Last updated on November 17, 2022.
This Foodee Platform Services Agreement is an agreement (collectively with any Order Forms, referred to as the “Agreement”) between Customer and Foodee Media Inc., a company incorporated under the laws of British Columbia, with its head office located at 333 Seymour St, Vancouver, BC V6B 5A7, Canada and its Affiliates (“Foodee”, “us”, “our”). The term “Customer” refers to the organization that that is engaging Foodee for the services contemplated under this Agreement.
Each of Foodee and Customer shall individually be referred to as a “Party” and jointly as the “Parties”. This Agreement is entered into the earlier of: (a) the date Customer first uses any part of the Foodee Platform; (b) the date Customer submits an Order Form; and (c) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
This Agreement governs Customer, and its Authorized Users, access to and use of: (i) the Foodee website located at www.food.ee (the “Website”); (ii) the Foodee online meal ordering tool (the “Foodee Platform”); and (iii) all other products or services (including related delivery and support services, and on-site guest restaurant service) provided by Foodee pursuant to or in connection with the Foodee Platform, as described in this Agreement (collectively, (i) through (iii) are the “Services”).
By using the Foodee services (including the Website), Customer acknowledges that Customer has read, accepts and agrees to be bound by and comply with the terms and conditions set out in this Agreement, as amended from time to time in accordance with section 30(i). If Customer does not accept and agree to be bound by this agreement, Customer will immediately cease any further use of the Foodee services. Customer represents and warrants to Foodee that Customer has the capacity to enter into this legally binding agreement. If Customer is using the Foodee services on behalf of another individual or organization, Customer hereby represents and warrants to Foodee that Customer has the authority to bind such individual or organization to this Agreement.
CUSTOMER ACKNOWLEDGES AND AGREES THAT RESTAURANTS OFFERING THEIR PRODUCTS AND SERVICES THROUGH THE FOODEE PLATFORM ARE INDEPENDENT PERSONS OR ORGANIZATIONS AND NOT SUBCONTRACTORS, AGENTS, OR EMPLOYEES OF FOODEE AND FOODEE TAKES NO RESPONSIBILITY WHATSOEVER FOR THE SERVICES AND PRODUCTS, INCLUDING MEALS, OFFERED BY THE RESTAURANTS.
- Account Administrator shall mean persons that Customer authorizes to access certain administrative functionality in the Foodee Platform in connection with the Foodee Customer Account, including placing Meal Orders and creating individual user accounts in connection with the Foodee Customer Account.
- ACH shall mean Automated Clearing House.
- Action shall mean any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
- Affiliate shall mean any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
- Authorized Users shall mean Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased.
- Confidential Information shall mean valuable materials, information, and/or data which such other Party considers to be confidential and proprietary relating to such other Party’s and its affiliates’ intellectual property, know-how, businesses, operations, finances and/or marketing, research and development and/or other plans and strategies. All such materials, information and/or data, together with all copies thereof, whether written or recorded in electronic or other format and on whatever media will be considered Confidential Information.
- Content shall mean any information, material or content (including features, restaurants, menus, Meals, and prices) contained on or provided through the Foodee Platform.
- Customer Data shall mean any data, information, content, records, and files that Customer (or any of its Authorized Users) load, receive through, transmit to or enter into the Foodee Platform, including any Personal Data.
- Customer Failure shall mean a delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement or SOW.
- Customer Materials shall mean Customer trademarks, Customer Data, and other materials and information provided by or on behalf of Customer or its Authorized Users.
- Customer Systems shall mean Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
- Documentation shall mean any manuals, instructions, or other documents or materials that Foodee provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Foodee Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
- First Derivative Data shall mean de-identified data that does not identify an individual and with respect to which there is no reasonable basis to believe that the data can be used to identify an individual. This data is used by Foodee in an aggregate manner, and may be used, among other things, to compile statistical and performance information related to the provision and operation of the Services.
- Foodee Customer Account shall mean an account issued to Customer by Foodee.
- Foodee User ID shall mean an associated username and password.
- Force Majeure Event shall mean any circumstances beyond Foodee’s reasonable control.
- Harmful Code means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Foodee systems as intended by this Agreement. Harmful Code does not include any Foodee Disabling Device.
- Indemnitee shall mean the party seeking indemnification.
- Indemnitor shall mean the indemnifying party.
- Initial Term shall be defined by the time period outlined in section 4.A.
- Fees shall mean the fees described in any Order Form, or otherwise in connection with each Meal Order.
- Foodee Intellectual Property shall mean the Services and underlying technology, including without limitation, any and all materials, works, information, software, tools, technology, know-how, updates, upgrades, fixes, patches, error corrections, specifications, deliverables or other materials (including without limitation the Foodee Materials) developed or provided by Foodee or on its behalf under this Agreement, and any and all Intellectual Property Rights to the foregoing.
