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Chef's Agreement

NebleeChef (USA) Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY CLICKING "AGREE" BELOW, CHEF AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALFOF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THATTHEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TOTHESE TERMS, IN WHICH CASE THE TERM "CHEF" SHALL REFERTO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THISAGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESETERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENTAND MAY NOT USE THE SERVICES.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOWCLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED.INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

Last updated: January 1, 2021

1. INCORPORATION

These Neblee Chef Terms and Conditions ("Terms")are expressly incorporated as a clickable Form into Neblee Chef App (the Form and these Terms, collectively, “Agreement”)between you (“you” or “Chef”)and InfiSolv Inc. (“InfiSolv” or“Company,” which is an owner and publisher Neblee Chef App.This Agreement shall govern the provision of Neblee Services (asdefined below) in the United States and its territories.

2. SERVICES

2.1 Items and Services

InfiSolv and its affiliates make available certain proprietarytechnology services that facilitate the marketing, sale andfulfillment of orders for culinery preparations (meals, dishes, beverages and other products,"Items") from Chef toCustomers (as defined below), including on-demand lead generation,payment processing, marketing, advertising and promotional services,proprietary information services, onboarding, operational and othersupport services (“Neblee Services”).

2.2 Chef Technology

In connection with the Neblee Services, InfiSolv and its affiliatesmay also make available to Chef a website, mobile application orother technology interface for Chef to access and use the NebleeServices (collectively, the "InfiSolv Tools"),which may include InfiSolv’s and its affiliates’ proprietarytechnology platform, through whichinsights and analytics regarding Chef’s performance and historyusing the Neblee Services are provided, and InfiSolv and its affiliates’proprietary technology platform built into Neblee Chef App,through which Chef may, among other things, receive, accept andfulfill requests for Items from Customers.

2.3 Neblee App

InfiSolv and its affiliates may also make available to Customersits proprietary technology that enables Customers to purchase Itemsfrom Chef and communicate to Chef about such purchase ("NebleeApp"). Logistics of delivery or pick up of Items is Chef's responsibility. At the minimum, Chef must provide a location where Customer can pick up ordered Items.

3. INFISOLV OBLIGATIONS

3.1 Neblee Services

Subject to the terms and conditions of this Agreement, InfiSolv andits affiliates will make available the applicable Neblee Services toChef, solely for use by Chef at locations that are owned andoperated by Chef (each, a "Location"),as set forth in the Neblee Chef App. In connection with the provision of Neblee Services toChef, InfiSolv and its affiliates, on behalf of Chef, mayrespond to complaints by Chef’s customers (“Customers”)about Items sold by Chef via the Neblee App. In addition, InfiSolvmay make available certain InfiSolv Tools to Chef, and Chef mayaccess and use those InfiSolv Tools solely in connection with Chef’suse of the Neblee Services. For the avoidance of doubt, as betweenChef and InfiSolv, InfiSolv will retain sole and absolute controlover the Neblee Chef App and Neblee App (and all elements of the user experience and userinterface relating to both apps), including with respect to: (i)the personalization of the Neblee App for Customers; (ii) theprioritization and display of options available to Customers; (iii)the search functionality and results provided to Customers; (iv) theorder fees charged to Customers; and (v) adding, removing or otherwise modifyingany feature or functionality made available through the Neblee App tooptimize reliability or efficiency on the Neblee App.

3.2 Technology Services, Not Culinery or Delivery Services

For the sake of clarity, neither InfiSolv nor its affiliatesprovide any culinery or delivery services. Rather, InfiSolv provides technologyservices that enable Chef to connect with Customers whomay purchase Items from Chef, to be delivered by Chef or picked up by Customer.

4. CHEF OBLIGATIONS

4.1 Availability of Items

Chef will make Items available for purchase through the Neblee ChefApp as per the schedule set by Chef in the app. Chef, when making changes toschedule set in the app, must honor purchase made by Customer prior to the change.Chef will prepare, handle and store all Items in accordance with applicable laws andregulations, including without limitation all laws, rules andregulations governing time or temperature controls required for foodsafety ("Food Safety Standards").Chef will determine any quality, portion, size, ingredient orother criteria that apply to Items (“Criteria”)and Chef is responsible for ensuring that all Items meet theapplicable Criteria. If Chef fails to prepare Items in accordancewith Food Safety Standards or if any Item fails to meet the Criteria(each, a “Substandard Item”), InfiSolvmay, in its sole discretion, remove such Item from the Neblee App.Items that contain (or may contain) an endangered species may not bemade available for purchase through, and will be removed from, theNeblee App. Chef represents and warrants that all nutritionalinformation for Items, including calorie count or allergeninformation, that is made available through the Neblee App is, and atall times will remain, accurate. In addition, Chef will ensurethat the contents of its menu (including any notifications aboutingredients, nutritional information, allergen information, etc.) areaccurate and comply with all applicable laws and regulations.

