Catering Rewards
Terms of Service
These Terms of Service (“Agreement” or “Terms”) govern access to and use of the Catering Rewards platform, software, and related services (the “Catering Rewards Technology” or “Services”) provided by HAR LLC dba Catering Rewards (“Catering Rewards”). These Terms apply to all restaurant operators and other businesses that access or use the Services (“Customer”). By creating an account, clicking “I Agree,” or otherwise accessing or using the Services, Customer agrees to be bound by these Terms. If Customer is accepting these Terms on behalf of a business entity, Customer represents that it has authority to bind that entity.
1. Acceptance of Terms
Customer’s access to and use of the Services constitutes acceptance of these Terms.
2. Definitions
- “Services” means the Catering Rewards platform, software, dashboards, administrative tools, APIs, integrations, and related hosted services provided by Catering Rewards.
- “Within the Services” means within Customer’s authenticated account experience, including plan selection screens, billing screens, program settings, administrative dashboards, and notices or policies presented to Customer through the Services.
- “Customer” means a restaurant operator or other business entity that accesses or uses the Services.
- “Catering Customer” means an individual or business entity that places or has placed a catering order with Customer and is eligible to earn, receive, or redeem rewards through the Services.
- “Customer Data” means data provided by or on behalf of Customer in connection with the Services.
- “Plan Details” means the pricing, subscription term (monthly, quarterly, or annual), billing frequency, usage limits, fees, and features applicable to Customer’s selected plan, as displayed within the Services.
- “Free Trial” means a limited trial period during which Customer may access the Services without payment, subject to time and/or usage limits.
3. Overview
3.1. These Terms apply to Customer’s access and use of the Catering Rewards Technology and any corresponding professional services provided by Catering Rewards in connection therewith (the “Professional Services”). Commercial terms (including subscription term, location count, Fees, and billing frequency) are determined by the plan selected within the Services (“Plan Details”). If there is any conflict between Plan Details presented within the Services and these Terms, these Terms control unless expressly stated otherwise in the Services.
4. Catering Rewards Technology Terms
4.1. Grant of Rights
Subject to the terms of this Agreement, Catering Rewards grants to Customer and participating Customer a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right during Customer’s active subscription term (including any Free Trial period, if applicable) to (i) allow users designated by Customer (“Authorized Users”) to access and use the Catering Rewards Technology for the sole and exclusive purposes outlined herein, and (ii) access and use the outputs and results of Customer’s use of the Catering Rewards Technology in accordance with this Agreement (“Outputs”). Subject to the restrictions set forth in this Agreement, Customer may display and distribute derivative works of the Outputs (e.g., within a graph), only so long as Catering Rewards is cited as a source on every page where the Outputs are displayed.
4.2. Customer Data
“Catering Customer” means an individual or business entity that places or has placed a catering order with Customer and is eligible to earn, receive, or redeem rewards through the Services.
Catering Rewards may use anonymized, aggregated, and/or de-identified data derived from Customer Data to operate, support, and improve its products and services, including enabling Catering Customers to learn about and access reward program offerings, provided that no individual Catering Customer or Customer is identified without applicable consent.
As between Catering Rewards and Customer, Customer owns all right, title and interest in and to all data provided by or on behalf of Customer in connection with use of the Catering Rewards Technology (“Customer Data”). Customer Data includes data relating to catering orders, transactions, menus, locations, operational details, and end customers (“Catering Customers”). Customer Data excludes Aggregated Statistics and anonymized, aggregated, or de-identified data.
Customer shall not transmit unlawful or unauthorized Customer Data. For clarity, Customer may transmit Catering Customer contact and order information (which may include personally identifiable information) as reasonably necessary for operation of the rewards program, provided Customer has obtained required consents and complies with applicable privacy laws.
Although Catering Rewards has no obligation to screen, edit or monitor Customer Data, Catering Rewards reserves the right, and has absolute discretion, to remove, screen or edit Customer Data posted and/or stored in connection with the Catering Rewards Technology for any breach of this Agreement, and Customer is solely responsible for all such activity. Customer acknowledge and agree that Catering Rewards has no control over, and shall have no liability for, any damages resulting from the use (including without limitation, republication) or misuse by any third party of information (including Customer Data) made public through or in connection with the Catering Rewards Technology. If Customer choose to make any Customer Data publicly available, they do so at their own risk and Catering Rewards shall have no liability therefor.
