Activation of Services. Upon acceptance of this Agreement by Tacit Innovations, Tacit Innovation will activate the Services and provide the Client with access to the Platform in order for the Client to upload menu information, nutritional information and other required information. In the event that the Services include maegan™ Order or maegan™ Pay, Tacit Innovations will assist the Client in connecting the Platform to the Client’s in restaurant point of sale terminal. The Client will be solely responsible for any fees charged by the point of sale provider.
Provision of Information. The Client shall:
- ensure that Client representatives are available as Tacit Innovations may reasonably require in connection with the Services; and
- provide Tacit Innovations with timely and accurate information and documentation, as reasonably required by Tacit Innovations.
Payment of Fees.
- The Client will pay, without set-off or deduction of any kind, to Tacit Innovations the Fees set out in this Agreement and any other fees or amounts which may be charged from time to time pursuant to the terms of this Agreement.
- The Client acknowledges and agrees that licence Fees for the maegan™ Order and maegan™ Pay features of the Service are based upon a per transaction fee or a percentage of sales as indicated in this Agreement.
- Fees for maegan™ Order apply to each order submitted by the Client’s customers, and shall apply whether or not the Client fills any such order and whether or not any food or beverage provided to a customer of the Client pursuant to an order is subsequently rejected by the customer.
- Fees for maegan™ Pay apply to each payment request submitted by the Client’s customers, and shall apply whether or not any payment is subsequently refunded by the Client to a customer for any reason.
- In the event that the Client defaults on any payment and Tacit Innovations is forced to initiate collection proceedings, including but not limited to, collection agencies and/or court proceedings, the Client shall be responsible for any and all fees, expenses or charges incurred by Tacit Innovations as a result of such collection proceedings.
maegan™ Pay. The Client acknowledges that in the event the Services include maegan™ Pay that payment services will be integrated with the Client’s existing payment processing facilities and Tacit Innovations shall not be responsible for the processing of any payments and shall have no liability with respect thereto. The Client shall be responsible for entering into such agreements as may be required with their chosen third party payment processor.
- The Client acknowledges and agrees that the Services result in the creation of a contract for services between the Client and its customers. Tacit Innovations is in no way responsible for any services provided by the Client to its customers including without limitation the purchase and sale of food and beverage to its customers, food quality, nutrition and allergen information, food safety, service of alcohol, payment or any other issues all of which shall be the sole responsibility of the Client.
- The Client shall be solely responsible for uploading its menu information and other information to the Platform, including without limitation ingredient listings and nutrition and allergen information. The Client shall ensure that such information is kept up to date and accurate at all times.
- The Client shall be solely responsible for all aspects related to the sale and service of food and beverage ordered through the Platform and Services, including timeliness of service, accuracy and food quality.
- The Client shall comply with all applicable laws, rules and regulations related to the operation of the Client’s business including without limitation with respect to food handling and preparation and the sale and service of alcohol. The Client shall ensure that with respect to any alcoholic beverages ordered through the Platform and Services that the Client properly identifies and verifies the age of all persons who are served alcohol and the Client shall otherwise comply with all laws, rules and regulations related to the service of alcoholic beverages.
Limited Warranty. Tacit Innovations warrants that the Platform and Services will function substantially in accordance with any published specifications,
Disclaimer of Warranties. Tacit Innovations makes no representation or warranty whatsoever either expressed or implied, statutory or otherwise other than as expressly set forth in this Agreement, and all other representations and warranties are expressly disclaimed by Tacit Innovation, including without limiting the foregoing any representation or warranty with respect to merchantability, title, non-infringement or fitness for a particular purpose. Tacit Innovations does not warrant that the Platform or Services will meet the Licensee’s requirements nor that it will function uninterrupted or error free. Tacit Innovations makes no representation or warranty regarding accessibility to, or the privacy or security of, any of the Client’s information, files or data. The Client assumes the entire risk as to the results and performance of the Platform and Services. The Client acknowledges that it has or will have independently determined that the Platform and Services meet its business requirements and that it has not relied on any representation by Tacit Innovations as to the suitability of any item for any particular purpose. Tacit Innovations does not represent or warrant that the Platform or Services will be capable of achieving any particular result or results in the Client’s business or operations. Except as expressly stated otherwise in this Agreement, the Platform and Services are provided and licensed on an “as is” basis without warranty or representation of any kind.
Limitation of Liability. The liability of Tacit Innovations, whether arising under this Agreement, contract, tort, negligence, statutory liability or other legal theory, shall be limited to the direct and actual money damages actually incurred by the Client and in any event such liability shall not in the aggregate exceed the Fees paid to Tacit Innovations under this agreement during the one (1) month immediately prior to the date of the Claim. In no event shall Tacit Innovations be liable for punitive, exemplary, aggravated, special, indirect or consequential damages including without limiting the foregoing loss of profits or revenue, even if Tacit Innovations has been notified of the possibility of such damages, and the Client hereby waives any claim or recourse against Tacit Innovations for such damages.