4.2 Item Responsibility

Chef acknowledges and agrees that InfiSolv does not take title to any Item at any time.Notwithstanding, Chef shall be responsible for any reimbursementcosts related to Customer refunds for Substandard Items or otherrelated issues within Chef’s control (including any costsassociated with retrieving any such Substandard Items or otherwiseunsatisfactory Item(s), if applicable)), including by way of example,missing or incomplete Items, Items not cooked thoroughly, and Itemsnot prepared in accordance with Chef’s internal standards.InfiSolv may, in its sole discretion, deduct reimbursement costs fromthe payment InfiSolv remits to Chef in accordance with thisSection 4. To the extent required by applicable law, and only for thepurpose of the expedited provision of Items, Items are sold toCustomers under Chef’s retail and food delivery licenseprivileges.

4.3 Restrictions

In connection with the access to and use of the Neblee Services andInfiSolv Tools, Chef will not (and will not allow any third partyto): (i) reverse engineer or attempt to discover any source code orunderlying ideas or algorithms used to provide the Neblee Services(except to the extent applicable law prohibits reverse engineeringrestrictions); (ii) provide, lease, lend, disclose, or otherwise useor allow others to use, in each case, for the direct benefit of anythird party, the InfiSolv Tools or Neblee Services (except as otherwiseauthorized by InfiSolv); or (iii) possess or use, or allow thetransfer, transmission, export, or re-export of any software orportion thereof in violation of any export control laws orregulations administered by the U.S. Commerce Department, U.S.Treasury Department's Office of Foreign Assets Control, or any othergovernment agency. Chef will not (and will not allow any thirdparty to) use the Neblee Services or any other transactional,operational, performance or other data or information that is relatedto the sale of Items to Customers through the Neblee App to directly orindirectly compete with InfiSolv or its affiliates or the NebleeServices. The following restricted Items may not be featured orsold via the Neblee App: people or animals of any size, illegal items,alcohol, fragile items, dangerous items (like weapons, explosives,flammables, etc.), stolen goods, Items containing endangered speciesor any items that Chef does not have permission to send.

5. FEES AND TAXES

5.1 Fees; Calculation

For Items sold by Chef via the Neblee App, InfiSolvwill remit to Chef the total Retail Price collected for all ItemsChef sells via the Neblee App (including any Sales Tax and otherfees collected on its behalf) less: (a) the sales tax collected;(b) the applicable retained Fee; and (c) any refunds given to Customers (such final remitted amountbeing “Item Revenue”). All Item Revenuethat is duly owed to Chef will be remitted within fourteen (14)business days of the sale of the Item. Subject to the foregoing,InfiSolv will typically make such payment on a weekly basis.

All Fees under this Agreement will be paid in U.S. Dollars.InfiSolv or its affiliates will deduct the Fee from the paymentInfiSolv collects on Chef’s behalf, as detailed in Section 5.3below. InfiSolv reserves the right to suspend Chef’s ability tomake Items available for purchase by Customers through the Neblee Appif Chef’s account is in arrears. If you are paid for an Item,you are responsible for the Fee even if a Delivery Partner is unableto complete the delivery of such Item. Except as may be expresslyagreed in this Agreement, each party will be responsible for itsexpenses and costs during its performance under this Agreement.

5.2 Retail Prices

Chef is responsible for determining and setting the retailprice for each Item to be made available for sale via the Neblee App("Retail Price"). The Retail Price for each Item excludes Sales Tax or anyother fees.

5.3 Sales Tax

Neblee App will determine all applicable Sales Tax for Item soldand collect the same from Customer.InfiSolv will remit collected sales tax to the appropriate state.The term “Sales Tax” includes any sales, sellersuse, transaction privilege, privilege, general excise, grossreceipts, Item taxes and similar transaction taxes.Chef expressly authorizes InfiSolv tomake determination, collection and remittance of sale tax on its behalf.

