Revenue Recapture - Terms & Conditions

  1. VDC Tech Platform and Services

    1. General. VDC Tech provides a SaaS-based platform for purposes of providing data and reporting solutions, kitchen management solutions, subscription services, and service modules, including all related documentation, software, and intellectual property related thereto (collectively, the “VDC Platform”), for access, use, and license by Customer as more fully described in this Agreement.
    2. License Grant to Customer. Subject to the terms and conditions of this Agreement, VDC Tech will use commercially reasonable efforts to make the VDC Platform available to Customer pursuant to this Agreement, and grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services and Platform in accordance with the usage terms set forth in this Agreement and any applicable Order Form. VDC Tech may, from time to time, modify or improve the VDC Platform or add new features or functionality to the VDC Platform, or suspend Services and access to the VDC Platform if reasonably necessary for an emergency situation or to stop potential harm, loss or damage.
    3. Customer Accounts. As part of the registration process for the VDC Platform, each Customer will be required to identify an administrative username and password for Customer's account. VDC Tech reserves the right to refuse registration of, revoke, suspend or cancel Customer accounts without advance notice for any lawful reason.
    4. VDC Tech Access. Customer shall provide VDC Tech access to Customer's accounts (including account login information and separate user profiles, as needed) with certain third party delivery service providers, point of sale vendors, online ordering platforms, aggregators, and other third party vendors or service providers (collectively, the “Third Party Providers”) required for VDC Tech to perform the Services and Customer to use the VDC Platform. If VDC Tech is providing Customer with “Revenue Recapture Services” as identified on the applicable Order Form, Customer shall also appoint VDC Tech as its agent for the limited purpose of performing the Revenue Recapture Services, including initiating and facilitating certain dispute services for cancelled or refunded orders on behalf of Customer or a Customer brand with the applicable third-party delivery service provider (e.g., Grubhub, Doordash, or Uber Eats) in Customer's name.

      VDC Tech cannot guarantee that the VDC Platform will support the integration with any Third Party Provider or with any particular third party providers in the future, and VDC Tech may remove or alter an integration with a Third Party Provider at any time, with or without notice to Customer. VDC Tech shall not be liable to Customer for any costs, expenses, or losses arising from the inability to integrate with any Third Party Provider, or the removal of a previously-integrated Third Party Provider, in connection with the VDC Platform, performance of the Services, or otherwise.

    5. Customer Restrictions and Responsibilities. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the VDC Platform or Services or any software, documentation or data related thereto; modify, translate, or create derivative works based on the VDC Platform or Services; use the VDC Platform or Services for the benefit of a third party; remove any proprietary notices or labels or engage in any misleading or deceptive comparisons involving the VDC Platform or other products or services; or otherwise use the VDC Platform (i) to engage in any illegal activity, (ii) to infringe or violate any third party rights, or (iii) outside the scope expressly permitted hereunder and in the applicable Order Form.

      Customer will (a) be responsible for all use of the VDC Platform under its account, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the VDC Platform and promptly notify VDC Tech of any such unauthorized access or use, and (c) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the VDC Platform. Customer will be solely responsible for its failure to maintain such equipment, software and services, and VDC Tech will have no liability for such failure.

  2. Confidentiality; Proprietary Rights

    1. Confidentiality. Each party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. As used herein, “Confidential Information” shall mean any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, Confidential Information will not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without the use of or reference to the disclosing party's Confidential Information.
    2. Customer's Ownership Rights. Customer shall own all right, title and interest in and to the non-public data concerning Customer, Customer's end users, and Customer's Third Party Providers generated during Customer's use of the VDC Platform or inputted by Customer into the VDC Platform (collectively, the “Customer Data”), as well as any data that is based on or derived from the Customer Data, except as set forth herein. Customer shall be responsible for obtaining any necessary consents or permissions for any collection or use of the Customer Data by VDC Tech under this Agreement. Customer hereby irrevocably grants all such rights and permissions in or relating to the Customer Data to VDC Tech, its subcontractors and personnel as are necessary or useful to perform VDC Tech's obligations under this Agreement, or any other agreement between Customer and VDC Tech, and as are necessary or useful to enforce this Agreement and exercise VDC Tech's rights hereunder.
    3. VDC Tech's Ownership Rights. As between the parties, VDC Tech exclusively owns all right, title and interest in and to the VDC Platform. Except for the express rights granted hereunder, VDC Tech reserves all rights, title and interests in and to (a) the VDC Platform and VDC Tech's Confidential Information, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
    4. Feedback. Customer may from time to time provide VDC Tech suggestions or comments for enhancements or improvements, new features or functionality, or other feedback (collectively, “Feedback”) with respect to the VDC Platform. VDC Tech will have full discretion to freely use and exploit such Feedback in connection with its products and services without any obligation to compensate or reimburse Customer.
    5. Aggregate Data. Notwithstanding anything to the contrary, VDC Tech shall have the right to collect and analyze data and other information relating to the VDC Platform and related systems and technologies; or the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Customer Data and data derived therefrom), and VDC Tech will be free (during and after the term hereof) to (a) use such information and data to improve, enhance, diagnose, develop, and enhance the VDC Platform and other services, and (b) disclose such data solely in aggregate or other de-identified form in connection with VDC Tech's business. No rights or licenses are granted except as expressly set forth herein.

