHQ Platform to Operator, and (b) Operator shall cease and cause its Permitted Users to cease using the OrderHQ Platform. Any obligations (including payment obligations) that have accrued prior to termination or expiration of this Agreement shall survive such termination or expiration. Operator is responsible for exporting any Operator Data it wishes to retain before access terminates. OrderHQ may delete Operator Data following termination or expiration in accordance with Section 8.3. Sections 2, 3, 4.5, 5.3, 6, 7, 8, 9, and 10 will survive any termination or expiration of this Agreement to the extent applicable.

5. Warranties and Disclaimer

5.1 Mutual. Each Party represents and warrants that: (a) it has the requisite power and authority to enter into and carry out the terms of this Agreement without the consent of any third party; (b) its performance under this Agreement will not conflict with any other obligation it may have to any third party; and (c) as of the Effective Date, there are no proceedings pending or, to the knowledge of a Party, threatened or reasonably anticipated that challenges or may have a material adverse effect on this Agreement.

5.2 Limited Warranties. OrderHQ warrants that it will provide the OrderHQ Platform in a professional and workmanlike manner. In the event OrderHQ breaches this Section 5.2, Operator’s sole remedy for such breach shall be that OrderHQ will use commercially reasonable efforts to remedy the applicable error, or if OrderHQ is unable to remedy the error in a timely manner, OrderHQ may terminate the applicable Order Form and refund to Operator any prepaid fees allocable to the terminated portion of the applicable Subscription Term. The foregoing warranty does not apply to Beta Features (as defined below).

5.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.2, TO THE FULLEST EXTENT PERMITTED BY LAW, ORDERHQ TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER ORDERHQ NOR ANY OF ITS SUPPLIERS MAKES ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LOSS OF DATA, TITLE, NON-INFRINGEMENT, ACCURACY OR RESULTS. ORDERHQ SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, THIRD-PARTY SERVICES, ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ORDERHQ. ORDERHQ DOES NOT WARRANT THAT THE ORDERHQ PLATFORM WILL OPERATE ERROR FREE OR UNINTERRUPTED OR THAT ANY AUTOMATED, AI-ASSISTED, IMPORTED OR GENERATED CONTENT WILL BE ACCURATE OR COMPLETE. OPERATOR ACKNOWLEDGES THAT THE ORDERHQ PLATFORM IS A SOFTWARE TOOL AND DOES NOT REPLACE OPERATOR’S BUSINESS JUDGMENT, LEGAL COMPLIANCE OBLIGATIONS, FOOD-SERVICE RESPONSIBILITIES, OR REVIEW OF INFORMATION BEFORE IT IS USED OR PROVIDED TO END CUSTOMERS.

6. Limitation of Liability

6.1 Disclaimer of Indirect Damages. EXCEPT AS SET FORTH IN SECTION 6.3, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, PROFITS, SAVINGS, GOODWILL, BUSINESS OPPORTUNITY OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE ORDERHQ TECHNOLOGY BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 Damages Cap. EXCEPT AS SET FORTH IN SECTION 6.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY OPERATOR TO ORDERHQ FOR THE ORDERHQ PLATFORM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ORDERHQ SHALL HAVE NO LIABILITY TO ANY THIRD PARTY UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY PERMITTED USER OR END CUSTOMER.

6.3 Exclusions. NOTWITHSTANDING SECTION 6.1 OR SECTION 6.2, NOTHING IN THIS AGREEMENT SHALL LIMIT, IN ANY MANNER, THE LIABILITY OR DAMAGES ARISING FROM OR RELATED TO (A) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, (B) OPERATOR’S UNAUTHORIZED DISCLOSURE OR MISUSE OF THE ORDERHQ TECHNOLOGY, (C) OPERATOR’S PAYMENT OBLIGATIONS, OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 6 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