4.3. Usage Restrictions
Customer shall not, directly or indirectly (i) make the Catering Rewards Technology or Outputs available to any third party or use the Catering Rewards Technology for the benefit of anyone other than the Customer and its Authorized Users; (ii) sell, resell, license, sublicense, distribute, make available, rent or lease Catering Rewards Technology or Outputs to any third party, in whole or in part, in any form, whether modified or unmodified; (iii) use Catering Rewards Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iv) use Catering Rewards Technology to store or transmit malicious code; (v) permit direct or indirect access to or use of any Catering Rewards Technology in a way that circumvents a contractual usage limit, or use any Catering Rewards Technology to access or use any Catering Rewards intellectual property except as permitted under this Agreement; (vi) modify, copy, or create derivative works based on the Catering Rewards Technology or Outputs or any part, feature, or function thereof; (vii) disassemble, reverse engineer, or decompile the Catering Rewards Technology or Outputs or access it to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, or functions of the Catering Rewards Technology or Outputs, or (c) copy any ideas, features, or functions of the Catering Rewards Technology or Outputs; (viii) remove any proprietary notices from the Catering Rewards Technology or Outputs; or (ix) use the Catering Rewards Technology or Outputs in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Customer shall not use open-source code for development of or in any authorized derivative work of the Catering Rewards Technology in any manner that would subject the Catering Rewards Technology to open-source distribution.
Catering Rewards may suspend and/or terminate Customer’s access to any portion or all of the Catering Rewards Technology and/or Outputs if Catering Rewards reasonably determines that (1) there is a disruption, security risk, threat or attack on any of the Catering Rewards Technology, Outputs, or to any other customer or vendor of Catering Rewards; (2) a Customer is using the Catering Rewards Technology or Outputs for fraudulent or illegal activities; (3) a Customer fails to make payments of Fees when due and/or has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (4) Catering Rewards’ provision of the Catering Rewards Technology and/or Outputs to Customer is prohibited by applicable law; or (5) any vendor of Catering Rewards has suspended or terminated Catering Rewards’ access to or use of any third-party services or products required to enable Customer to access the Catering Rewards Technology or Outputs (any such suspension a “Service Suspension”). Catering Rewards will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
4.4. Customer Responsibilities
Customer shall (i) only access and use the Catering Rewards Technology and Outputs in accordance with the terms of this Agreement and all of Catering Rewards’ online documentation, user guidance, training, and other materials relating to such Catering Rewards Technology and Outputs; (ii) be responsible and liable for compliance with this Agreement by their users, employees, contractors, and agents; (iii) be responsible for the accuracy, quality and legality of all Customer Data, the means by which Customer acquired such Customer Data, Customer’s use of Customer Data with the Catering Rewards Technology and Outputs, and the interoperation of any third party applications with which Customer use the Catering Rewards Technology and Outputs; (iv) prevent unauthorized access to or use of the Catering Rewards Technology and Outputs, and notify Catering Rewards promptly of any such unauthorized access or use; (v) use the Catering Rewards Technology and Outputs only in accordance with this Agreement and applicable laws and government regulations; (vi) comply with terms of service of any third party applications with which Customer use the Catering Rewards Technology and/or Outputs; and (vii) obtain access and authorization for all data processing performed by Catering Rewards for Customer, including the right to perform any third party integrations.
Customer are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Catering Rewards Technology and Outputs, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers.
To ensure compliance with the terms of this Agreement, Catering Rewards or its designated representative shall have the right to review and audit Customer’s use of the Catering Rewards Technology and Outputs, such review and audit to be conducted remotely and in such a manner as not to interfere unreasonably with Customer’s normal business activities.
Customer understand and agree that their Authorized Users are subject to the Catering Rewards website Terms of Use available at https://cateringrewards.com/terms-of-use/ and website Privacy Policy available at https://cateringrewards.com/privacy-policy/, and that such Terms of Use and Privacy Policy are hereby incorporated by reference and made part of this Agreement. Catering Rewards may update the Terms of Use and Privacy Policy at any time, and Customer agree that their Authorized Users will be subject to such updates upon written notice. In the event of any conflict between the Terms of Use and/or Privacy Policy and the terms of this Agreement, the terms of this Agreement shall control.