5.3 Appointment of Limited Payment Collection Agent

Chef is solely responsible for providing InfiSolv with, andmaintaining, accurate bank account information. Chef herebyappoints InfiSolv and its affiliates, as the case may be, asChef’s limited payment collection agent solely for the purposeof: (i) accepting payment of the Retail Price of Items sold byChef via the Neblee App plus any applicable Sales Tax and otherfees collected on Chef’s behalf, via the payment processingfunctionality facilitated by the InfiSolv Tools, (ii) adjusting Sales Taxand other fees charged if determined by InfiSolv to be necessary inaccordance with state and local compliance obligations of Chefs,and (iii) remitting the Item Revenue. Notwithstanding the foregoing,in Marketplace Facilitator Jurisdictions, InfiSolv may collect andremit Sales Tax directly to the relevant taxing authority inaccordance with applicable law. Further, Chef agrees that paymentcollected on its behalf by InfiSolv or its affiliates will beconsidered the same as payment made directly to Chef. Chefagrees that if Chef does not receive payment from InfiSolv or itsaffiliates, Chef’s only recourse will be against InfiSolv andits affiliates. InfiSolv and its affiliates may, from time to time,request information from Chef to confirm Chef’s identity asmay be necessary under any applicable compliance obligations beforeremitting any amounts to Chef and may refuse to process amountsowed to Chef if there exists a legal or regulatory risk orpotential breach of law or regulation associated with such remittanceto Chef. Chef agrees that InfiSolv and its affiliates maydescribe or otherwise reflect the terms of this Section, and anyrelated portions of the applicable Order Form or the Agreement, inany terms of use, receipts, disclosures, or notices that may bedeemed necessary or prudent. If reasonable, InfiSolv may adjust theremittance of Item Revenue collected on Chef’s behalf forreasons including failure to fulfill an Item as ordered or making acorrection on an Item. Chef may identify any disagreements inconnection with such adjustments through the InfiSolv Tools. InfiSolv andits affiliates reserve the right to collect any amounts in connectionwith such adjustments via a deduction from the remittance of ItemRevenue collected on Chef’s behalf, by debiting the paymentmethod or Chef’s bank account on record, or otherwise seekingreimbursement from Chef by any lawful collection methodsavailable. Chef authorizes InfiSolv and its affiliates to use anyor all of the above methods to seek such adjustments andreimbursements. In more serious situations, such as fraud (includingany charges for Items that Customers did not place) or Customercomplaints, InfiSolv and its affiliates reserve the right to cancel apayment entirely. By agreeing to these terms, Chef gives InfiSolvand its affiliates express consent to adjust payments collected onChef’s behalf as set forth in this Section.

6. REPORTING

InfiSolv will provide reasonable information regarding any refunds given to Customers,including the date of the transaction, the Item ordered, the reasonfor the refund and any other information InfiSolv is permitted toprovide under applicable privacy laws and terms with Customers. Tothe extent applicable, Chef agrees that InfiSolv may shareChef’s transactional data regarding ordered meals, includingsales data, with Chef’s parent company.

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES

7.1 Marks

Subject to this Agreement, each party hereby grants to the otherparty (and, in the case of InfiSolv, to its affiliates) a limited,non-exclusive and non-transferable license during the Term to usesuch party’s respective Marks in the territory, on a royalty-freebasis, in connection with the activities related to this Agreement orany other activities relating to the Neblee Services. For purposes ofthis Agreement, the term "Marks"will mean the trademarks, service marks, trade names, copyrights,logos, slogans, content, media, materials, identifying symbols andindicia of the applicable party. All uses of a party’s Marks by theother party will be in the form and format specified or approved bythe owner of such marks. Other than as specifically set forth in thisAgreement, neither party will use the other party’s Marks withoutthe prior, express, written consent of the other party (by email issufficient). For the avoidance of doubt, however, any use or displayof Chef’s Marks by InfiSolv or its affiliates in connection withmaking Items available through the Neblee App in the ordinary course ofbusiness will not require any such prior, express, written consent.Chef further agrees that any use or display of InfiSolv’s Markswill conform to the current version of Brand Guidelines of Neblee,which can be found at: https://www.neblee.com/logo/. All goodwill related to the use of a party’s Marks by the otherparty will inure to the benefit of the owner of such Marks. Except asexpressly set forth herein, neither party will be deemed to grant theother party any license or rights under any intellectual property orother proprietary rights. All rights not granted are expresslyreserved. Without limiting anything in the Agreement, Chefrepresents and warrants that Chef’s Marks do not infringe,misappropriate, or otherwise violate any third party’s intellectualproperty or other proprietary rights. Chef agrees that InfiSolv orits affiliates may remove Chef’s Marks from the Neblee App ifInfiSolv or its affiliates receive notice or otherwise reasonablybelieve that such Chef’s Marks may infringe, misappropriate, orotherwise violate any intellectual property or other proprietaryrights.