7. Indemnification

7.1 OrderHQ Indemnification. OrderHQ shall defend, indemnify, and hold harmless Operator and its directors, officers, employees, and agents from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that Operator’s or its Permitted Users’ authorized use of the OrderHQ Platform infringes or misappropriates a third party’s intellectual property rights. If a court of competent jurisdiction or OrderHQ reasonably determines that any such claim prevails or is likely to prevail, OrderHQ may, at OrderHQ’s sole discretion and expense: (a) procure the right for Operator to continue to use the OrderHQ Platform; (b) replace or modify the OrderHQ Platform so that it no longer infringes or misappropriates, as applicable, such intellectual property right; or (c) terminate this Agreement and refund any prepaid fees for the period subsequent to such termination, on a pro-rated basis.

7.2 Operator Indemnification. Operator shall defend, indemnify, and hold harmless OrderHQ and its members, shareholders, directors, officers, employees, contractors, affiliates and agents from and against any and all Claims arising out of or relating to (a) Operator’s or any Permitted User’s use of the OrderHQ Platform in violation of this Agreement or applicable law, (b) Operator’s actual or alleged breach of Sections 1.5, 1.6, or 1.7 of this Agreement, (c) the Customer Portal or Operator’s interactions, transactions or communications with End Customers, (d) Operator Content or Operator Data, including any allegation that such content or data infringes, misappropriates or violates a third party’s intellectual property, privacy, publicity or other rights, (e) Operator’s failure to provide legally required notices, disclosures, terms or policies or obtain legally required permissions or consents, or (f) Operator’s misuse of personal information or other data obtained through the OrderHQ Platform.

7.3 Procedures. The obligations of each indemnifying Party are conditioned upon receiving from the Party seeking indemnification: (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying Party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such Claim, provided that no settlement may impose an admission of wrongdoing, monetary obligation or continuing obligation on the indemnified Party without its prior written consent; and (c) reasonable cooperation as necessary for the indemnifying Party to evaluate, defend, and settle such Claim.

7.4 Exclusions. OrderHQ’s obligations in Section 7.1 above shall not apply to any Claim to the extent arising out of or relating to: (a) misuse of the OrderHQ Platform, (b) any modification or alteration of the OrderHQ Platform not created or approved in writing by OrderHQ, (c) any combination of the OrderHQ Platform with any computer, software, service, or anything else not provided by OrderHQ, but only to the extent such Claim would not have arisen but for such combination, (d) OrderHQ’s compliance with specifications or other requirements of Operator, or (e) any third-party data or information, Operator Content or Operator Data. If the OrderHQ Platform is or may be subject to a Claim described in Section 7.1 above, OrderHQ may, at its cost and sole discretion: (i) obtain the right for Operator to continue using the OrderHQ Platform as contemplated herein, (ii) replace or modify the OrderHQ Platform so that it becomes non-infringing without substantially compromising its principal functions, or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement (and the applicable Order Form) and return to Operator any prepaid fees for the OrderHQ Platform associated with the then-terminated Subscription Term. OrderHQ’s obligations in this Section 7 are OrderHQ’s sole obligations, and Operator’s sole remedies, in the event of any infringement of intellectual property rights by or related to the OrderHQ Platform.

8. Confidentiality and Protection of Operator Data

8.1 Confidentiality. Each Party (as “Receiving Party”) hereto acknowledges that the Confidential Information of the disclosing party (“Disclosing Party”) constitutes valuable confidential and proprietary information. Each Party will (a) hold the Confidential Information of the other Party in confidence, (b) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations or exercising its rights pursuant to the terms of this Agreement and except if compelled to do so under applicable law and, where legally permitted, has delivered written notice to the Disclosing Party and taken reasonable steps to avoid or limit disclosure, and (c) use at least the same degree of care with respect to the other Party’s Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each Party will disclose the other Party’s Confidential Information, to the extent such disclosure is permitted under the terms of this Agreement, to its employees, contractors and agents on a “need to know” basis; provided in each case that such persons are bound by confidentiality obligations similar to those in this Agreement.