- Foodee Materials shall mean materials, algorithms, software, data, and/or information developed or provided by or on behalf of Foodee and its contractors, including data and/or information that (i) is directly or indirectly derived from the Customer Data and/or other Customer Materials, and (ii) is de-identified such that it does not identify an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify an individual, and all Intellectual Property Rights in the foregoing. Foodee Materials include, without limitation, (1) artificial intelligence (“AI”) and machine learning (“ML”) algorithms, (2) training data for AI and ML algorithms that has been de-identified as set forth above in subsection (ii), (3) gains, weights, inferences and other parameters calculated or derived from training data for AI and ML algorithms, (4) methods of training AI and ML algorithms, (5) works and derivative works created by, and results of the operation of, such AI and ML algorithms, and (6) all Intellectual Property Rights in the foregoing.
- Foodee Disabling Device shall mean any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Foodee or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Foodee or its designee.
- Intellectual Property Rights shall mean all intellectual property rights of any kind, worldwide, including without limitation trade secrets, patents, copyrights, trademarks, service marks, know-how, moral rights and other intellectual property rights existing under the laws of any governmental authority, domestic or foreign, including all applications and registrations relating to any of the foregoing.
- Losses shall mean any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- Meals shall mean all food, drinks and other products in an order.
- Meal Order shall mean events where Customer places orders and pays for Meals.
- Notice shall mean all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement.
- Order Form shall mean any order form that references this Agreement or that is otherwise placed by Customer through the Foodee Platform and accepted by Foodee.
- Recipient Party shall mean the Party who receives Confidential Information.
- Person shall mean an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
- Personal Data shall mean any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data will also include, as applicable law requires, the data under the defined terms of Personal Data, personally identifiable information, credit card information, or patient health information.
- Quote shall mean Meal selections in connection with Customer Foodee Customer Account.
- Representative Party shall mean each Party and its respective directors, officers, employees, representatives, and agents.
- SOW shall mean the Statement of Work, the document where the Parties agree to specific Services.
- Specifications shall mean the specifications for the Services set forth in a SOW.
- Subcontractor shall mean a third party which Foodee engages to perform the Services.
- Third-Party Materials shall mean materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Foodee.
- Foodee Platform and Services
- Subject to Customer, and its Authorized Users, compliance with this Agreement:
- Foodee will make the Foodee Platform available to Customer, for use in accordance with the Permitted Use, on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Authorized Users, for ensuring only Authorized Users access and use the Foodee Platform, and for Authorized Users’ use of the Foodee Platform in compliance with this Agreement.
- Foodee will perform, on the terms and conditions set out in this Agreement, the services and other obligations (including the delivery of Meal Orders) described: (i) on its Website; or (ii) on a Order Form.
- Subject to Customer, and its Authorized Users, compliance with this Agreement:
- Changes to the Foodee Platform
- Foodee reserves the right to change the Content of the Foodee Platform at any time, and from time to time, without notice.
- Use of the Foodee Platform
- The Foodee Platform is provided solely to: (i) enable Authorized Users to view, access and browse restaurant Meal menus available to Authorized Users through the Foodee Platform; (ii) place Meal Orders; (iii) enable Authorized Users to view and access upcoming and past Meal Orders; or (iv) enable Authorized Users to view, access and maintain Authorized Users account (collectively, (i) through (iv) constitute “Permitted Use”).
- Foodee retains the right, at its sole discretion, to deny Customer and its Authorized Users use of the Foodee Platform upon Customer’s violation of this Agreement or use of the Foodee Platform other than for the Permitted Use. Customer and its Authortized Users will cease and desist from any such access or use of the Foodee Platform immediately upon request by Foodee.
- Customer Data; Reservation of Rights
- Customer retains all rights, title and interest, including all intellectual property rights, in and to the Customer Data. Notwithstanding the foregoing and subject to this Agreement, Customer grants to Foodee throughout the Term a non-exclusive, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Foodee Services; (ii) improve and enhance the Foodee Services and Foodee’s other offerings; and (iii) produce First Derivative Data. Foodee may use, process, store, disclose and transmit the First Derivative Data for any purpose and without restriction or obligation to Customer of any kind.
- Suspension of Access; Scheduled Downtime; Modifications
- Foodee may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity or under this Agreement suspend Customer’s access to or use of the Foodee Platform:
- for scheduled maintenance;
- due to a force majeure event;
- if Foodee believes in good faith that Customer or any Authorized User has violated any provision of this Agreement;
- to address any emergency security concerns;
- if required to do so by a regulatory body or as a result of a change in applicable law; or
- make any modifications to the Foodee Platform.
- Foodee may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity or under this Agreement suspend Customer’s access to or use of the Foodee Platform:
- Foodee reserves the right, in its sole, reasonable, discretion, to make any changes to the Services and Foodee Materials that it deems necessary or useful to:
- maintain or enhance:
- the quality or delivery of Foodee’s services to its Customers;
- the competitive strength of or market for Foodee’ services; or
- the Services’ cost efficiency or performance.; or
- comply with applicable law.
- Foodee may engage Subcontractors to provide the Foodee Services. If Foodee engages any Subcontractors, it shall be responsible for and will ensure compliance by its Subcontractors with all the terms and conditions of this Agreement, and any breach by such Subcontractors (and/or its employees) of any provision of this Agreement will be deemed a breach by Foodee hereunder.
