MERCHANT TERMS and CONDITIONS
FOR TOGO TECHNOLOGIES MOBILE APP & ONLINE ORDERING PLATFORM
Last Updated February 4, 2021
I. OVERVIEW. By entering into an Order Form or Statement of Work with Fresh Technology, Inc. (d/b/a ToGoTechnologies), a Delaware corporation (“we” or ToGo”), you (“you” or “Merchant”) agree to be bound by these terms conditions (these “Terms”) which are expressly incorporated into and made a part of the ToGo Order Form or Statement of Work (generally, the “Order Form”)(the Order Form and these Terms, collectively, the “Agreement”).
IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO THE TOGO APPLICATION, WEBSITE (“SITE”), TOGO’S PRODUCTS AND SERVICES (COLLECTIVELY, THE "SERVICES") IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND THE AGREEMENT. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
ACCESSING THE TOGO APPLICATION OR SITE OR BY UTILIZING THE SERVICES YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THESE TERMS AND THE AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” AND “YOUR” REFER TO SUCH ENTITY.
These Terms supersede all prior terms and conditions. We may amend these Terms from time to time. Amendments will be effective when we post such updated Terms at this location, in the App, or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.
II. ACCESS AND USE OF THE SERVICES
A. Our Services.
1. Subject to your compliance with the Agreement and the timely payment of all fees outlined in your Order Form (“Fees”), we will provide you with a web-based centralized ordering system configured with your logo, colors and images (“White-label”) located at your Website(s) (the “Site”), and/or on a custom native App (“App”), on which your customers may order food, beverages, and other menu items (“Orders”) from you for pickup, delivery, or dine in, and through which You may receive, process and manage such Orders through our proprietary OrderCloud system or other third-party options (collectively, the “Services”). We will provide the Services to you and your affiliates and those other participating locations that sign a Store Location Addendum. YOU SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ANY AND ALL ACTS AND OMISSIONS OF ANY OF YOUR AFFILIATES AND PROVIDERS AND EXPRESSLY ACKNOWLEDGE AND AGREE THAT ANY BREACH OF THIS AGREEMENT BY ANY OF YOUR AFFILIATES OR PROVIDERS SHALL BE DEEMED A BREACH BY YOU.
2. We will use commercially reasonable efforts to (a) provide support for the Services, and (b) make the Services available 24 hours a day, 7 days a week, except for scheduled maintenance and downtime.
B. License. Subject to your compliance with these Terms and payment of all Fees, we grant you a limited, non-exclusive, non-sublicensable, revocable, and non-transferable license to (i) access and use the Platform and, if applicable, point-of-sale integrated devices solely in connection with your use of the Services; (ii) access and use any content, information and related materials that may be made available through the Services, in each case exclusively for your use in obtaining Orders through the Platform; (iii) allow customers to purchase and pay for the Orders made through the Platform; and (iv) to purchase and pay for the Services. You may not and you may not knowingly allow any third party to republish, reproduce, duplicate, copy, display, reverse engineer, disassemble or otherwise attempt to derive our software code or proprietary intellectual property. Further, you may not resell the Services in any manner. We reserve any rights not expressly granted herein.
C. Merchant’s Responsibilities.
1. You shall be responsible for paying all third-party service fees for services affiliated or integrated into the Platform, associated with the hosting, menu management, and maintenance of the e-commerce website.
2. You shall be responsible for providing all content necessary to enable ToGo to perform the Services hereunder, including without limitation: logos, artwork, menus, pricing, and other content related to your offerings and restaurant or store (“Merchant Content”). You are also responsible for providing the data network necessary to access the Services.
3. You hereby grant ToGo a non-exclusive, royalty-free, irrevocable, worldwide right and license to use, display, reproduce, transmit, publish, copy and otherwise exploit the Merchant Content as necessary to provide the Services hereunder.