4.5. Intellectual Property and Confidentiality
Customer acknowledge and agree that the Catering Rewards Technology, Outputs, all data and intellectual property comprising and powering the Catering Rewards Technology and Outputs, and any copies, updates, and/or derivative works of the Catering Rewards Technology, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of Catering Rewards. The Catering Rewards Technology and Outputs shall at all times remain Catering Rewards’ sole and exclusive property, and Catering Rewards retains the right to change or refine the Catering Rewards Technology at its discretion in service of Customer or to further its business objectives.
Catering Rewards may, in its sole discretion, issue updates, bug fixes or other changes to the Catering Rewards Technology (each an “Update”) to the extent such Update does not materially impair Customer’s use of the Catering Rewards Technology. Catering Rewards will use commercially reasonable efforts to notify Customer of an Update that may materially impair their use of the Catering Rewards Technology.
Customer recognize that Catering Rewards regards the Catering Rewards Technology, Outputs, and other Confidential Information as its proprietary information and as confidential trade secrets of great value. Customer agree not to provide or to otherwise make available in any form the Catering Rewards Technology or Outputs, or any portion thereof, or any Confidential Information (defined below) of Catering Rewards to any person other than as expressly permitted by this Agreement, without the prior written consent of Catering Rewards.
4.6. Aggregated Statistics and Application Monitoring
Notwithstanding anything to the contrary in this Agreement, Catering Rewards may monitor Customer’s and each Authorized User’s access and use of the Catering Rewards Technology and Outputs, and collect and compile meta-data, data and information related to access and use of the Catering Rewards Technology and Outputs that is and can be used by Catering Rewards for application monitoring, pricing, and Catering Rewards’ technology management purposes (“Application Monitoring Data”). The same data (including Customer Data) may be used in any format to compile statistical and performance information related to the provision, operation, and use of the Catering Rewards Technology and Outputs (collectively, “Aggregated Statistics”). Customer agree that Catering Rewards may (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any user, or Customer’s Confidential Information. Customer hereby grant to Catering Rewards a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer Data to the extent incorporated within the Aggregated Statistics. Customer acknowledge that, as between Customer and each user on the one hand, and Catering Rewards on the other hand, Catering Rewards owns all right, title, and interest, including all intellectual property rights therein, in and to the Catering Rewards Technology, Outputs, Aggregated Statistics, and Application Monitoring Data.
4.7. Feedback
If Customer choose to provide input and suggestions regarding the Catering Rewards Technology and/or Outputs (“Feedback”), then they hereby grant Catering Rewards an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use such Feedback in any manner and for any purpose, including to improve the Catering Rewards Technology and/or Outputs, or create other products and services.
4.8. Third-Party Software
Customer understand and agree that their use of any third-party software associated with the Catering Rewards Technology and Outputs (“Third Party Software”) will be governed by such third party’s license terms and conditions. Customer understand and agree that Catering Rewards is not responsible for Customer’s, Authorized Users’, and/or any third party’s obligations relating to any Third-Party Software, and Catering Rewards specifically disclaims any liability relating thereto. Catering Rewards will, to the extent permitted by its vendors, pass through any warranties and indemnifications provided by the supplier of the Third-Party Software.
5. Professional Services Terms
5.1. Professional Services
Catering Rewards may provide Professional Services, including, but not limited to: (i) integration services, which are systems integration and data engineering services performed by Catering Rewards to assist in the deployment and integration of Catering Rewards Technology and/or use of Outputs; and (ii) product usage support, which are services provided in response to requests for support by Customer’s users who contact Catering Rewards at hello@cateringrewards.com. Catering Rewards retains all right, title, and interest in and to any and all rights arising out of or related to the output of the Professional Services. Subject to the terms and conditions of this Agreement, Catering Rewards grants Customer a non-exclusive, personal, non-exclusive, non-transferable, non-sublicensable license to use, modify, reproduce, and prepare derivative works of the deliverables associated with such Professional Services specifically provided to Customer solely in connection with Customer’s internal use of the Catering Rewards Technology and Outputs. For the avoidance of doubt, such usage rights to deliverables do not extend to any third party.