- Customer Account; User Accounts; and Account Administrators
- Authorized Users may sign up for, or Foodee may issue to such individuals, a Foodee Customer Account and Foodee User ID that will allow the User to use the Foodee Platform to add Meals to a Meal Order, place Meal Orders, review a User’s Meal Order history, and manage their account. If applicable, Foodee will also issue a separate Foodee User ID for each Account Administrator in addition to the standard User account. An Account Administrator may directly provide other Authorized Users with a Foodee User ID.
- Customer will be responsible for the actions of Authorized Users and Account Administrators within the Foodee Platform, including any orders made.
- Authorized Users must keep their Foodee User ID secure and not share their Foodee User ID with anyone else, and Customer will not collect or harvest any Personal Data, including Personal Data of other Foodee customers or Authorized Users. Notwithstanding the foregoing, and for greater certainty, nothing in this Section 8 will prevent an Account Administrator from sharing a Foodee User ID with other Authorized Users to enable such Authorized Users to add Meals to a Meal Order pursuant to Customer’s Foodee Customer Account, or from accessing the Personal Data of such other Authorized Users, in each case, as and to the extent required to place or fulfill such Meal Order.
- Making Meal Orders; Amending Meal Orders; Cancellations and Refunds
- Once a Foodee Customer Account has been created, and once an Authorized User has made a Meal selection, the Authorized User may checkout the items in their cart by clicking the “Checkout” button. The Authorized User will then have the opportunity to review their cart items. After reviewing their cart items, the Authorized User will be asked to provide additional delivery details and payment. Once this additional information has been provided, and after all applicable Authorized Users have added Meals to their cart, Authorized Users may then click the “Submit Meal Order” button to submit their Meal Order. An Authorized User may edit their cart items at any time prior to submitting their Meal Order. Once submitted, the Meal Order will be sent to the applicable restaurant and the payment, as applicable, will be processed. Authorized Users cannot edit their Meal Order once they have clicked the “Submit Meal Order” button.
- Upon request, a Foodee staff member may provide Users with a Quote, where an email will be sent to Users to review and confirm the Meal Order (the “Confirmation Email”). Users may click the “Accept” button in the Confirmation Email to submit their User Meal Order. Once submitted, User Meal Order will be sent to the applicable restaurant and Users payment, as applicable, will be processed. Users cannot edit a Quote; however, Users may click the “Reject” button in the Confirmation Email to refuse a Quote. Foodee Served quotes will be sent to Users via email. Users may accept, change, or reject the order by replying to the email.
- If Authorized Users wish to amend or cancel a Meal Order, they must contact Foodee via email at email@example.com or by phone at 1.844-8FOODEE. Foodee will use reasonable efforts to make the requested changes, however:
- Foodee does not guarantee that amendments or refunds will be allowable unless Foodee is notified of the change or cancellation of a Meal Order: (i) at least 24 hours in advance of the Meal Order’s delivery date and time for orders of less than 25 people; or (ii) at least 48 hours in advance of the Meal Order’s delivery date and time for orders of 25 people or more.
- Any modifications to a Foodee Served order must be requested with at least 3 business days from date of delivery for the order are not permitted. For cancellation of Foodee Served orders, such changes or cancellations must be made at least 3 business days in advance of the order delivery date, otherwise:
- Cancellations within 3 business days of the Foodee Served order delivery date will result in Customer being charged 50% of the order amount.
- Cancellations within 2 business days of the Foodee Served order delivery date will result in Customer being charged 80% of the order amount.
- Cancellations without at least 1 business day notice from the Foodee Served order delivery date will result in Customer being charged 100% of the order amount.
- It is possible that Foodee or the applicable restaurant will be unable to complete a Meal Order as submitted, and in such cases, Foodee will use reasonable efforts to communicate such cancellation to Customer as quickly as possible. Payment for such Meal Order will be refunded in the event that the Meal Order is rejected by the applicable restaurant or canceled by Foodee. THE OBLIGATION TO REFUND PAYMENT IS FOODEE’S SOLE LIABILITY FOR SUCH CANCELLATIONS, AND CUSTOMER AGREES THAT NEITHER FOODEE NOR THE RESTAURANT WILL HAVE ANY FURTHER LIABILITY TO CUSTOMER FOR MEAL ORDERS THAT HAVE BEEN REJECTED BY THE RESTAURANT OR CANCELED BY FOODEE.
- Fees and Payment
- Customer will pay to Foodee the Fees. If Customer’s use of the Foodee Services requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
- Unless otherwise set out in an applicable Order Form, payment for Meal Orders must be made with an accepted credit card through the Foodee Platform. The Foodee Platform uses a Payment Processing Services Provider, as set out in Section 22 (Payment Processing Services) below, to affect charges onto the provided credit card. Customer acknowledges and agrees that there may be delays with processing payments and transactions and that it can take up to 60 days for payment to be processed.
- If an alternative payment option is indicated in an applicable Order Form, Foodee will prepare and send to Customer, at the then-current contact information on file with Foodee, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 15 calendar days of the invoice date.