4. You further grant ToGo a non-exclusive, royalty-free, irrevocable, worldwide right and license to use and display reference to Merchant in our customer lists and marketing materials as well as to post “Powered by ToGoTechnologies” across the Platform. You waive any right to payment, royalties, or any other consideration for the use of the images. You waive the right to inspect or approve the finished work product, including written or electronic copy, where your name or logo may appear.
5. Further, you are solely responsible for:
a. Ensuring the accuracy of Merchant Content, including without limitation, (i) Merchant Content initially loaded onto the Platform and approving the activation of the Merchant Content on the Platform and (ii) making all changes to the Merchant Content either through certain administrative tools made available to you on the Site or otherwise;
b. Processing, fulfilling and delivering all Orders promptly upon receipt;
c. Complying with all federal, state and local laws, rules and regulations, including but not limited to Americans with Disability Act compliance, and other third-party rights with respect to the Merchant Content, in the conduct of your business (including without limitation all alcohol and/or CBD/cannabis sales); the Terms and Conditions for use of the Platform; applicable health and safety codes; delivery service; computation and payment of sales, use or other taxes to the appropriate taxing authority(ies); and all matters concerning quality and condition of any Order or any menu item purchased in connection therewith;
d. Fulfilling all Orders in a timely, accurate and professional manner and shall honor all special offers and promotions that you, your affiliates or agents may make in connection with the Platform in accordance with the terms and conditions disclosed to customers and all applicable laws, rules and regulations;
e. Maintaining commercial general liability insurance with limits no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate from an insurer which is A.M. Best Company rated A- or higher. Any such policy shall be endorsed to specifically name ToGo and its subsidiaries, affiliates, successors and assigns as additional insureds. Merchant shall provide ToGo with a certificate of insurance upon request, and any certificates of insurance shall provide that thirty (30) days prior written notice to ToGo of cancellation or nonrenewal is required.
f. You shall be solely responsible for any and all acts and omissions of any of your Locations, affiliates and providers and expressly acknowledge that a breach of this Agreement by a Location or affiliate is a breach by you. Further, we expressly disclaim all responsibility and liability with respect to:
(i) Merchant Content, including the accuracy and completeness of all Merchant Content, inability or incompatibility of any Merchant Content that prevents publication or inclusion on the Site and failure to publish Merchant Content;
(ii) Customer redemption of or inability to redeem your special offers and promotions; and
(iii) Third party software, add-ons or providers; or
(iv) Fulfillment and delivery of Orders (including without limitation all alcohol or CBD/cannabis sales).
6. Additionally, you shall not directly or indirectly encourage or solicit customers to bypass use of the Site and Services by placing future Orders through you.
7. You, at your own expense, shall obtain all necessary approvals from governmental, regulatory or other authorities with jurisdiction over your business, facilities and assets to enter in to and perform your obligations under this Agreement.
D. Exclusivity. As inducement to enter into this agreement, you agree that, during the Term of this Agreement, ToGo will exclusively provide your branded, White-label online or remote ordering services or portal for you, your affiliates or other Locations located at your Site.
E. Non-Solicitation. During the term of this Agreement and for a period of two (2) years after termination for any reason (the “ Restricted Period”), Merchant shall not, directly or indirectly (i) employ, or knowingly permit any other person which, directly or indirectly, controls, is controlled by or is under common control with the Merchant to employ, any individual who is employed by ToGo at any time during the Restricted Period; or (ii) in any manner seek to induce any such individual to leave his or her employment with ToGo.
F. Customer Data. ToGo and Merchant shall co-own all right, title and interest, in and to any Customer data associated with an Order, including without limitation, phone numbers, email addresses, delivery addresses, other Customer personal information (as defined herein) and transaction data related to each Order (the “Customer Information”) acquired through the Platform. To the extent that you acquire, whether prior to the Effective Date or during the performance of the Services hereof, any rights in any Customer Information provided, accessed or otherwise used by ToGo in connection with the Services, you hereby irrevocably assign to us all right, title and interest in the Customer Information to be co-owned with you.