7.2 Marketing

InfiSolv and its affiliates may showcase the availability ofChef’s Items via the Neblee App through various promotionalactivities (e.g., through social media channels, websites,advertisements, or blogs). InfiSolv (or a party designated by InfiSolvacting on InfiSolv’s behalf) may take video and still images formarketing and other efforts related to the Neblee App or Neblee Chef App ("NebleePhotographs"). Chef agrees that NebleePhotographs (including all intellectual property rights therein) areand will remain the sole and exclusive property of InfiSolv or itsaffiliates. Additionally, Chef may provide videos, still image orother materials to InfiSolv or its affiliates (“ChefMarketing Materials”) for use in connection with thedisplay of Chef’s Items on the Neblee App or the marketing andpromotion of Neblee and the availability of your Items via theNeblee App. Chef hereby grants InfiSolv and its affiliates anon-exclusive, perpetual, fully paid-up and royalty free license touse and display such Chef Marketing Materials in connection withChef’s Items and other promotional activities relating to theNeblee Services. Without limiting anything in the Agreement, Chefrepresents and warrants that the Chef Marketing Materials do notinfringe, misappropriate, or otherwise violate any third party’sintellectual property or other proprietary rights. To the extent thatthe Chef Marketing Materials contain any third party materials,Chef is solely responsible for and will secure any and allrights, licenses, consents and permissions necessary for InfiSolv tobe able to use the Chef Marketing Materials in accordance withthis Section. Chef agrees that InfiSolv or its affiliates mayremove Chef Marketing Materials from the Neblee App if InfiSolv orits affiliates receive notice or otherwise reasonably believe thatsuch Chef Marketing Materials may infringe, misappropriate, orotherwise violate any intellectual property or other proprietaryrights.

7.3 Publicity

Except as may be expressly set forth in this Agreement orotherwise agreed by the parties in writing, neither party may issue apress release or otherwise refer to the other party in any mannerwith respect to this Agreement or otherwise, without the priorwritten consent of such other party.

8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK

8.1 Definition

"Proprietary Information"means any confidential, proprietary or other non-public informationdisclosed by or on behalf of one party (“Discloser”)to the other (“Recipient”), whetherdisclosed verbally, in writing, or by inspection of tangible objects,and includes transactional, operational, performance and other dataor information that is related to the sale of Chef’s Items toCustomers through the Neblee App and the terms and conditions of thisAgreement. Proprietary Information will not include information that:(i) was previously known to the Recipient without an obligation ofconfidentiality; (ii) was acquired by the Recipient without anyobligation of confidentiality from a third party with the right tomake such disclosure; or (iii) is or becomes publicly availablethrough no fault of the Recipient. Each Recipient agrees that it willnot disclose to any third parties other than Representatives, or usein any way other than as necessary to perform this Agreement, theDiscloser’s Proprietary Information. Each Recipient will ensurethat Proprietary Information will only be made available toRecipient’s affiliates and Recipient’s and Recipient’saffiliates officers, directors, employees and agents who have a needto know such Proprietary Information and who, prior to any disclosureof such Proprietary Information, are bound by written obligations ofconfidentiality with respect to such Proprietary Information that areno less stringent than those set forth in this Agreement (each, a“Representative”). Recipient will causeits Representatives to comply with the terms of this Agreement andwill be solely responsible for any breach of this Agreement by any ofits Representatives. Each Recipient will not, and will not authorizeothers to, remove or deface any notice of copyright, trademark, logo,legend, or other notices of ownership from any originals or copies ofthe Discloser’s Proprietary Information. The foregoing prohibitionon use and disclosure of Proprietary Information will not apply tothe extent: (i) the Discloser has authorized such use or disclosure(and Chef hereby authorizes InfiSolv and its Affiliates todisclose the terms of this Agreement to Chef’s franchiseesand/or franchisor as applicable in connection with executingcontracts that reference this Agreement) and (ii) a Recipient isrequired to disclose certain Proprietary Information of the Discloseras a matter of law or by order of a court, provided that theRecipient gives the Discloser prior written notice of such obligationto disclose and reasonably assist in obtaining a protective orderprior to making such disclosure. Upon expiration or termination ofthis Agreement and as requested by Discloser, each Recipient willdeliver to the Discloser (or destroy at the Discloser’s election)any and all materials or documents containing the Discloser’sProprietary Information, together with all copies thereof in whateverform.