5.2. Non-Solicit
Customer recognize that Catering Rewards’ employees and contractors are a valuable resource of Catering Rewards. Accordingly, Customer agree that they will not, for one (1) year following termination of this Agreement, either alone or in conjunction with any other party, directly or indirectly, (i) induce or encourage (or attempt to induce or encourage) any employee or contractor of Catering Rewards to leave the employ of, or terminate or alter his/her/their engagement with, Catering Rewards, whether for purposes of employing or contracting any such employee or contractor in a competing business or for any other reason; or (ii) interfere in any way with the relationship between Catering Rewards and any such employee or contractor.
6. Fees and Payment Terms (Self-Serve)
6.1. Free Trial Period
Customer may be eligible for a free trial as shown within the Services (“Free Trial”). Unless otherwise specified within the Services, the Free Trial ends upon the earlier of: (i) six (6) months from Customer’s signup, or (ii) rewarding orders totaling $3,000 in aggregate food subtotal, whichever occurs first. Catering Rewards may change Free Trial eligibility, duration, and usage limits from time to time on a prospective basis.
6.2. Subscription Fees; Plan Details
After the Free Trial ends, or upon Customer’s selection of a paid plan, Customer shall pay the recurring subscription fees for the Catering Rewards Technology in accordance with the Plan Details presented within the Services. Subscription fees may be stated per location and may vary based on the plan selected and other factors described in Plan Details.
6.3. Rewards Transaction Processing Fee; Wallet Option
Customer may elect to fund rewards through a prepaid wallet funded via ACH (the “Wallet”). Funds loaded to the Wallet are subject to a 1.5% processing fee. When rewards are issued, amounts are automatically debited from the Wallet balance. If Customer does not use the Wallet, a processing fee of 3.99% + $0.60 per rewards transaction applies.
6.4. Fees; Non-Refundability
Customer will pay the Fees as set forth in these Terms and the applicable Plan Details, including any minimums. Except as otherwise specified herein, (i) Fees are based on the rights granted hereunder, and not actual usage by Customer; (ii) payment obligations are non-cancelable once incurred; and (iii) Fees paid are non-refundable.
6.5. Payment Terms; Billing Start; Renewal
Billing for paid plans begins when Customer upgrades from a Free Trial to a paid plan (or otherwise selects a paid plan within the Services). Subscription renewals occur automatically based on the billing interval stated in Plan Details (e.g., monthly, quarterly, annual) unless Customer cancels prior to renewal as permitted within the Services.
6.6. Taxes
The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for all Taxes associated with their purchases hereunder. If Catering Rewards has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Catering Rewards will invoice Customer and Customer will pay that amount unless Customer provides Catering Rewards with a valid tax exemption certificate.
7. Commitment and Renewal Terms (Self-Serve)
Customer’s subscription term and renewal cycle are determined by the Plan Details for the plan selected within the Services. Unless otherwise specified within the Services, subscriptions renew automatically for successive periods matching the selected billing interval unless Customer cancels prior to renewal as permitted within the Services. Any early termination fee, if applicable to a specific plan, will be disclosed in the applicable Plan Details.
8. Confidentiality
8.1. Confidentiality
In connection with this Agreement, a Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) information which is commercially sensitive, confidential, proprietary, and/or trade secret to the Disclosing Party and which is identified as confidential at the time of disclosure or which is reasonably apparent to be confidential based on the type of information and the circumstances of disclosure (“Confidential Information”). For a period of five (5) years after termination of this Agreement (or in the case of a trade secret for as long as such trade secret remains protectable under applicable laws), the Receiving Party shall not disclose any such Confidential Information to any third party other than its employees, contractors, and agents, and only on an as-needed basis. The terms and conditions of this Agreement shall be considered Confidential Information of both Parties and shall not be disclosed without the other Party’s written consent; however, high level information used to provide references, recommendations and case studies shall not be considered Confidential Information of either Party. In no event shall Customer use Catering Rewards’ Confidential Information to reverse engineer or otherwise develop products and services functionally equivalent to any of Catering Rewards’ products or services.
8.2. Exceptions
Notwithstanding the foregoing, the Disclosing Party’s Confidential Information shall not include information which: (i) is in the public domain at the time of its disclosure hereunder or thereafter becomes part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was already known to the Receiving Party as of the time of its disclosure hereunder without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; (iv) is subsequently learned by the Receiving Party from a third party that is not under a confidentiality obligation to the Disclosing Party with respect to such disclosure; (v) is authorized for disclosure by the Disclosing Party.
