Online Ordering Agreement
THIS AGREEMENT is entered into on February 4, 2021 by and between Pilates Web Co, (hereinafter referred to as “Spark Factory”), having its principal offices located at 4555 Corporation Lane, Suite 275, Virginia Beach, VA 23462 and the client, (hereinafter referred to as “Client”)
Spark Factory provides online mobile ordering application to restaurants. The client is engaging Spark Factory as an independent contractor
Consent for electronic signature - The parties herein agree to electronic signatures to execute this agreement online with either written or drawn signatures.
Term - This Agreement shall be effective as of the time the Client signs up for services for an initial term of 3 months and will automatically renew for 12 months.
Services - Spark Factory is in the business of providing a mobile food ordering application. Whereas Spark Factory imports the Client's menu and provides a mobile menu that integrates with Spark Factory's mobile app to accept or reject orders and provide an estimated time for food availablity for pickup or delivery. Spark Factory will integrate the mobile menu for online ordering onto the Client's website, Facebook and Google (where applicable, and as access is provided). If the Client does not have a website, Spark Factory will provide a basic website to host Client's menu for the term of this Agreement.
Billing - The Client pays an initial setup fee of $399 plus a per order fee of $2.45, which is assessed and charged weekly (Monday - Sunday) to the credit card on file. If an amount remains delinquent 60 days after its due date, an additional 5% penalty will be added for each month of delinquency. In case that collection proves necessary, the Client agrees to pay all fees incurred by that process.
Customer Responsibilities – For the purposes of providing these services, Customer agrees:
To provide Spark Factory free and clear access to its websites, social media, and other locations for the purposes of providing services, and making changes as required to support Spark Restaurants Food Ordering System. To authorize Spark Factory use of all Customer’s logos, trademarks, website images, etc., for use of such services and any other uses as deemed necessary by Spark Factory for the services.
Reporting – Reports will be made available via email as the weekly order processing fees are collected.
Cancellation - The Client may cancel this agreement after the intial term of three (3) months with 60 days notice of cancellation at email@example.com. This agreement will automatically renew for tweleve (12) months thereafter. Full payment of any outstanding invoices is required. Spark Factory reserves the right to cancel this agreement and terminate services at any time, with any outstanding payments.
Copyrights and Trademarks - The client represents to Spark Factory and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Spark Factory for inclusion in menus, web pages and printed materials are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements. Client will hold harmless, protect, and defend Spark Factory and its subcontractors from any claim or suit arising from the use of such elements furnished by the client. Spark Factory represents and warrants that they will use royalty-free images and the Client's images for all marketing,
Indemnification – Customer shall indemnify and hold harmless Spark Factory (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Spark Factory as a result of any claim, judgment, or adjudication against Spark Factory related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Spark Factory (the “Client Content”), or (b) a claim that Spark Factory ’s use of the Client Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Spark Factory must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Clinet in the defense and all related negotiations.
All Other Warranties – Spark Factory does not warrant that services will meet the Client’s expectations or requirements. The entire risk as to the quality and performance is with the Client. Except as otherwise specified in this agreement, Spark Factory provides its services “as is” and without warranty of any kind. The parties agree that (a) the limited warranties set forth in this section are the sole and exclusive warranties provided by each party, and (b) each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this agreement, performance or inability to perform under this agreement, the content, and each party’s computing and distribution system. If any provision of this agreement shall be unlawful, void, or for any reason is unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
Assignability – Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Spark Factory. Spark Factory reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
Limited liability – in no event shall Spark Factory be liable to Client for any indirect, special, exemplary or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this agreement, loss of data, or any performance under this agreement, even if such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy provided herein. There shall be no refunds. Spark Factory makes no warranty of any kind, whether express or implied, with regard to any third-party products, third-party content or any software, equipment, or hardware obtained from third parties.
Confidentiality - The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Spark Factory and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Florida. All disputes under this Agreement shall be resolved by arbitration in the courts of the State of Florida, including the federal courts therein and the Parties all consent to the jurisdiction of Hollywood, Florida, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. For any action involving matters of this Agreement, venue shall lie in Hollywood, Florida.
Counterparts - This Agreement may be executed in one or more counterparts, signature pages, each of which shall be deemed to be an original and together which shall constitute one and the same instrument. Additional terms are available here
I understand that this agreement requires written notice to cancel .
AMOUNT: Weekly order fees will be charged to the credit card on file. It is the Client's responsibility to keep an active credit card on file for the previous week's order fees. If the card is declined, and after 2 attempts by Spark Factory to update records, services will be suspended until fees are paid and a valid credit card is entered for future weekly fees.
I (We), authorize my (our) credit card/ACH to be charged weekly/monthly/quarterly/yearly for fees relating to Spark Factory's services. By accepting this authorization I agree to pay all service fees without offset or refusal. All invoices are subject to late fees, interest, and legal costs. Additionally I (we) agree to Spark Factory's terms and conditions. Spark Factory billling occurs weekly, monthly, quarterly and/or yearly along with any 'other' services (indicated on each invoice). Payment is due immediately or before the due date. Any accounts that are deliquent more than three () business days may be suspended without notification.
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Document Name: Online Ordering Agreement
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