III. Fees & Payment Terms. For the performance of the Services, You shall pay us without offset the fees set forth in the Merchant Order Form (the “Fees”). Payments are due upon receipt of Invoice. You shall also be responsible for all federal, state and local taxes applicable for the Services, including without limitation, all applicable sales, data processing, alcohol, software, royalty or other excise or use taxes levied by any taxing authority with jurisdiction over your business and which are legally payable by you for the charges, Services, or payments made hereunder other than taxes on our income. All fees and charges hereunder are non-refundable. ToGo shall settle all set up, monthly or other designated fees, costs, approved expenses or other approved charges via an Automated Clearing House (ACH) platform or other approved payment provider on the date set forth in the Order Form. Any payment of fees due hereunder not received by ToGo by the respective ACH date shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the respective due date until the date paid by Merchant to ToGo. If your ToGo account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, ToGo may suspend the Services provided to You, without liability, until such amounts are paid in full. ToGo shall be entitled to collect reasonable attorneys’ fees and costs associated with collection of outstanding balances.
IV. Marketing. We will not directly market the products and services of our other merchants to your customers who use the White-label web or Merchant specific App solely to place Orders with You and have not ordered any products or services from any other ToGo restaurant merchant for so long as the App is generally available for use by customers; provided, however, that:
A. We may market ToGo products and services to your customers; and
B. We may market the products and services of our other restaurant merchants to those Merchant Customers who place Orders using the Services from both Merchant and other merchants. You grant to ToGo a non-exclusive, worldwide license to use your trademarks, service marks, trade names and logo (“Merchant Marks”) to (i) develop, deploy, host and provide the App subject to the terms and conditions of this Agreement; and (ii) market your business generally through the Service. You shall retain ownership of the Merchant Marks.
C. We will not distribute customer ordering information gathered from your ToGo powered online ordering site with other merchants using ToGo’s Services. We may share customer ordering information with appropriate third parties, if necessary, to troubleshoot technical issues with your online ordering powered by ToGo. While order information from a specific merchant will not be shared with any other merchant, customers may sign-in to any ToGo merchant with their ToGo sign-in credentials and order from any merchant’s ToGo powered site. As such, ToGo cannot limit other merchants from accessing customer information if a customer has ordered from your specific ToGo powered ordering site.
V. Term & Termination.
A. Term. 3 years. You agree that this Agreement commences on the date set forth in the Order Form and shall continue as more fully set forth therein; thereafter, this Agreement shall renew for additional one (1) year term (each, a “Renewal Term”) at the then-published prices unless either party provides written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then current term. Together, the Initial Term and all Renewal Terms, if any, shall be referred to herein as the “Term”.
B. Right of First Refusal. For a period of sixty (60) days following expiration or termination of the Term, before you enter into an agreement with a third party service provider for the Services, you shall first offer the proposed service arrangement to ToGo on the same terms and conditions as offered by the third party. We shall have thirty (30) days during which to accept said offer. If we do not accept the offer within the thirty (30) day period, you are free to accept the third-party offer, provided that you shall not enter into an agreement for Services or similar services with such third party or any third party on terms and conditions more favorable to the third party than the terms and conditions offered to ToGo.
C. Termination. We reserve the right to terminate or suspend this Agreement immediately upon written notice if you default in the performance or observance of any term, covenant or condition contained in this Agreement. Termination of this Agreement shall constitute termination of all Affiliate agreements or associated franchisees who have signed an Addendum. In no event will we be determined to be in material breach or default unless you give us written notice of the failure or default with reasonable detail and we fail to cure the described breach within thirty (30) days after receiving the notice; provided, however, that if we are unable to cure the alleged breach completely within such period, we shall not be deemed to be in breach if we have commenced to cure the alleged breach and continue diligently to pursue the same.