8.3. Legally Required Disclosures
Notwithstanding anything else herein, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent that it is required pursuant to a duly authorized subpoena, court order or government authority, whereupon, as permitted by applicable law. The Receiving Party shall provide prompt written notice to the Disclosing Party, prior to such disclosure, so that the Disclosing Party may seek a protective order or other appropriate remedy, and, if such remedy is not obtained, the Receiving Party shall disclose only that portion of the Disclosing Party’s Confidential Information which is legally required to be disclosed and shall seek confidential treatment thereof.
8.4. Retention
The Receiving Party shall not retain any rights to any of the Disclosing Party’s Confidential Information and shall not use said Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. At the request of the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party that is then in its possession or control, provided that the Receiving Party may retain, but not use, archived versions of such Confidential Information for a period of up to five (5) years following termination of this Agreement, which remain subject in all respects to the obligations of confidentiality and non-use set forth in this Agreement.
9. Representations, Warranties and Warranty Exclusions
9.1. Catering Rewards Warranty
Catering Rewards warrants that the Catering Rewards Technology shall be provided in a professional and workmanlike manner.
9.2. Mutual Representations and Warranties
Each party represents and warrants to the other that: (i) it has the requisite power and authority to enter into this Agreement and perform its obligations herein; (ii) this Agreement is a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; and (iii) this Agreement does not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such party is a party.
9.3. Disclaimers
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE CATERING REWARDS TECHNOLOGY, OUTPUTS, AND PROFESSIONAL SERVICES ARE AVAILABLE “AS-IS” AND “AS-AVAILABLE.” CATERING REWARDS AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, CATERING REWARDS DOES NOT WARRANT THE ACCURACY OF THE CATERING REWARDS TECHNOLOGY OR OUTPUTS, OR THAT THE OPERATION OF THE CATERING REWARDS TECHNOLOGY OR OUTPUTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT CATERING REWARDS WILL CORRECT ALL DEFECTS. FURTHER, CATERING REWARDS AND CUSTOMER ACKNOWLEDGE AND AGREE THAT CATERING REWARDS DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC RETURNS ON INVESTMENT, BUSINESS OUTCOME OR RESULT FROM CUSTOMER’S USE OF THE CATERING REWARDS TECHNOLOGY AND/OR OUTPUTS UNDER THIS AGREEMENT. FURTHER, THE CATERING REWARDS TECHNOLOGY AND OUTPUTS ARE INTENDED TO BE FOR INFORMATIONAL USE ONLY AND RELY UPON A VARIETY OF DATA INPUTS OF VARYING RELIABILITY, INCLUDING ASSUMPTIONS ASSOCIATED WITH CUSTOMER DATA. CUSTOMER ACKNOWLEDGE AND AGREE THAT ALL INVESTMENTS CARRY THE RISK OF LOSS AND ALL AUTHORIZED USERS OF THE CATERING REWARDS TECHNOLOGY AND OUTPUTS ARE ADVISED TO CONSULT THEIR OWN TAX, LEGAL AND INVESTMENT ADVISORS FOR GUIDANCE REGARDING THEIR OWN UNIQUE SITUATION AND GOALS. CATERING REWARDS SHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY.
10. Limitation of Liability
10.1. Damages
IN NO EVENT WILL CATERING REWARDS BE LIABLE TO CUSTOMER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING LOST REVENUES OR PROFITS; USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF CUSTOMER ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. CATERING REWARDS’ AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES CUSTOMER PAID TO CATERING REWARDS IN THE PRIOR TWELVE (12) MONTH PERIOD FOR THE CAUSE OF ACTION GIVING RISE TO SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN, NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR PAYMENT OF FEES OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS.
11. Indemnification
11.1. Customer Indemnity
Customer shall indemnify, defend and hold harmless Catering Rewards, its affiliates, and its and their respective employees, principals, directors, agents, successors and assigns (each, a “Catering Rewards Indemnitee”), for, from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third party claim, demand, suit or administrative proceeding (each, a “Claim”) (i) that the Customer Data, or any use of the Customer Data with the Catering Rewards Technology, Outputs, and/or Professional Services deliverables in accordance with this Agreement, infringes, violates, and/or misappropriates such third party’s intellectual property or privacy rights; or (ii) based on Customer’s or any user’s (a) negligence or willful misconduct; (b) use of the Catering Rewards Technology, Outputs, and/or Professional Services deliverables in a manner not authorized by this Agreement; (c) use of the Catering Rewards Technology, Outputs, and/or Professional Services deliverables in combination with data, software, hardware, equipment or technology not provided by Catering Rewards or authorized by Catering Rewards in writing; or (d) modifications to the Catering Rewards Technology and/or Professional Services deliverables not made by Catering Rewards.