- If Customer believes Foodee has charged or invoiced Customer incorrectly, Customer must contact Foodee no later than 15 days after having been charged by Foodee or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Customer may not withhold or set off any amounts due under this Agreement. Foodee reserves the right to suspend Customer’s access to the Foodee Platform and any delivery of Foodee Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- Restaurant Menu Prices
- Restaurant menu prices listed on the Foodee Platform are set out in Canadian dollars in Canada and in U.S. dollars in the United States, and in each case do not include applicable tax and delivery charges. Taxes and delivery charges will be added as separate line items at checkout and paid by Customer in addition to the Meal Order price.
- Should the restaurant menu display an incorrect price for a Meal Order on the Foodee Platform, Foodee will use reasonable efforts to communicate such error to applicable Authorized Users as quickly as possible. Foodee or the applicable restaurant is under no obligation to fulfill aMeal Order at the incorrect price. Customer acknowledge and agree that prices set out on the Foodee Platform may be different than the prices for the same items in a restaurant’s physical location and that any such differences will not entitle Customer or its Authorized Users to a refund or a reduction in the price of a Meal Order.
- Customer Care
- If Customer has any problems, questions or suggestions with respect to the Foodee Services or a Meal Order, please contact Foodee’s customer care team via email at firstname.lastname@example.org or by phone at 1.844-8FOODEE, from Monday to Friday, 8 am – 10 pm ET (excluding statutory holidays).
- The restaurants listed on the Foodee Platform operate independently from Foodee and are solely responsible for preparing and packaging all Meals ordered through the Foodee Platform. Each restaurant is solely liable for the quality and freshness of its products, and Foodee does not verify the credentials, representations, products or prices offered by any restaurants. Foodee is not responsible for the restaurants’ food preparation or safety and does not verify any restaurant’s compliance with applicable laws.
- Confidential Information
- For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Data: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Notwithstanding Section 14(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Foodee, to potential assignees, acquirers or successors of Foodee if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Foodee.
- Term and Termination; Survival
- This Agreement shall commence upon the date of acceptance by Customer and shall continue for a twelve (12) month period, unless terminated earlier in accordance with this Section 15 (the “Initial Term”). Thereafter, this Agreement shall renew annually each year thereafter, unless either party provides the other with prior written notice of its intent to terminate as required under this Section 15 (the “Renewal Term”). Collectively, the Initial and Renewal Term will be referred to as the “Term” of the Agreement.
- Each Order Form, if any, will set out the terms of such Order Form and any terms and conditions relating to the renewal of such Order Form. If the Order Form term extends past the termination of the Term, then the terms and conditions of this Agreement that apply to or govern such Order Form will survive the termination of the Term. No new Order Forms under this Agreement may be entered into between the Parties after the termination of the Term. This Agreement (or any Order Form) may be terminated by either Party, in its discretion, upon not less than 30 days’ prior written notice to the other Party (which notice may be given by Foodee by email, at Customer’s current email address on file with Foodee, or through the Foodee Platform, and which notice may be given by Customer by email to email@example.com or through any then-available interfaces on the Foodee Platform). Upon termination of this Agreement, Customer will immediately cease use of the Foodee Platform.
- The following Sections, together with any other provision of this Agreement which expressly or by its nature survives, or which contemplates performance or observance subsequent to, termination of this Agreement, will survive termination of this Agreement for any reason: 4 (Customer Data; Reservation of Rights); 13 (Restaurants); 14 (Confidential Information); 16 (Ownership), 17 (Privacy), 18 (No Unlawful or Prohibited Use), 19 (Third Party Websites), 20 (Viruses), 21 (Communications Not Confidential), 22 (Payment Processing Services), 24 (Disclaimer and Exclusion of Liability), 25 (Limitation of Liability), 26 (Customer Indemnity), 27 (Geographic Application of the Foodee Services), 28 (Force Majeure), 29 (Governing Law and Jurisdiction), 30 (General Provisions), and this Section 15(d) (Survival).
- All Content, including all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Foodee Platform or otherwise made available as part of the Foodee Services, are owned or licensed by Foodee and are protected by copyright, trade-mark and other intellectual property laws.
- Foodee expressly reserves all rights in the Foodee Platform, Foodee Services, First Derivative Data, Foodee Materials, and all materials provided as part of the Services that are not specifically granted to Customer. Customer acknowledges that all right, title and interest in the Foodee Platform, Foodee Services, all materials provided by Foodee in connection with this Agreement (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein and thereto will remain with Foodee (or third party suppliers, if applicable), and that the Foodee Platform and all materials provided by Foodee hereunder are licensed and not “sold” to Customer. In no event shall the Services or any other Foodee Intellectual Property be deemed to be “works made for hire”, nor shall Foodee be deemed to have sold, assigned, or conveyed any rights in them.
- Exhibit A of this Agreement will govern the parties agreement on the processing of Personal Data in performance of the Services.
- Customer acknowledges that restaurants may have additional privacy policies or statements which govern their practices in collecting, storing, using and disclosing Authorized User’s Personal Data and Authorized Users wil read such additional privacy policies or statements carefully. It is Authorized Users’ responsibility to familiarize themselves with such privacy policies or statements imposed by any restaurant with whom they or Customer elects to deal through the Foodee Platform.
- No Unlawful or Prohibited Use
- Customer will not, without Foodee’s prior written permission, use the Foodee Platform or the Content for purposes other than Permitted Use.