  3. Fees and Payment

    Customer hereby agrees to pay VDC Tech the Fees in accordance with this Agreement and any Order Form, as applicable. Subject to the termination rights below, VDC Tech may modify the Fees at any time with at least thirty (30) days' advance notice of any increase. Unpaid amounts are subject to a finance charge of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and related attorneys' fees, and may result in suspension or termination of the Agreement. Customer shall be responsible for all taxes associated with the Services and use of the VDC Platform, other than U.S. taxes based on VDC Tech's net income.

  4. Term

    Unless otherwise stated in an applicable Order Form, the term of this Agreement shall be for one (1) year commencing on the Effective Date, and shall automatically renew for additional one (1) year periods thereafter (collectively, the “Term”) unless either party terminates this agreement in accordance with the termination provision below.

  5. Termination

    1. Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days' prior written notice (or ten (10) days' prior written notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement, and fails to cure such breach within such notice period. Customer shall pay in full for the Services up to and including the last day on which the Services are provided.
    2. Termination for Convenience. Either party may terminate this Agreement at any time upon providing ninety (90) days' prior written notice to the other party.
    3. Suspension or Termination of Customer Services. VDC Tech may suspend, revoke or terminate the Services or Customer's access to the VDC Platform in whole or in part, without terminating this Agreement, in VDC Tech's sole discretion, in the event Customer fails to pay the fees due or otherwise breaches the terms of this Agreement.
    4. Effect of Termination. Upon expiration or earlier termination of this Agreement or any Order Form, Customer shall promptly cease all use of the Services and the VDC Platform, programs and materials and any Confidential Information belonging to VDC Tech, remove such from all computers, networks or other devices, and return to VDC Tech, or certify the destruction of any of the following held in connection with the performance of this Agreement. Upon any termination, VDC Tech will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter VDC Tech may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

  6. Representations and Warranties

    1. Mutual Representations and Warranties. Customer and VDC Tech represent and warrant to each other that: (i) it is an entity duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) it shall comply with all laws applicable to the provision or use the VDC Platform, as applicable; and (iv) this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms.
    2. Additional Representations and Warranties By VDC Tech. VDC Tech represents and warrants that VDC Tech shall: (i) use reasonable efforts consistent with prevailing industry standards to maintain the VDC Platform in a manner which minimizes errors and interruptions in the VDC Platform; and (ii) perform the Services in a professional and workmanlike manner. However, the VDC Platform may be unavailable or interrupted from time to time for any of several reasons, including, but not limited to, the malfunction of equipment, periodic updating, scheduled or unscheduled emergency maintenance either by VDC Tech or by a Third Party Provider, or because of other causes beyond VDC Tech's reasonable control.
    3. Additional Representation and Warranties By Customer. Customer represents and warrants that Customer: (a) has and will obtain all permissions and consents that are necessary in order to use the VDC Platform and allow VDC Tech to perform the Services in accordance with this Agreement and any applicable Order Form; (b) has the right to use, and allow VDC Tech to use, Customer Data and Customer's authorized Third Party Provider accounts; and (c) if applicable (e.g. required by a Third Party Provider), Customer has provided requisite notices, obtained consents and satisfied any other requirements under applicable law and any Third Party Provider agreement, that are necessary for Customer and VDC Tech to access and use the Customer Data as set forth herein.