11.2. Catering Rewards Indemnity
Catering Rewards will indemnify, defend and hold harmless Customer and their Authorized Users (each, a “Customer Indemnitee”), for, from and against any Losses arising out of or resulting from any Claim that the Catering Rewards Technology, when used in accordance with the terms of this Agreement, infringes or misappropriates such third party’s US intellectual property right; provided that the foregoing will not apply to the extent that the alleged infringement or misappropriation arises from Claim(s) for which Customer is obligated to indemnify any Catering Rewards Indemnitee hereunder and/or arising out of Customer’s breach of this Agreement. This section sets forth any Customer Indemnitee’s sole remedy and Catering Rewards’ sole liability and obligation for any actual, threatened, or alleged claims that the Catering Rewards Technology infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
11.3. Indemnification Procedures
The party seeking indemnification hereunder (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing following receipt of notice of any Claim in respect of which indemnity may be sought under such section, which notice shall assert such Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall have the right to control such defense at the Indemnifying Party’s reasonable expense. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement if such settlement does not release the Indemnified Party from all liabilities with respect to such Claim or involves an admission of fault or wrongdoing by an Indemnified Party.
12. Term and Termination
12.1. Term
This Agreement becomes effective upon Customer’s acceptance of these Terms and remains effective until terminated in accordance with this section (the “Term”).
12.2. Termination
In the event that a Party (i) has breached any of the warranties or material provisions contained in this Agreement (including payment obligations) and failed to cure such breach within thirty (30) days following receipt of written notice thereof by the non-breaching Party (which notice shall set forth a description of the breach); or (ii) becomes insolvent, ceases conducting business in the ordinary course, makes a general assignment for the benefit of creditors, or becomes subject to voluntary or involuntary bankruptcy or liquidation proceedings; then the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such non-breaching Party, will be entitled to terminate this Agreement by providing written notice of such termination to the Party committing the breach. Without limiting the foregoing, in the event of Catering Rewards’ termination of this Agreement for breach, the due dates of all outstanding invoices will automatically accelerate so they become due and payable on the effective date of such termination.
12.3. Effect of Termination
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue all use of the Catering Rewards Technology and shall pay Catering Rewards all Fees accrued through the effective date of termination within thirty (30) days of Catering Rewards’ invoice therefor. Payment of this final invoice shall not bar any remedy, legal, equitable, or otherwise available to Catering Rewards, and no expiration or termination will affect payment obligations for all Fees that may have become due before such expiration or termination, or entitle any party to any refund. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of this Agreement shall survive, including, without limitation, all usage responsibilities and rights (Sections 2 and 3.1) and all confidentiality obligations (Section 6).
13. Rewards Expiration and Breakage
Catering Rewards’ intent is for catering customers to redeem and enjoy all of the loyalty rewards earned through the program, maximizing guest engagement and value for both customers and the participating location. However, for program integrity and accounting clarity, points cannot retain value indefinitely and must be subject to expiration and breakage as described herein.
13.1 Expiration of Unredeemed Rewards
Reward points earned by a catering customer at a participating location will expire if the customer has not placed a fulfilled order (defined as picked-up or delivered) at that location within the preceding twelve (12) months. Expired points shall automatically terminate and be removed from the customer’s account.
13.2 Ownership and Split of Breakage
Unless otherwise specified by Catering Rewards within the Services or a written amendment, all expired/unredeemed reward points (“Breakage”) become the sole property of Catering Rewards. Catering Rewards may recognize and treat all such breakage as its own for financial, accounting, or other purposes, and neither the Customer nor any third party shall be entitled to claim or receive any value, credit, or compensation for any expired points.
13.3 Breakage After Program Termination
If a restaurant location cancels its Catering Rewards subscription, any customer reward points subsequently expiring (regardless of when they were earned or when the account was deactivated) shall be allocated solely to Catering Rewards. No portion of such post-termination breakage shall be paid or credited to the ex-customer or third parties.