- Without limiting the generality of the foregoing, Customer will not, and will not permit anyone else to: (i) “frame”, “mirror” or otherwise incorporate the Foodee Platform or the Content or any part thereof on any commercial or non-commercial website; (ii) access, monitor, or copy any part of the Foodee Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without Foodee’s express written permission; (iii) violate the restrictions in any robot exclusion headers on the Content or the Foodee Platform or bypass or circumvent other measures employed to prevent or limit access to the Foodee Platform; (iv) take any action that imposes, or may impose, in Foodee’s discretion, an unreasonable or disproportionately large load on the Foodee Platform; (v) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Foodee Platform or the Content; (vi) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Foodee Platform or any restaurant menu, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Foodee Platform; (vii) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Foodee Platform; (viii) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Foodee Platform or the Content; (ix) create derivative works based on the Foodee Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or otherwise exploit any part of the Foodee Platform or the Content; (x) use the Foodee Platform in a manner that violates the rights (including intellectual property rights) of any third party; or (xi) upload to or transmit through the Foodee Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory or violates any laws, in each case as determined by Foodee in its sole discretion.
- Third Party Websites
- The Foodee Platform may provide links to third party websites. Foodee does not endorse the information contained on those websites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked website is not under Foodee’s control, and if Authorized Users choose to access any such website, Authorized Users do so entirely at their own risk.
- The downloading and viewing of Content are done at Authorized Users own risk. Foodee cannot and does not guarantee or warrant that the Foodee Platform or the Content are compatible with an Authorized User’s computer system or that the Foodee Platform or the Content, or any links from the Foodee Platform or the Content, will be free of viruses, worms, malware, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. Authorized Users are responsible for implementing safeguards to protect the security and integrity of their computer system.
- Communications Not Confidential
- Foodee does not guarantee the confidentiality of any communications made by Customer or Authorized Users through the Foodee Platform. Although Foodee generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Foodee Platform, Customer understands, agrees, and acknowledges that Foodee cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with Customer use of the Foodee Platform.
- Payment Processing Services
- Payment processing services for the Foodee Services are provided by Stripe Payments Canada Ltd. (in Canada) and Stripe Payments (in the United States) or such other payment services providers as Foodee may choose from time to time (collectively referred to as the “Payment Processing Services Provider”). Payment Processing Services Providers are independent persons or organizations and not subcontractors, agents, or employees of Foodee. Customer hereby authorizesFoodee to share with the Payment Processing Services Provider that financial information, banking details and transaction information related to use of the payment processing services and the Foodee Services. Customer agrees that Foodee is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
- Customer Warranty
- Customer represents and warrants to, and covenants with, Foodee that the Customer Data will only contain Personal Data in respect of which Customer has provided all notices and disclosures (including to each Authorized User), obtained all applicable third party consents and permissions, and otherwise have all authority, in each case as required by applicable laws, to enable Foodee to provide the Foodee Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Data, including by or to Foodee and to or from all applicable third parties.
- DISCLAIMER AND EXCLUSION OF LIABILITY
- USE OF THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT IS AT CUSTOMERS OWN RISK. THE FOODEE PLATFORM, FOODEE SERVICES, AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY LAW, FOODEE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE FOODEE PLATFORM, FOODEE SERVICES, AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT, OR THAT THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. FOODEE EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE FOODEE PLATFORM AND THE CONTENT.
- RESTAURANTS MARKETING THEIR PRODUCTS AND SERVICES THROUGH THE FOODEE PLATFORM ARE INDEPENDENT PERSONS OR ORGANIZATIONS AND NOT SUBCONTRACTORS, AGENTS OR EMPLOYEES OF FOODEE. FOODEE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONTRACTUAL BREACHES OR NEGLIGENCE OF ANY RESTAURANTS OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR THE SERVICES AND THE PRODUCTS, INCLUDING MEALS, OFFERED BY THE RESTAURANTS.
- Limitation of Liability
- SUBJECT TO SECTION 25(C), IN NO EVENT WILL EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT.
- SUBJECT TO SECTION 25(C), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS OR ASSIGNS IN CONNECTION WITH OR UNDER THIS AGREEMENT, INCLUDING IN CONNECTION WITH CUSTOMER’S USE OF, OR INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT, OR CUSTOMER USE OF, OR INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT EXCEED $100.00 (ONE HUNDRED DOLLARS). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
- THE LIMITATIONS SET FORTH IN SECTIONS 25(A) AND (B) WILL NOT APPLY TO LIMIT ANY LIABILITIES, DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO: (I) CUSTOMER’S UNAUTHORIZED USE OF THE FOODEE SERVICES, INCLUDING USE IN CONTRAVENTION OF SECTION 4 (USE OF THE FOODEE PLATFORM) OR SECTION 18 (NO UNLAWFUL OR PROHIBITED USE); OR (III) CUSTOMER’S OBLIGATIONS UNDER SECTION 10 (FEES AND PAYMENT) OR SECTION 26 (CUSTOMER INDEMNITY).
- THE LIMITATION ABOVE REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Customer Indemnity
- Customer will defend, indemnify and hold harmless Foodee and its officers, directors, employees, and agents (each, a “Foodee Indemnitee”) from and against any and all losses incurred by a Foodee Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party that arises from or relates to: (a) Customer violation of any law or the rights of a third party; or (b) Customer use of the Foodee Platform in violation of this Agreement.