8.2 Privacy

Chef agrees to use, disclose, store, retain or otherwiseprocess Personal Data solely for the purpose of providing Items underthis Agreement. Chef will maintain the accuracy and integrity ofany Personal Data provided by InfiSolv and in Chef’s possession,custody or control. Chef agrees to retain Personal Data providedto Chef by InfiSolv solely by using the software and toolsprovided by InfiSolv. "Personal Data"means any information obtained in connection with this Agreement (i)relating to an identified or identifiable natural person; (ii) thatcan reasonably be used to identify or authenticate an individual,including name, contact information, precise location information,persistent identifiers, and (iii) any information that may otherwisebe considered “personal data” or“personal information” under theapplicable law.

8.3 Passwords

Chef is responsible for maintaining the integrity ofinformation related to Chef’s access and use of the InfiSolv Toolsand related Neblee Services, including any password, login or keyinformation. Chef represents and warrants that Chef will notshare such information with any third party.

8.4 Data Re-Identification Restriction

Without limiting any other provision of this Agreement, includingany provision in this Section 8, Chef will not merge any of thedata collected or otherwise obtained in connection with thisAgreement, including any Personal Data, with other data collectedfrom any source or otherwise use any of the data collected orotherwise obtained in connection with this Agreement, including anyPersonal Data, for the purpose of re-identification, targetedmarketing, or any other similar purpose.

8.5 Feedback

Chef may, but is not obligated to, provide or otherwise makeavailable to InfiSolv or its affiliates certain feedback, suggestions,comments, ideas, or other concepts relating to InfiSolv’s and itsaffiliate’s products and services ("Feedback").However, to the extent that Chef provides or otherwise makesavailable Feedback to InfiSolv or its affiliates, Chef herebygrants to InfiSolv and its affiliates a perpetual, irrevocable,worldwide, royalty free, fully sublicensable right to use andotherwise exploit such Feedback.

9. RATINGS

Chef acknowledges and agrees that, after receiving Item(s), aCustomer may be prompted by the Neblee App to provide a rating of suchItem(s) and, at such Customer’s option, to provide comments orfeedback related to the Customer’s experience with Chef and therelevant Item(s) on the Neblee App ("CustomerFeedback"). InfiSolv and its affiliates reserve theright to use, share, and display Customer Feedback in any manner inconnection with the business of InfiSolv and its affiliates withoutattribution to or approval of Chef. Chef acknowledges thatInfiSolv and its affiliates are distributors (without any obligationto verify) and not publishers of Customer Feedback, provided thatInfiSolv and its affiliates reserve the right to edit or removecomments in the event that such comments include obscenities or otherobjectionable content, include an individual’s name or otherPersonal Data, violate any privacy or other applicable laws, orInfiSolv’s or its affiliates’ content policies.

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

10.1 Representations and Warranties

Each party hereby represents and warrants that: (i) it has fullpower and authority to enter into this Agreement and perform itsobligations hereunder; (ii) it is duly organized, validly existingand in good standing under the laws of the jurisdiction of itsorigin; (iii) it has not entered into, and during the Term will notenter into, any agreement that would prevent it from complying withor performing under this Agreement; (iv) it will comply with allapplicable laws and regulations in the performance of this Agreementand any activities hereunder (including all applicable consumerprotection, data protection and privacy laws and, in the case ofChef, all applicable Food Safety Standards); and (v) the Marksused or provided by one party to the other pursuant to this Agreementshall not infringe or otherwise violate the intellectual propertyrights, rights of publicity, or other proprietary rights of any thirdparty. In addition, Chef further represents and warrants that tothe extent Chef has franchisees who participate in any activitiesunder this Agreement, Chef will ensure that such franchisees willcomply with, and be subject to, the applicable provisions of thisAgreement when participating in such activities.