8.2 “Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a Party to the other Party, whether tangible or intangible, including, but not limited to, the terms of this Agreement and information relating to the OrderHQ Technology, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions, discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software, databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. OrderHQ’s Confidential Information includes, but is not limited to, the features, functionality and content of the OrderHQ Platform and any planned modifications or updates thereto, fees and pricing information. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.

8.3 Return/Deletion of Operator Data. OrderHQ may make Operator Data available to Operator for export through functionality made available within the OrderHQ Platform, which may include access through an application programming interface (API), download, or other method at OrderHQ’s reasonable discretion. Upon Operator’s request or following expiration or termination of the Agreement, OrderHQ may delete Operator Data from its active systems within sixty (60) business days, unless retention is required by applicable law or expressly permitted under this Agreement. Without limiting the foregoing, if Operator’s account is suspended for nonpayment and remains unpaid for sixty (60) days following suspension, OrderHQ may delete Operator Data from its active systems. Operator acknowledges that residual copies of Operator Data may remain in OrderHQ’s encrypted backup systems after deletion from active systems until overwritten or deleted in the ordinary course, which may take up to twelve (12) months. OrderHQ will not use such residual backup copies except as reasonably necessary for backup restoration, disaster recovery, security, or legal compliance. Operator acknowledges and agrees that (a) OrderHQ is not obligated to preserve or make available any backup copy of Operator Data following deletion from its active systems, (b) OrderHQ is not a data storage provider or archival service, and (c) the OrderHQ Platform is not intended to serve as Operator’s sole backup solution or long-term repository for Operator Data.

9. Beta, Pilot, Trial, and Pre-Release Features

9.1 Beta Features. From time to time, OrderHQ may provide Operator access to features, functionality, services, integrations, or versions of the OrderHQ Platform identified as “beta,” “pilot,” “trial,” “preview,” “early access,” “pre-release,” or similar designation (collectively, “Beta Features”). Operator acknowledges that Beta Features are made available for testing and evaluation and may be incomplete, experimental, or subject to material change.

9.2 Use at Operator’s Risk. Beta Features are provided “AS IS” and “AS AVAILABLE,” without any warranty, commitment, service level, support obligation, or guarantee of continued availability. Beta Features may contain errors, defects, interruptions, inaccuracies, or vulnerabilities and may result in unexpected behavior, downtime, or loss or corruption of data. Operator assumes all risks associated with use of Beta Features and will maintain appropriate independent records, backups, and business-continuity procedures.

9.3 Changes and Discontinuation. OrderHQ may modify, restrict, suspend, or discontinue any Beta Feature at any time, with or without notice, and has no obligation to release any Beta Feature generally or to incorporate any Beta Feature into the commercial version of the OrderHQ Platform.

9.4 Testing Data and Feedback. Operator authorizes OrderHQ to collect and use information regarding Operator’s use and performance of Beta Features to test, analyze, troubleshoot, develop, and improve the OrderHQ Platform. Operator will reasonably cooperate with OrderHQ in identifying issues and, if requested, providing Feedback regarding Beta Features. All Feedback will be subject to Section 2.2.

9.5 Beta Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ORDERHQ WILL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO OPERATOR’S USE OF A BETA FEATURE. IF SUCH LIABILITY CANNOT BE FULLY EXCLUDED, ORDERHQ’S AGGREGATE LIABILITY ARISING FROM BETA FEATURES WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT, IF ANY, PAID SPECIFICALLY FOR THE APPLICABLE BETA FEATURE DURING THE THREE (3) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM.