Reasonableness of Limitations. The parties agree that the disclaimer of warranties and limitations of liability contained in this Agreement are reasonable in scope and that the Fees and the terms and conditions of this Agreement have been negotiated taking into account such limitations, and without such limitations Tacit Innovations would not be willing to enter into this Agreement.
Ownership of Platform and Services. The Client acknowledges as follows:
- the right to access the Platform and Services is licensed, not sold;
- all right, title and interest, in and to the Platform and the Services and all intellectual property rights therein (including without limitation all patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights) are and shall remain the sole and exclusive property of Tacit Innovations.
- the Client agrees not to take any action to jeopardize, limit or interfere in any manner with Tacit Innovation’s rights in or to the Platform and Services;
- the Client acquires no right, title or interest whatsoever in or to the Platform or Services except the limited right to use the Platform and Services as specifically provided in this Agreement; and
- the Client acknowledges that the Platform and Services are protected by copyright and other intellectual property laws and by international treaties and agrees to abide by all applicable laws, regulations and treaties in regard thereto.
Confidential Information. Except for the specific rights granted by this Agreement, the Client shall not use or disclose any confidential or proprietary information (“Confidential Information”) of the Tacit Innovations. The Client shall use the same degree of care to protect the confidentiality of any Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and agents on a need to know basis and that all such employees and agents have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of Tacit Innovations, the Client shall either return to Tacit Innovations originals and copies of any Confidential Information and all information, records and materials developed from them by the Client, or destroy the same. The Client may only disclose the general nature, but not the specific terms and conditions, of this Agreement without the prior consent of Tacit Innovations. The confidentiality obligations contained herein shall continue for a period of ten (10) years after expiration or termination of this Agreement, and with respect to any information that is a trade secret, for so long as such information remains a trade secret.
Termination. Without limiting any other rights or remedies available at law or in equity or otherwise, either party may terminate this Agreement immediately and without notice to the other party, if:
- the other party is in breach or default of any of its obligations under this Agreement and such breach or default continues unrectified for fifteen (15) days following the provision of written notice of such breach or default;
- the other party voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the other party under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to the other party’s assets; or
- the other party ceases to carry on its business.
Termination by Tacit Innovations. In addition to the provisions of section 12, and without limiting any other rights or remedies available to Tacit Innovations, at law or in equity or otherwise, Tacit Innovations has the right to terminate this Agreement immediately and without notice to the Client if Tacit Innovations does not receive any payment hereunder when due and such non-payment continues for four (4) business days following Tacit Innovations’ demand for payment in writing.
Effect of Expiration or Termination. Upon termination of this Agreement for any reason whatsoever:
- the Client shall pay to Tacit Innovations all amounts owing to Tacit Innovations up to and including the date of termination of this Agreement; and
- all obligations under this Agreement that are intended to survive the termination of this Agreement shall survive and continue in full force and effect for the period intended.
Relationship. The relationship between the Client and Tacit Innovations will at all times be one of independent contract and nothing herein shall be construed as implying an employment, partnership or joint venture relationship.
Assignment. This Agreement may not be assigned by the Client. Any attempt by the Client to assign this Agreement or any of the rights, duties or obligations pursuant to this Agreement, is void and of no effect.
Force Majeure. Tacit Innovations shall not be responsible to the Client for any failure to perform or delay in performance under this Agreement if such failure or delay is due to any strike, lockout, riot, civil commotion, sabotage, embargo, war or act of God or other cause beyond its reasonable control.
Notice. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be in writing, shall be addressed to the relevant party at the address set out above for such party, and shall be given by prepaid mail or courier, by hand‑delivery or by facsimile or electronic communication with proof of transmission. Any such notice or other communication shall be deemed to have been received at the time it is delivered to the applicable address set out herein for such party to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address shall also be governed by this section. In the event of a general discontinuance of postal service due to strike, lock‑out or otherwise, notices or other communications shall not be delivered by mail
The inclusion in this Agreement of headings and subheadings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
Gender and Number. In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
The parties agree that there shall be no presumption nor rule of construction applied that this Agreement is to be construed more strictly against the party who itself or through its agent prepared the same. The parties hereby agree that each has had an opportunity to participate in the preparation hereof and this Agreement shall be interpreted and applied accordingly.
Currency. In this Agreement, all amounts are stated and payable in Canadian currency.
Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.
Modification and Waiver. This Agreement may not be modified unless agreed to in writing by both the Client and Tacit Innovations. No extension of any time limit granted by a party shall constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by a party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.
Further Assurances. Each of the parties to this Agreement agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to the provisions of this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.
Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Each party hereby submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.
This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.
Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.