10.2 DISCLAIMER

EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS,AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDINGANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING ORCOURSE OF PERFORMANCE.

11. INDEMNITY

11.1 Indemnified Claims

You ("Indemnifying Party")will indemnify, defend and hold harmless InfiSolv, its affiliates andrespective directors, officers, employees and agents (the“Indemnified Party”) from and againstany and all claims, damages, liabilities, causes of action, andlosses (including reasonable attorney’s fees) (collectively,“Losses”) with respect to any thirdparty claim arising out of or related to: (i) the negligence orwillful misconduct of the Indemnifying Party or its employees oragents in their performance of this Agreement; (ii) any claims that,if true, would be a breach of any of the Indemnifying Party’srepresentations, warranties or covenants in this Agreement; or (iii)any claims that the Marks provided by the Indemnifying Partyinfringea third party’s intellectual property rights, to the extent theIndemnified Party used such Marks in accordance with the mannerapproved by the Indemnifying Party. In addition, you will indemnify,defend and hold harmless the InfiSolv Indemnified Parties from andagainst any and all Losses with respect to any third party claimarising out of or related to: (A) Chef’s violation or allegedviolation of any applicable retail food or other health and safetycode, rule or regulation; (B) Chef’s failure to determine theapplicable Sales Tax and other fees charged, except to the extentrelating to sales in Marketplace Facilitator Jurisdictions; (C)Chef’s failure to apply correct sales tax rates, includingthose rates adjusted by InfiSolv on Chefs behalf, except to theextent relating to sales in Marketplace Facilitator Jurisdictions;(D) Chef’s failure to provide accurate descriptions of Items inMarketplace Facilitator Jurisdictions; or (E) Sales Tax, other fees,penalties, interest and other costs related to Chefs obligations,except in the case of each of (A)-(E) above, to the extent such harmwas directly caused by the gross negligence or willful misconduct ofInfiSolv or its employees, agents or Delivery Partners.

11.2 Procedure

We will provide you prompt written notice of any potential claimsubject to indemnification hereunder. You will assume the defense ofthe claim through counsel you designate, however, such counsel mustbe reasonably acceptable to the Indemnified Party. You will notsettle or compromise any claim, or consent to the entry of anyjudgment, without written consent of the Indemnified Party, whichwill not be unreasonably withheld. The Indemnified Party willreasonably cooperate with the Indemnifying Party in the defense of aclaim, at Indemnifying Party’s expense.

12. LIMITS OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE,WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OFCONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BELIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL,EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESSPROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF CHEF OR ANY THIRDPARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OFANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY,EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACHAND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THEFOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGESWILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHERREMEDIES.

13. TERM AND TERMINATION

This Agreement will commence on the Effective Date (date of acceptance of this agreement by clicking on "AGREE" ) and, unless earlier terminated as provided below, will continue for a period ofone (1) year from the Effective Date ("InitialTerm") and will automatically renew for successiveone (1) year periods (each, a “Renewal Term”and together with the Initial Term, the “Term”).Either party may terminate this Agreement, in whole or in part (i.e.,with respect to any Sales Channel), in the event of a material breachby the other party with two (2) days’ prior written notice thereofby the non-breaching party. Either party may terminate thisAgreement, in whole or in part (i.e., with respect to any SalesChannel), at any time without cause by giving seven (7) days’ priorwritten notice of termination to the other party. Chef may terminate this Agreement usingNeblee Chef App as well. Notwithstanding theforegoing, the termination of this Agreement will not relieve eitherparty of its obligations to fulfill any promotional offer that hasbeen redeemed by Customers in accordance with its terms. In addition,InfiSolv may suspend or otherwise terminate this Agreement on writtennotice in the event of a Brand Matter. A “Brand Matter”means an event involving Chef that, in InfiSolv’s reasonablejudgment, causes it or its affiliates to have significant concern forthe reputation of its respective Marks or brand, including mattersrelated to the alleged violation of any applicable retail food orother health or safety code. All payment obligations and Sections 1,3.3, 7.1, 8-13, this last sentence of 13, 14-15 and 17 will survivethe expiration or termination of this Agreement.