- Geographic Application of the Foodee Services
- Not all of the Foodee Services are available in all jurisdictions. Furthermore, nothing on the Foodee Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law.
- Force Majeure
- Foodee will not be liable to Customer for any failure of or delay in the performance of its obligations under this Agreement for the period that such failure or delay is due to causes beyond Foodee’s reasonable control, including acts of God, war, strikes or labour disputes, embargoes, government orders or any other force majeure event.
- Governing Law and Jurisdiction
- This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. These laws apply to Customer access to or use of the Foodee Platform, the Foodee Services, or the Content, notwithstanding Customer or Authorized User domicile, residency or physical location. The Foodee Platform, the Foodee Services, and the Content are intended for use only in jurisdictions where they may lawfully be offered for use.
- Except as restricted by applicable law, Customer hereby consents to the exclusive jurisdiction and venue of courts in Vancouver, British Columbia, Canada in all disputes arising out of or relating to the use of the Foodee Platform, the Foodee Services, or the Content. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights in any appropriate jurisdiction.
- General Provisions
- Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, Foodee may, upon notice to Customer, assign this Agreement and its rights, benefits, warranties and obligations hereunder, in whole or in part, at any time to a third party in connection with a merger, acquisition, or transfer of all or substantially all of Foodee’s assets or voting securities or to an affiliate without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement inures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
- Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of Sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
- In the event of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the following descending order of priority will apply to the extent of such conflict or inconsistency: (i) the terms and conditions of the main body of this Agreement; and (ii) the applicable Order Form (except to the extent such Order Form expressly states that it is intended to amend this Agreement and identifies the specific provisions to be amended).
- Foodee may, in its sole discretion, provide any notices to Customer in connection with this Agreement through the Foodee Platform or by email at the then-current email address for Customer on file with Foodee. Customer may provide notices to Foodee by writing to the following address: 333 Seymour St, Vancouver, BC V6B 5A7 or by email at firstname.lastname@example.org. Foodee may change its notice contact information from time to time by posting updated contact details on the Website.
- Foodee’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provisions or right.
- If any of the provisions contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from this Agreement and the remaining provisions will continue in full force and effect.
- If any of the provisions contained in this Agreement conflict with the terms of any other agreement between the Parties, then this Agreement will prevail.
- No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, FOODEE MAY UNILATERALLY AMEND THIS AGREEMENT (EXCLUDING ANY ORDER FORMS), IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY FOODEE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- Foodee’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
- It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Exhibit A – Data Processing Addendum
This Data Processing Addendum (the “DPA”) describes the obligations of the parties regarding the processing of Personal Data of Customer.
The provisions set forth below apply where Provider processes Personal Data for the purposes of performing the Services.
Controller: any natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data that may be performed as part of the Agreement. Unless, otherwise specified, Customer is Controller.
Data Protection Regulation(s): This means all applicable laws and regulations relating to the processing, protection or privacy of the Personal Data, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This may include the GDPR, and all additional regulations and rules in force in the relevant Member State(s) of the European Union applicable to the Processing.
Data Subject: any identified or identifiable natural person from whom Personal Data is collected. This definition may be expanded based on local Data Protection Regulation requirements. (e.g. the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and related regulations or guidance provided by the California Attorney General (collectively “CCPA”) definition including that of the household). The type(s) of Personal Data processed by Processor and other relevant information describing the nature and purpose is specified in Appendix A of this Exhibit A.
Data Subject Request: a request from a data subject to exercise the data subject’s right of access, right to rectification, restriction of processing, erasure, data portability, objection to the processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”).
General Data Protection Regulation or GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27th, 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC. GDPR applies to Customer Personal Data of this DPA when Customer specifically intended to draw European Economic Area (EEA) Data Subjects as customers.
Personal Data: any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Personal Data will also include, as applicable Data Protection Regulation requires, the data under the defined terms of personal information, personally identifiable information, credit card information, or patient health information. The type(s) of Personal Data processed by Processor and other relevant information describing the nature and purpose is specified in Appendix A of this Exhibit A.
Personal Data Breach or Breach: any suspected or actual security incident leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Personal Data transmitted, stored, or otherwise Processed.
Processing or Processed: every operation or set of operations which is performed with regard to Personal data, including without limitation the collection, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, combining, linking to other data, blocking, erasure or destruction of Customer Personal Data. Processing includes the purposes and operations mentioned within an appendix of each SOW.
Processor: the person or body which processes or sub-processes Personal Data under the instructions of Customer or any other relevant Controller(s). Processor for the purposes of this DPA is Provider. Provider and/or its Affiliates is (are) Processor(s). Processor is also to be a Service Provider as defined under the CCPA.
Subprocessor: any natural or legal person engaged by Processor only for the performance of the Processing under the Agreement and as specifically authorized in advance in writing by Controller.
Third Party(/ies): any company or entity other than Customer, Provider, or an affiliate and other than Processor, Data Subject and Controller and persons who, under the direct authority of Controller or Processor are authorized to process Personal Data.