14. Miscellaneous
14.1. Entire Agreement
This Agreement shall supersede all prior agreements, communications, representations and understandings, either oral or written, between Catering Rewards and Customer with respect to the subject matter contained herein. All terms and conditions on any Customer-issued purchase order, order acknowledgment or other documents in connection with the services herein shall be deemed deleted and of no force or effect. This Agreement may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party; provided that Catering Rewards may update these Terms by posting updated terms and providing notice within the Services, and Customer’s continued use after the effective date of such update constitutes acceptance.
14.2. Legal Notices
All notices, requests, demands, claims, and other communications hereunder will be in writing and shall be deemed duly given (i) when delivered personally to the recipient, upon receipt; (ii) when sent by electronic mail or facsimile, on the date of transmission to such recipient, if received during normal business hours and, if not, the next business day after transmission; (iii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid); or (iv) three (3) business days after being mailed and addressed to the recipient. Notices for Catering Rewards should be sent to 1902 W Union Hills Dr, #42472, Phoenix, AZ, 85080, or such other address as Catering Rewards may provide by notice.
14.3. Force Majeure
Except with regard to payment obligations to timely pay all Fees, no Party to this Agreement shall be liable to the other by reason of any failure or delay in performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the reasonable control and without the fault of such Party. Such causes may include but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, freight embargoes, widespread unavailability of energy resources, riots or war, or any unusually severe weather conditions or similar causes beyond the reasonable control and without the fault of any such Party. In the event of any force majeure occurrence, the disabled Party shall promptly and in writing advise the other Party if it is unable to perform due to a force majeure event, the expected duration of such inability to perform, and of any developments that appear likely to affect the ability of the disabled Party to perform any of its obligations in whole or in part.
14.4. Waivers
No waiver by either Party of any breach or default hereunder by the other shall operate as a waiver of any other breach or default or of a similar breach or default on a future occasion. No waiver of any term or condition hereof by either Party shall be effective unless the same shall be in writing and signed by both Parties.
14.5. Severability
In the event that any provision of this Agreement (other than a provision which goes to the essence of the consideration for this Agreement) is declared invalid, unenforceable or void, to any extent, by a court of competent jurisdiction, the remainder of this Agreement and the application thereof shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
14.6. Injunctive Relief
In the event of a breach or a threatened breach by a Party of any of the provisions of Sections 2, 3, 6, or 7 of this Agreement, the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such Party, will be entitled to seek specific performance and/or injunctive or other equitable relief against the breach or threatened breach from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security).
14.7. Governing Law
This Agreement and any disputes arising out of or relating to this Agreement will be governed by, construed, and interpreted in accordance with the internal laws of the State of Arizona, without regard to any choice of law principle that would require the application of the law of another jurisdiction. Any legal action or proceeding concerning this Agreement will be brought exclusively in federal and state courts located in Maricopa, Arizona. All parties consent to the exclusive jurisdiction of those courts and waive any objection to the propriety or convenience of such venues.
14.8. Export Regulations
Customer understand that Catering Rewards is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Customer warrant that they will comply in all respects with the export and re-export restrictions applicable to the Catering Rewards Technology and Professional Services. Customer agree to indemnify and hold Catering Rewards harmless from any loss, damages, liability or expenses incurred by Catering Rewards as a result of their failure to comply with any export regulations or restrictions.
14.9. Assignment
If Customer is acquired by another entity, person or business, whether by merger, consolidation, reorganization, purchase of assets, or otherwise (a “Change of Control”), the rights granted hereunder will extend only to the business operated prior to the Change of Control, and the Catering Rewards Technology and Outputs may not be used with respect to the business of the acquirer entity or business without the prior written consent of Catering Rewards, which consent may be withheld in its sole discretion. Any purported assignment in violation of this Agreement is null and void. This Agreement shall inure to the benefit of Catering Rewards, Customer and any successors or assigns of Catering Rewards and Customer. Except with respect to Catering Rewards Indemnitees and Customer Indemnitees, no other third party shall have any rights hereunder.
14.10. Construction
This Agreement shall be construed as if drafted jointly by the Parties and no presumption shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any law shall be deemed also to refer to all rules and regulations promulgated thereunder unless the context requires otherwise.
14.11. Relationship of Parties
Catering Rewards is an independent contractor of Customer, and Customer hereby acknowledge that Catering Rewards may engage subcontractors to assist with its performance hereunder. Nothing herein shall be construed as creating a joint venture, partnership, or similar relationship.
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