  7. Disclaimer of Warranty

    VDC TECH DOES NOT WARRANT THAT THE VDC PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE VDC PLATFORM OR SERVICES. THE VDC PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND, TO THE EXTENT ALLOWABLE AT LAW, VDC TECH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  8. Indemnity

    Unless prohibited by applicable law, Customer will indemnify, defend and hold harmless VDC Tech and its affiliates (including their respective officers, directors, employees and agents) against any liabilities, damages, and costs (including reasonable attorneys' fees) from any claim or legal proceeding arising out of or relating to: (a) Customer's breach of the Agreement or any agreement with a Third Party Provider; (b) Customer's use or misuse of the VDC Platform (c) Customer Data or content provided to VDC Tech; or (d) Customer's gross negligence or willful misconduct.

  9. Limitation of Liability

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, VDC TECH AND ITS AFFILIATES (INCLUDING THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF GOOD WILL, LOST PROFITS, LOST SALES, INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (B) ANY MATTER BEYOND VDC TECH‘S REASONABLE CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VDC TECH FOR THE SERVICES AND USE OF THE VDC PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE CLAIM.

  10. Miscellaneous

    1. Unenforceability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    2. Assignment. This Agreement is not assignable, transferable or sublicensable by either party without the other party's prior written consent, except to a parent company or to any direct or indirect wholly owned subsidiary of a parent company, however, no such assignment shall relieve the assigning party of any of its obligations under this Agreement.
    3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and any waivers or modifications of this Agreement must be in a writing signed by both parties.
    4. Relationshiop. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind VDC Tech in any respect whatsoever.
    5. Notices. All notices under this Agreement will be in writing, sent to the Notice Address on the applicable Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the business day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    6. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. Any and all disputes arising from or in connection with this Agreement shall be prosecuted in a court of competent jurisdiction in Orange County, Florida.
    7. Interpretation. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if jointly drafted by the parties and no presumption, inference, or burden of proof shall arise favoring or disfavoring a party by virtue of authorship of any or all of the Agreement provisions. Unless the context of this Agreement clearly requires otherwise: (a) the singular shall include the plural and the plural shall include the singular, (b) the words “includes” or “including” shall mean “including without limitation,” (c) the word “or” is not exclusive and (d) the words “hereof,” “herein,” “hereunder” and similar terms shall refer to this Agreement as a whole and not any particular section or article in which such words appear.
    8. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. The parties shall treat faxed, .pdf, emailed or other electronically signed documents (including documents signed through e-sign service providers such as DocuSign) as originals. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date at such time as all signatories hereto have signed and delivered to the other party a counterpart of this Agreement. 10.9. Confidentiality. Neither party shall disclose (or authorize any third party to disclose) the financial or other material terms of this Agreement or any proprietary information of the other party, with the exception only of disclosure by either party to their respective agents, attorneys, accountants, consultants, representatives or employees on a need to know basis (in which event the respective party shall be liable for any breach of this section by such agent, attorney, accountant, consultant, representative or employee) or except as (a) may be required by law, rules of government agencies or court proceedings; (b) to perform or enforce the terms of this Agreement; (c) if such term(s) are publicly known prior to any confidentiality obligation herein; and/or (d) if such term(s) become publicly known other than by a disclosure from a source who was subject to a confidentiality obligation under this Agreement.
    9. Force Majeure. Whenever a period of time is provided in this Agreement for either party to do or perform any act or thing, except the payment of monies, neither party shall be liable or responsible for any delays due to strikes, lockouts, casualties, acts of nature, war, terrorist acts, governmental regulation or control, pandemic, or other causes beyond the reasonable control of the parties, and in any event said time period for the performance of an obligation hereunder shall be extended for the amount of time of the delay. This clause shall not apply to, and shall not result in an extension of, the Term.
    10. Reimbursement. If either party brings an action to enforce this Agreement, the party prevailing in the proceeding shall be entitled to reimbursement of reasonable costs, expenses, and attorneys' fees, whether incurred during, prior to, in preparation for, or in contemplation of the filing of, the proceeding. In any judicial proceeding, the amount of these costs and expenses shall be determined by the court and not by a jury.
    11. Records and Audit Rights. Each party shall preserve all books, records, accounting records, and documents related to this Agreement, the Services and the Orders (collectively, the “Records”) for at least three (3) years, including after the termination of this Agreement. During such period of time, either party shall make the Records available during normal business hours upon at least five (5) business days of request and permit the other party and/or the other party's authorized representatives to inspect, review, copy, and/or audit the Records for any reasonable reason.