Third-Party Country: any country, territory, or specified sector within that country, outside of the Personal Data country of origin.
2. Compliance with Data Protection Regulation
- Each party warrants to the other that it shall comply at all times with their respective obligations under the applicable Data Protection Regulation in disclosing Personal Data to the other party, and in the performance of its obligations under the Agreement.
- Each party shall comply with its obligations as set out in the Data Protection Regulation. In the unlikely event that Provider does act as Controller in relation to any of the Personal Data Processed for the purposes of the Agreement, especially to Process the Personal Data of Customer’s employees identified as contacts, solely for the purpose of customer relationship management between Customer and Provider under the Agreement, Provider shall do so always in compliance with the Data Protection Regulation.
3. Obligations of Provider
- comply with the Data Protection Regulation in relation to its performance of the Processing, in such a way as to not expose Controller to any violation of the Data Protection Regulation;
- process Controller Personal Data as a Processor on behalf of and only in accordance with the written instructions of Controller (and only for the purposes of performing the Agreement and determined by Controller, as documented within an appendix in each SOW);
- promptly inform Controller if Provider cannot provide such compliance for whatever reason of its inability to comply, in which case Controller reserves the right to immediately and automatically suspend any Processing and/or terminate the Agreement;
- not modify, amend or alter the contents of the Personal Data unless Processor has the prior written consent of Controller;
- upon Controller’s request, assist Customer in the fulfillment of Customer’s obligations to provide Data Subjects with the required information, to respond to requests and complaints made by the Data Subjects, to put in place appropriate security measures, to notify Personal Data Breach to the supervisory authority and/or to Data Subjects if required, and to carry out a data protection impact assessment or to prior consult the supervisory authority where required;
- maintain a record of all categories of Processing activities carried out on behalf of Customer in the performance of the Agreement;
- promptly notify (by sending an email to the Customer administrator account email address) Customer if Processor receives a Data Subject Request. Considering the nature of the processing, Processor shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to a Data Subject Request under Data Protection Legislation. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Processor shall, upon Customer’s request, provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Processor is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Legislation;
- promptly inform Customer (if lawful to do so) in writing (by sending an email to the Customer administrator account email address) if it receives any correspondence or request for information from a supervisory authority in relation to Customer Personal Data to which this DPA relates; Provider shall provide such reasonable assistance to the Data Subject in order to respond to such supervisory authority; and provide assistance and cooperation by supporting Controller to carry out any required risk assessments and audits of Provider’s Data Processing operations; and
- delete or return all Customer Personal Data and any copies thereof which it is processing, has processed or have had processed on behalf of Controller in a format agreed upon with Controller after the end of the performance of the Agreement at the choice of Controller, and delete existing copies unless the applicable local law requires storage of the Personal Data. Deletion of data shall be performed in a manner that is at a minimum compliant with Data Protection Regulation requirements.
4. Security and Confidentiality Measures
- Processor shall take and implement the appropriate, relevant industry standard, technical and organizational security and confidentiality measures (examples include applicable ISO or SSAE standard industry certifications standards) to ensure the security and confidentiality of Customer Personal data, and regularly update them, to provide a level of security appropriate to the risk related the Processing of the Personal Data and to protect such data from any unauthorized or unlawful Processing, accidental loss, alteration, destruction or damage, as may be required or directed by Controller from time to time.
If the GDPR applies, these obligations must at a minimum comply with Article 32 of the GDPR.
- During the term of the Agreement, Processor shall implement and maintain a training and awareness program regarding Personal Data security for its employees and Subprocessors who may have access to Personal Data. Processor shall ensure persons authorized to process Personal Data are properly trained in the Processing of Personal Data and only have access to the Personal Data on a need-to-know basis subject to obligation of confidentiality. Processor shall also take steps to ensure that the authorized persons do not Process Personal Data except on instructions from Controller unless Processor is required to do so by locale law.
- Processor shall require that any authorized persons entrusted with Processing Personal Data hereunder have undertaken to comply with the principle of confidentiality and have been duly instructed about the Data Protection Regulation.
- Processor shall implement awareness programs on Personal Data protection and confidentiality.
- During the term of the Agreement, Processor shall implement and maintain an up-to-date training and awareness program regarding Personal Data security for its employees and Subprocessors who may have access to Personal Data. Processor shall ensure persons authorized to process Personal Data are properly trained in the Processing of Personal Data and only have access to the Personal Data on a need-to-know basis subject to obligation of confidentiality. Processor shall also take steps to ensure that the authorization persons do not Process Personal Data except on instructions from Controller, unless Processor is required to do so by locale law.
- Processor shall require that any authorized persons entrusted with Processing Personal Data hereunder have undertaken to comply with the principle of confidentiality and have been duly instructed about the Data Protection Regulation.
- Processor shall not disclose or permit the disclosure of Personal Data to any Third Party, and/or shall not subcontract whole or part of the Processing to any Third Party, unless Processor has the prior written consent of Controller or as required by Data Protection Regulation.
