Waters Edge Agreement
THIS AGREEMENT is entered into on April 14, 2021 by and between Pilates Web Co, (hereinafter referred to as “Spark Factory”), having its offices located at 4555 Corporation Lane Suite 275, Virginia Beach VA 23451 and the client, (hereinafter referred to as “Client”)
Spark Factory provides an Online Mobile Ordering System to restaurants along with Restaurant Loyalty Programs.
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 availability 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 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 30 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, including legal and collection fees.
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.
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 twelve (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,Independent Contractor - It is the intention of the parties that Contractor be an independent contractor and not an employee, agent, joint venturer or partner of Spark Factory or any affiliate of Spark Factory. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Spark Factory and either Contractor or any employee or agent of Contractor. Contractor shall be responsible for managing and directing the performance of all Services by Contractor and by Contractor's employees and agents, if any, under any Statement of Work, and for all worker's compensation insurance and other insurance, tax withholdings and benefits and reporting responsibilities as they pertain to Contractor or Contractor's employees or agents from time to time.
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.
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 Virginia. All disputes under this Agreement shall be resolved by arbitration in the State of Virginia, including the federal courts therein and the Parties all consent to the jurisdiction of Virginia Beach, Virginia, 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 Virginia Beach, Virginia.
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.
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 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.
On behalf of Waters Edge Gastropub:
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Signed by Scott Aadal Signed On: March 4, 2021
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Document Name: Waters Edge Agreement
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