D. Survival. Upon expiration or termination of this Agreement, (i) all rights created hereunder shall terminate, except that we may retain the right to reference you in our customer lists and marketing materials; and (ii) the provisions of Sections VI, VII, IX, X, XI, and XII of this Agreement shall remain in effect. Until such time as you have paid all outstanding fees and expenses, including any termination fees, we are under no obligation to provide you with a copy of any data that we may have related to the Services.
VI. Intellectual Property. The Site, Services and all systems, applications (including without limitation the App, to the extent Merchant has elected such option), ideas, designs, methods, methodologies, developments and any associated intellectual property and materials used to provide the Services (“ToGo Intellectual Property”) are the sole and exclusive property of ToGo. ToGo retains all right, title, and interest in and to its ToGo Intellectual Property. Merchant shall not, nor permit others to make any use of, or disclose the ToGo Intellectual Property, except as expressly permitted under this Agreement. Merchant shall not, nor permit others to: (i) copy, republish, frame, print, reproduce, license, transfer, modify, alter, translate, decompile, reverse assemble or otherwise reverse engineer the ToGo Intellectual Property or develop any derivative work thereof; (ii) resell, distribute, or sublicense the ToGo Intellectual Property, make the ToGo Intellectual Property available on a “service bureau” or time-sharing basis, or otherwise allow any unauthorized third party to use or access the ToGo Intellectual Property; (iii) modify any proprietary marking or restrictive legends placed on the ToGo Intellectual Property; (iv) disclose, provide, or otherwise make available any trade secret contained within the ToGo Intellectual Property; (v) use or reference the ToGo Intellectual Property to develop, create, sell, distribute or license any product, program, service or offering of any type competitive to the App; or (vi) use the ToGo Intellectual Property in violation of any applicable law or regulation.
VII. Confidential and Trade Secret Information. “Confidential and Trade Secret Information” means all information and know-how, whether in tangible or intangible form provided to or accessed by either party in connection with this Agreement, including but not limited to the terms of this Agreement, any information related to either party’s operations, financial information, marketing strategies or plans, pricing, customer, vendor and supplier information, business opportunities, or the ToGo and Merchant Intellectual Property, including without limitation all Customer Information. ToGo and Merchant agree that it will not disclose the Confidential and Trade Secret Information to a third party and will only use the Confidential and Trade Secret Information during the term of this Agreement solely as necessary to perform its obligations hereunder. If the event of a breach or threatened breach of this Section, ToGo and Merchant shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such act(s), it being specifically acknowledged by ToGo and Merchant that any other available remedies are inadequate.
VIII. Security of Customer Data. ToGo’s Services involve the storage and transmission of customers’ credit card information and ToGo takes security measures to protect such information. Despite our best efforts, you acknowledge that ToGo’s security measures may be breached as a result of third-party action during transfer of data to additional data centers at any time, and result in someone obtaining unauthorized access to our data or your data. Additionally, third parties may attempt to fraudulently induce you, your employees or customer into disclosing sensitive information such as usernames, passwords or other information in order to gain access to our data or our customers’ data. Because the techniques used to obtain unauthorized access, or to sabotage systems, change frequently and generally are not recognized until launched against a target, ToGo may be unable to anticipate these techniques or to implement adequate preventative measures. In addition, customers may authorize third-party technology providers to access their financial data. Because ToGo does not control the transmissions between your customers and third-party technology providers, or the processing of such data by third-party technology providers, ToGo cannot ensure the complete integrity or security of such transmissions or processing. You acknowledge and assume the risks outlined in this paragraph and agree to hold ToGo harmless for any third-party misuse of your customer’s financial data.