- Controller provides a general authorization to Processor to engage onward subcontractors that are involved in processing of Personal Data or sub-processing Personal Data in connection with the provision of the Services (“Sub-processors”), subject to compliance with the requirements in the Data Protection Regulation, all Sub-processors are bound by contractual terms no less onerous than those contained in this DPA, and subject to Processor properly vetting Sub-processors for such compliance. The parties agree that the copies of the Sub-processor Agreements that must be provided by Processor to Controller may have all commercial information, or clauses unrelated to the Standard Contractual Clauses or their equivalent and the data protection clauses, removed by Processor beforehand, and that such copies will be provided by Processor, in a manner to be determined in its discretion, only upon written request by Controller.The general authorization may be revoked in specific instances where Controller believes that a Sub-processor selected by Processor is objectionable, where such objection is reasonable. Processor must then cease the Sub-processor’s processing of Controller’s data until reasonable steps have been taken to address the objections raised by Controller and Controller has been provided with a reasonable written explanation of the steps taken to remediate the reasons for objection.
- Processor will:
- upon written request by Controller, make available to Controller a list of all Sub-processors, if any, together with a description of the nature of services provided by each Sub-processor (“Sub-processor List”). This Sub-processor List is available at https://www.Foodee.com/third-party-access and will update such a list prior to adding a Sub-processor to allow Controller reasonable time to object to any https://www.foodee.com/third-party-access such additions.; and
- be liable for the acts and omissions of its Sub-processors to the same extent Company would be liable if performing the services of each of those Sub-processors directly under the terms of this DPA, except as otherwise set forth in this DPA.
6. International Personal Data Transfers
- This Section 6 shall apply (i) where Controller is a EU Controller, or (ii) where Controller, even if not established in the European Union where Processor is established in the European Union, or where goods or services are offered to Data Subjects in the European Union, or where the behavior of such Data Subjects is monitored to the extent such behavior takes place within the European Union.
- Provider will process Personal Data in any Third-Party Country and/or have Personal Data processed in any Third-Party Country (including a Sub-processor), including for onward transfers of Personal Data from a Third-Party Country to another Third-Party Country, only where Provider has in place the required legal protections.
7. Personal Data Breach
- In the event of a Personal Data Breach arising during the performance of the services by Processor, Processor shall, at its own cost:
- notify Controller in writing about the Personal Data Breach without undue delay of becoming aware;
- after investigating the causes of such a Personal Data Breach, take actions as may be necessary or reasonably expected by Controller to minimize the effects of any Breach;
- take all actions as may be required by Data Protection Regulation and, more generally, provide Controller with reasonable assistance in relation to Controller’ obligations to notify to the supervisory authority and to the Data Subjects, as the case may be, of the Breach;
- maintain a record of all information relating to the Breach, including the results of its own investigations and authorities’ investigations; and
- cooperate with Controller and/or Customer and take all measures as necessary to prevent future Breaches from occurring again.
- In the event that it is determined in a forensic audit conducted by an independent third party engaged by Controller that a Breach is due solely or in part to Processor’s failure to comply with this Amendment, then Processor shall reimburse Controller for all reasonable costs and expenses, apportioned based on degree of fault as assigned by the audit. This reimbursement of all costs and expenses may include, but not be limited to, all fees due to such qualified, independent third party for such forensic audit, all fees and fines associated with the Breach (including notification costs), and any costs associated with a one-year contract for credit monitoring services if Controller decides to offer such monitoring as a result of the Breach. Notwithstanding the foregoing, Foodee shall not be obligated to pay for the costs of the Breach in the event that the Breach would have been avoided if the Customer had installed all updates, modifications, service pack and patches available.
8. Evidence and Audit Rights
- Processor shall promptly provide to Controller, upon request, information reasonably necessary to demonstrate its compliance with this DPA.
- During normal hours of business and with reasonable prior notice to Processor, Controller, or its designated third party, may audit Processor’s processing and maintenance of Personal Data and compliance with this DPA: (i) once annually; (ii) any time a Breach has occurred; and (iii) if Controller, in its sole discretion, reasonably believes that a Breach has occurred or Processor is not in compliance with this DPA. Such audit procedures may occur through review of documentation provided by Processor and through conversations with Processor personnel responsible for compliance with the applicable terms of this DPA, who shall be made available by Processor for such purpose. Processor shall assist and cooperate in the performance of such audit procedures.
9. Processing of Personal Data of Provider
If Customer Processes Provider Personal Data that is collected in connection with the performance of the services:
- Provider Personal Data will be Processed for purposes of contractual relationship management with Provider, risk management purposes and data analytics purposes.
- Customer shall grant rights of access, rectification, limitation, erasure, and opposition on legitimate grounds in relation to Provider Personal Data that can be exercised by sending an email to Customer’s appropriate Data Protection contact at the following email addresses: info1@Foodee.com.
- Customer shall grant the right to data portability.
- Provider Personal Data will be Processed in accordance with the Data Protection Regulation and will follow the corresponding obligations as stated in Section 3 above for Provider.
Subject to the liability limitations of the Agreement, Provider agrees to indemnify, keep indemnified and defend at its own expense Customer against all costs, claims, damages or expenses incurred by Customer or for which Customer may become liable due to any material failure by Provider or its employees, subcontractors or agents to comply with any of its obligations under this DPA or the Data Protection Regulation.