14. NOTICE

Any and all notices permitted or required to be given hereunderwill be sent to the address listed below, or such other address asmay be provided, and deemed duly given: (a) upon actual delivery, ifdelivery is by hand; or (b) one (1) day after being sent by overnightcourier, charges prepaid; or (c) by electronic mail to the designatedrecipient. Notices to InfiSolv should be provided to InfiSolv, Inc,Attn: Legal, 1159 Sonora Court #339, Sunnyvale, CA 94086. Notices toChef should be provided to the address provided by Chef using Neblee Chef App.

15. DISPUTE RESOLUTION AND ARBITRATION

15.1 Arbitration

Any dispute, whether contractual or otherwise, arising out of orin connection with this Agreement or these dispute resolutionprocedures, including any question regarding its existence,performance, validity, or termination, will be referred to andfinally resolved by arbitration administered by JAMS in accordancewith its Comprehensive Arbitration Rules and Procedures (the "JAMSRules"), which are deemed to be incorporated byreference into this clause. The parties agree that the arbitrator(“Arbitrator”), and not any federal,state, or local court or agency, shall have exclusive authority toresolve any disputes relating to the interpretation, applicability,enforceability or formation of this Agreement, including any claimthat all or any part of this Agreement is void or voidable. TheArbitrator shall also be responsible for determining all thresholdarbitrability issues, including issues relating to whether thisAgreement is unconscionable or illusory and any defense toarbitration, including waiver, delay, laches, or estoppel. In theevent of a dispute, controversy or claim arising out of or relatingin any way to this Agreement, the complaining party shall notify theother party in writing thereof. Within thirty (30) days of suchnotice, representatives of both parties shall attempt to resolve thedispute in good faith. Should the dispute not be resolved withinthirty (30) days after such notice, the complaining party shall seekremedies exclusively through arbitration. Furthermore, the partiesagree:

i) A party who desires to initiate arbitration must provide theother party with a written Demand for Arbitration as specified in theJAMS Rules.

ii) The seat, or legal place, of arbitration will be Sunnyvale, California, USA or the JAMS location closest to the complaining party’s place of business.

iii) The language to be used in the arbitral proceedings will beEnglish.

iv) The arbitral tribunal will be composed of a sole arbitrator,which shall be nominated and appointed by JAMS in accordance with theJAMS Rules.

v) To the extent permitted by applicable law, the parties agree tokeep all materials related to the dispute, including the existence ofthe dispute itself, content of the arbitration, and all thesubmissions by the parties in the arbitration and awards rendered bythe arbitral tribunal, confidential.

vi) This agreement to arbitrate will not preclude the parties fromseeking provisional remedies from a court of competent jurisdiction.The parties each retain the right to seek injunctive or otherequitable relief in a court of competent jurisdiction to prevent theactual or threatened infringement, misappropriation or violation of aparty’s copyrights, trademarks, trade secrets, patents or otherintellectual property rights.

vii) Neither party may bring any class, collective, orrepresentative action against the other party, and will preclude aparty from participating in or recovering relief under any current orfuture class, collective, consolidated, or representative actionbrought against the other party by someone else.

viii) Each party shall pay its own proportionate share ofArbitrator fees and expenses plus and expenses of JAMS. TheArbitrator shall be entitled to award the foregoing arbitration andadministrative fees and expenses as damages in his/her discretion.

ix) Notwithstanding any choice of law or other provision in thisAgreement, the parties agree and acknowledge that this Agreementevidences a transaction involving interstate commerce and that theFederal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"),will govern its interpretation and enforcement and proceedingspursuant thereto. It is the intent of the parties that the FAA andJAMS Rules shall preempt all state laws to the fullest extentpermitted by law. If the FAA and JAMS Rules are found to not apply toany issue that arises under this Agreement or the enforcementthereof, then that issue shall be resolved under the laws of thestate of California.

x) The Arbitrator’s award will be final and binding and judgmenton the award rendered by the Arbitrator may be entered in any courthaving jurisdiction thereof, provided that any award may be confirmedin a court of competent jurisdiction.

15.2 Waiver of Jury Trial

Each party hereby waives to the fullest extent permitted byapplicable law, any right it may have to a trial by jury of anyarbitrable claim under this Agreement and in connection with theenforcement of an arbitral award rendered pursuant to this agreement.Each party (i) certifies that no representatives, agent or attorneyof any other party has represented, expressly or otherwise, that suchother party would not, in the event of such litigation, seek toenforce the foregoing waiver and (ii) acknowledges that it and theother party hereto have been induced to enter into this Agreement.