A. To the maximum extent allowed by law, You shall indemnify and hold ToGo, our agents, affiliates, employees, officers, directors, suppliers and our licensors (“Indemnified Parties”) harmless against losses, damages, liabilities, suits, demands, claims, costs and expenses (including reasonable attorneys' fees and related expenses) (generally, “Losses”) made or brought against the Indemnified Parties arising out of or relating to: (i) Your use of the Services or your omission or forbearance related to the Services; (ii) ToGo’s use of Merchant Content; (iii) Your breach of this Agreement; (iv) Your violation of the rights of any third-party; (v) Your use of the Services and App (to the extent You have such option), including but not limited to any Claim brought against ToGo as a result of your failure to ensure the accuracy and completeness of the Merchant Content, including without limitation failure to promptly update, change or modify the Merchant Content; and/or (vi) Your products and services or the conduct of your business including, but not limited to, Your responsibility for fulfilling and delivering all Orders; or your failure to comply with or ensure that your employees and affiliates comply with all applicable laws in connection with your business, including without limitation, federal, state and local laws related to the sale of alcohol or CBD/cannabis.
B. If any action at law or suit in equity is instituted by a third party with respect to which ToGo intends to claim any liability or expense as Losses under this section, ToGo shall promptly notify the indemnifying party of such action or suit.
C. ToGo shall have the right to defend, conduct, control, or settle, through counsel of its own choosing, any third-party claim, action, or suit, and to recover from the indemnifying party the amount of such settlement or of any judgment and the costs and expenses of such defense, including any and all attorneys’ fees and expenses. ToGo may compromise or settle any third-party claim, action, or suit without the prior written consent of the indemnifying party.
D. To the extent any Loss of an Indemnitee is reduced by receipt of payment under insurance policies, such payment, net of the expenses of the recovery thereof (such net payment being referred to herein as a “Reimbursement”), shall be credited against such Losses. If any Reimbursement is obtained subsequent to payment by any of the Indemnifying Persons in respect of Losses, such Reimbursement shall be promptly paid over to the indemnifying party. Further, You agree that no insurance company shall be entitled to assert a claim for subrogation or otherwise against any Indemnitee relating to the payment by an insurance company to any Indemnitee.
E. Notwithstanding anything contained in this agreement to the contrary, all representations, warranties, covenants and agreements contained in this Agreement shall survive the execution and delivery of this Agreement.
X. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, SITE AND ALL INFORMATION AND MATERIALS PROVIDED BY TOGO (INCLUDING WITHOUT LIMITATION THE APP TO THE EXTENT MERCHANT HAS ELECTED SUCH OPTION) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TOGO AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, MERCHANT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY RESELLER, DISTRIBUTOR OR REPRESENTATIVE THAT ARE NOT AUTHORIZED BY TOGO OR THAT ARE INCONSISTENT WITH THE REPRESENTATIONS AND WARRANTIES MADE HEREIN HAVE ANY EFFECT, AND TOGO EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES AND REPRESENTATIONS MADE BY A RESELLER, DISTRIBUTOR OR REPRESENTATIVE.
TOGO DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE SITE, APPLICATIONS, OR ANY OF THE SITE MATERIALS WILL BE FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR MISAPPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION. YOU ARE RESPONSIBLE FOR THE IMPLEMENTATION OF SUFFICIENT PROCEDURES, FIREWALLS, AND CHECKPOINTS WHICH SATISFY YOUR PARTICULAR REQUIREMENTS FOR SECURITY, ACCURACY, AND DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SITE, YOUR SERVERS, FOR THE RECONSTRUCTION OF ANY LOST DATA, INCLUDING BUT NOT LIMITED TO DOWNLOADS FROM OUR SITE OR YOUR SERVER.
XI. Limitation of Liability. IN NO EVENT SHALL TOGO OR ITS LICENSORS HAVE ANY LIABILITY TO MERCHANT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EVEN IF TOGO IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TOGO’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY MERCHANT HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL TOGO, ITS AGENTS, EMPLOYEES, DIRECTORS OR OFFICERS BE LIABLE TO MERCHANT FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF TOGO IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
TOGO SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF (I) YOUR USE OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCES OR USE THE SERVICES; (II) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND A THIRD PARTY, EVEN IF TOGO HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES; OR (III) RELATED TO YOUR VIOLATION OF ANY APPLICABLE LAWS TO YOUR BUSINESS, INCLUDING WITHOUT LIMITATION, LAWS RELATED TO THE SALES OF ALCOHOL OR CBD/CANNABIS. TOGO SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTS FROM CAUSES BEYOND TOGO’S REASONABLE CONTROL.