10. General

10.1 Modifications/Supplemental Terms; Other Offerings. The OrderHQ Platform may be modified and evolve over time or new offerings may be added by OrderHQ. OrderHQ will use commercially reasonable efforts to identify material changes through documentation on OrderHQ’s website, the OrderHQ Platform, email, or through other electronic means. OrderHQ may offer certain changes, improvements, or new features, functionality, or offerings that may be subject to additional fees and expenses and supplemental terms and conditions, which OrderHQ may post on its website or the OrderHQ Platform or otherwise make available to Operator and which will be incorporated by reference into this Agreement. If Operator objects to such supplemental terms and conditions, Operator will have no right to access or use the new improvements, features, or functions.

10.2 Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Operator may not assign this Agreement without OrderHQ’s advance written consent. OrderHQ may assign this Agreement without Operator’s consent in connection with a merger, reorganization, acquisition, financing, corporate restructuring, sale of all or substantially all of OrderHQ’s assets or business, or to an affiliate, provided that the assignee agrees to be bound by the terms and conditions herein.

10.3 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

10.4 Governing Law; Jurisdiction and Venue. This Agreement, the interpretation hereof and all disputes arising out of or relating to this Agreement, shall be governed by the laws of the State of New York, without regard to any conflicts of law principles. The Parties hereby consent to the exclusive jurisdiction and venue in the federal or state courts located in the County of New York, State of New York. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.

10.5 Injunctive Relief. Each Party acknowledges that its violation of any intellectual property rights or confidentiality obligations herein (including any limitations or restrictions on use of the OrderHQ Technology) will cause substantial harm to the other Party that cannot be remedied by monetary damages. Accordingly, the harmed Party shall be entitled to seek injunctive relief or other equitable relief, for any such breach, without a requirement to post bond, in any court of competent jurisdiction.

10.6 Notice. OrderHQ may give notice by electronic mail to Operator’s e-mail address on record in Operator’s account information, through the OrderHQ Platform, or by written communication sent to Operator’s address on record in Operator’s account information or applicable Order Form. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting or 12 hours after sending by email. Operator shall give notice to OrderHQ using the contact information designated by OrderHQ on its website, in the OrderHQ Platform, or in the applicable Order Form, and such notice shall be deemed given when received by OrderHQ.

10.7 Amendments; Waivers. OrderHQ may amend or modify the terms of this Agreement from time to time. OrderHQ may provide notice of material changes through the OrderHQ Platform, by email, by posting an updated version on its website, or through another reasonable electronic method. Unless OrderHQ specifies otherwise, updated terms will apply prospectively as of the stated effective date, and Operator’s continued access or use of the OrderHQ Platform after the terms of this Agreement are revised constitutes Operator’s express consent to the modified Agreement. Any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Notwithstanding the foregoing, no other amendment, change, or extension to this Agreement is valid or binding unless approved in writing by OrderHQ. A failure of either Party to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.

10.8 Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

10.9 Force Majeure. Except for Operator’s payment obligations hereunder, neither Party is, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing its obligations herein, when and to the extent such failure or delay is caused by or results from acts beyond a Party’s reasonable control, including: strikes, lock-outs, or other labor disputes; shortages of or inability to obtain labor, energy, or supplies, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of OrderHQ’s local network; any pandemic; any natural disaster, including earthquake, extraordinary storm or weather conditions; nuclear, chemical or biological contamination; and any explosion, fire and flooding; or other acts of God (each a “Force Majeure Event”). The Parties will use reasonable efforts to mitigate the effects of such Force Majeure Event.

10.10 Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including any End Customer.

10.11 Use of Name. Except as otherwise agreed, OrderHQ is permitted to (a) refer to Operator as a customer and (b) use Operator’s name and logo(s) in its marketing materials. Operator is permitted to use OrderHQ’s name and logo in any press releases announcing this Agreement or the relationship between the Parties. Each Party shall comply with the trademark usage guidelines provided by the other Party (if any).

10.12 Entire Agreement. This Agreement and all applicable Order Forms (including any applicable supplemental terms) make up the complete and exclusive understanding of the Parties and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement.

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