16. DIVERSITY AND INCLUSION

Chef will not, in its use of the Neblee Services or the InfiSolvTools under this Agreement, discriminate against any customer,employee, contractor or other person or individual on the basis ofrace, color, gender, pregnancy, marital status, familial status,sexual orientation, gender identity or expression, religion,ancestry, national origin, disability, or age except that programsmay target beneficial services for specific participant groups, asagreed upon between InfiSolv and Chef. Chef acknowledges andagrees that upon InfiSolv’s receipt of evidence of Chef’sdiscrimination under any of these categories, InfiSolv will have theright to immediately terminate this Agreement following notice toChef.

17. GENERAL

The territory of this Agreement is the United States("Territory"), and all paymentsissued under this Agreement must be in U.S. dollars. Chef agreesto receive calls, SMS messages and other communications, includingthose made available by autodialer, sent by or on behalf of InfiSolvor its affiliates. In this Agreement,“**including”means “including, without limitation,”and examples are illustrative and not the sole examples of aparticular concept. The failure of either party to enforce, at anytime or for any period of time, the provisions hereof, or the failureof either party to exercise any option herein, will not be construedas a waiver of such provision or option and will in no way affectthat party’s right to enforce such provisions or exercise suchoption. Unless otherwise agreed to by the parties, any modificationor amendment to this Agreement will be effective only if in writingand signed by both parties, provided that, in the event the partiesagree to modifications or amendments designed only to benefitChef as a result of renegotiation, InfiSolv may issue notice of suchmodifications or amendments to Chef as final agreement on suchmodifications or amendments, to expedite necessary changes to InfiSolv’sinternal systems. This Agreement may not be assigned, transferred,delegated or subcontracted, in whole or in part, by a party withoutthe prior written consent of the other party, provided that eachparty may assign this Agreement, upon written notice to the otherparty, (a) to an affiliate of such party, or (b) in connection withthe sale of all or substantially all of such party’s equity,business or assets to which this Agreement relates; provided that inthe event of any such transfer by Chef, Chef explicitlyconsents that any such transferee will have access to and control ofall Chef accounts related to such transfer, including itsaccounts with InfiSolv, access to historical reporting informationabout Items related to such transfer, and other account data relatingto such transfer. In the event of a change of ownership involvingChef’s Location(s), the parties will need to execute a Changeof Ownership form and Chef acknowledges and agrees that theLocation will not be able to accept or process any Customer orders onthe Neblee App until the Change of Ownership is executed. Subject tothe foregoing, this Agreement will be binding upon and will inure tothe benefit of each party hereto and its respective successors andassigns. Any purported assignment, transfer, delegation orsubcontract in violation of this Section will be null and void. Inthe event any provision of this Agreement is determined to be invalidor unenforceable by ruling of an arbitrator or a court of competentjurisdiction, the remainder of this Agreement (and each of theremaining terms and conditions contained herein) will remain in fullforce and effect. Any delay in or failure by either party in theperformance of this Agreement will be excused if and to the extentsuch delay or failure is caused by occurrences beyond the control ofthe affected party including decrees or restraints of Government,acts of God, strikes, work stoppage or other labor disturbances, waror sabotage (each being a “Force Majeure Event**”).The affected party will promptly notify the other party upon becomingaware that any Force Majeure has occurred or is likely to occur andwill use commercially reasonable efforts to minimize any resultingdelay in or interference with the performance of its obligationsunder this Agreement. Nothing in this Agreement will be deemed tocreate any joint venture, joint enterprise, or agency relationshipamong the parties (except as otherwise expressly set forth above),and no party will have the right to enter into contracts on behalfof, to legally bind, to incur debt on behalf of, or to otherwiseincur any liability or obligation on behalf of, the other partyhereto, in the absence of a separate writing, executed by anauthorized representative of the other party. Each party will besolely responsible for its employees and contractors used inconnection with such party’s performance obligations under thisAgreement. This Agreement contains the full and completeunderstanding and agreement between the parties relating to thesubject matter hereof and supersedes all prior and contemporaryunderstandings and agreements, whether oral or written, relating suchsubject matter hereof. This Agreement may be executed in one or morecounterparts and by exchange of electronically signed counterpartstransmitted by pdf format, each of which will be deemed an originaland all of which, when taken together, will constitute one and thesame original instrument.

 

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