XII. Governing Law; Venue; Dispute Resolution. This Agreement shall be governed exclusively by the laws of the State of Tennessee, without regard to its conflicts or choice of law rules. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION RELATED TO THIS AGREEMENT. All disputes or claims arising out of or related to this Agreement shall be determined exclusively by arbitration in accordance with the expedited rules of Judicial Arbitration and Mediation Services (“JAMS”) before a single arbitrator. Such arbitration shall be conducted in Nashville, Tennessee. The award of such arbitration shall be confidential, final, binding and non-appealable, except to the extent provided for in the rules of JAMS, and judgment on the arbitration award may be entered into any court having jurisdiction. Each party shall bear its own legal fees and costs. Notwithstanding the foregoing, a party may seek injunctive relief from any court of competent jurisdiction pending the outcome of any dispute resolution procedure set forth in this section. ARBITRATOR SHALL NOT AWARD ANY PARTY DAMAGES THAT ARE INCONSISTENT THIS THE TERMS OF THIS AGREEMENT.
XIII. Equitable Relief. You acknowledge that our rights granted hereunder are special, unique and extraordinary and are of indeterminant value, the loss of which cannot be fully compensated by damages, actions at law or by application of other remedies described herein. Consequently, You acknowledge and agree that, in addition to any other available remedies hereunder, in the event of a breach of your obligations hereunder, We are entitled to seek and obtain equitable relief, including an injunction requiring You to comply fully with your obligations under this Agreement.
XIV. General. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This Agreement is entered into for the benefit of the parties only. There are no third-party beneficiaries, except for ToGo, to the extent necessary to enforce the provisions herein which relate to it. If any provision in this Agreement is found by a court or arbitrator to be invalid, the parties agree that the court or arbitrator give effect to the parties’ intentions as reflected in the provision, and the other provisions will remain in full force and effect. If our performance of any obligations hereunder is prevented or interfered with by a force majeure event (i.e., any condition beyond the reasonable control of, and not occasioned by our fault or negligence), We will be excused from such performance to the extent of such prevention or interference; provided, however, that We must resume our performance as soon as practicable. In no event shall We be liable for any additional costs or damages suffered by You arising out of the force majeure event. This Agreement, together with all exhibits and addenda attached hereto, each of which is hereby incorporated by this reference, constitutes the entire agreement between the parties with respect to ToGo’s mobile app or online order services and supersedes any and all oral and/or prior written agreements between the parties with respect to its subject matter. This Agreement does not supersede or modify any other agreement that Merchant and ToGo have entered into directly with one another. This Agreement may not be modified or altered, and no provision of this Agreement may be waived, except by a written instrument executed by both parties. This Agreement may be executed in several counterparts, all of which when, taken together, shall constitute the entire agreement between the parties hereto. The terms and conditions which by their nature should survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
XV. Assignment. You may not assign this Agreement or delegate any of your obligations hereunder without the prior written consent of ToGo; however, You may assign this Agreement to any entity which directly or indirectly controls, is controlled by, or is under common control with a party or by operation of law in connection with a change of control, provided that the assignee, executes and returns to us an Assignment Agreement in the form provided on our Website agreeing without qualification to abide by the terms of this Agreement. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
XVI. Notice. ToGo may give notice by means of general notice on the Site electronic mail to the email noted on the Order Form, or by written communication sent by first class mail or pre-paid post to the street address noted on your Order Form. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to ToGo, with such notice deemed given when received by ToGo, at any time by first class mail or prepaid post to Fresh Technology, Inc. d/b/a ToGo Technologies 2200 Riverchase Center, Site 500, Hoover, AL 35244.