This Agreement made on date accepted or the date of first use, whichever is earlier (“Effective Date”) by and between KITCHEN BRAINS, an business operation of Food Automation Service Techniques, Inc., a Delaware Corporation, having its principal place of business at 905 Honeyspot Road, Stratford, Connecticut and its affiliate, SCK Direct, Inc. (hereinafter collectively “Kitchen Brains”), and You (hereinafter called “Customer”).
WHEREAS, the Kitchen Brains owns rights to certain equipment used for the purposes of gathering sensor data, including but not limited to temperature and status, remote data telemetry (the “Equipment”), and access to said collected data through web- based information services known as mySCK (the "Information Services") as maybe more particularly described on Schedule A as amended and updated from time to time; and
WHEREAS, Customer desires to obtain the use of the Equipment and Information Services for its own internal business purposes.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows:
1. Equipment (if applicable). Kitchen Brains hereby provides to Customer, the Equipment and any duplicate parts, extras and mechanisms and devices used in connection therewith and attached to or delivered with the Equipment such equipment and service to be installed at the Customer's location(s) associated with your mySCK account. The Customer may purchase the Equipment or the Equipment may be leased from Kitchen Brains.
2. Commencement of Services. This Agreement shall commence on the Effective Date and shall continue in accordance with the provisions of Paragraph 14. Kitchen Brains shall bill the Customer in accordance with the charges specified on Schedule A.
3. Our Service. Kitchen Brains shall provide Information Services to the Customer which operate in conjunction with the Equipment or Customer supplied equipment. The Information Services shall be provided to the Customer pursuant to a subscription which shall commence as of the shipping date of each piece of Equipment and be payable in advance at the published rates Kitchen Brains charges at the time.
4. Use. Customer shall operate the Equipment according to its instructions and shall not use the same for any purpose other than its intended purpose. Customer shall not alter or permit the alteration of the Equipment in any way. Customer acknowledges that the Equipment cannot and will not be operated except in conjunction with the Information Services. Furthermore, Customer acknowledges that it will not be able to access any data collected by the Equipment except through the Information Services.
5. Title. The Equipment hereunder shall at all times be and remain the exclusive property of Kitchen Brains unless Customer has purchased and fully paid for the Equipment at the inception of this Agreement. The Equipment which has not been purchased by the Customer shall not be assigned, transferred or sublet by the Customer to any other person, firm or corporation, unless Kitchen Brains has accepted, at it's sole discretion, The execution of an additional agreement (containing terms and conditions as set forth herein) or other acceptable affirmation of the existing Agreement by the proposed successor to the Customer.
6. Terms and Conditions for Use of Software. The Equipment and the Information Services incorporate software (“Software”) which is owned by Kitchen Brains or its affiliates. IF AT ANY TIME YOU THE CUSTOMER DO NOT AGREE WITH THE TERMS CONTAINED HEREIN YOU SHOULD IMMEDIATELY DISCONNECT THE EQUIPMENT AND STOP USING THE INFORMATION SERVICES. These terms also apply to any updates, modifications or enhancements to the software contained in the Equipment or applied to the Information Services.
You may not copy, modify or transfer the Software, or any copy thereof, in whole or in part. You may not reverse engineer, disassemble, decompile or translate the Software, or otherwise attempt to derive the source code of the Software, except to the extent allowed under any applicable law. Any attempt to transfer any of the rights, duties or obligations of this license agreement is void. You may not rent, lease, load, resell for profit or distribute the software, or any part thereof to a third-party. You may not export, transfer or re-export the Software in violation of any applicable law.
The Software is licensed, not sold, to you for use only under the terms of this Agreement, Kitchen Brains is NOT transferring title or any ownership rights in the Software to you and Kitchen Brains and its affiliates reserve all rights not expressly granted to you. Except as stated above, this license agreement does not grant to you any intellectual property rights in the Software.
7. Access. Kitchen Brains, and its agents and employees, shall at all times have access to the Customer's premises for the purpose of inspecting the Equipment hereunder and observing its use and operation, and making alterations, improvements or additions thereto; and Customer shall afford all reasonable facilities therefore, and shall allow Kitchen Brains to make such reasonable alterations, improvements or additions as Kitchen Brains shall deem necessary, at its expense.
8. Replacement and Repairs. During the Term, for Equipment which has been leased by Kitchen Brains to the Customer, Kitchen Brains agrees to repair or replace any Equipment hereunder, which fails to function properly under normal and proper use because of defects in material or workmanship. Customer shall deliver any such inoperative Equipment or its equivalent, freight prepaid. Kitchen Brains reserves the right to ship all replacements by the lowest cost carrier. Customer shall at all times, at its own expense, keep the Equipment in a clean and protected condition, and shall not permit anyone to injure or deface such Equipment or remove there from any parts, plates, dates, numbers or other inscriptions now or hereafter impressed on or affixed to the Equipment by Kitchen Brains. Customer shall not otherwise make or allow to be made, any addition to, or alteration in the Equipment without the written consent of Kitchen Brains. Customer and its agents shall use due care in the handling and operation of the Equipment. THE FOREGOING OBLIGATIONS ON THE PART OF KITCHEN BRAINS ARE IN LIEU OF ALL OTHER OBLIGATIONS AND LIABILITIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXPRESS OR IMPLIED IN FACT OR BY LAW.
9. Risk of Loss. During the term of this agreement and any renewal thereof, all risk of loss, injury, damage, or destruction of Equipment leased pursuant to a subscription agreement hereunder shall be the sole responsibility of Customer.
10. Information Services. Kitchen Brains makes no warranty as to the availability, accuracy, or usefulness of the data collected by the Equipment or through the Information Services.
THE KITCHEN BRAINS AND mySCK INFORMATION SERVICES ARE PROVIDED AS IS AND KITCHEN BRAINS MAKES NO REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, CONCERNING THE SERVICES, THE WIRELESS MESSAGING NETWORKS THROUGH WHICH THE SERVICES ARE PROVIDED, ANY INTERNET ACCESS OR DELIVERY OF SUCH INFORMATION PROVIDED HEREUNDER, OR ANY COMPONENT THEREOF, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATED THERETO, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE INFORMATION SERVICES.
Customer agrees that data collected by the Information Services is subject to the provisions and permitted uses pursuant to paragraph 17 , Confidential Information.
11. Installation Services. Unless specified otherwise in writing Kitchen Brains shall not provide any installation services for the Equipment or set-up the Equipment or Information Services, all of which shall be at the expense of the Customer.
12. Disclaimer of Damages and Limitation of Liability. IN NO EVENT WILL KITCHEN BRAINS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL SPECIAL OR PUNITIVE DAMAGES RELATED TO THE INFORMATION SERVICES OR THE INFORMATION SERVICES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES AND KITCHEN BRAIN'S ENTIRE LIABILITY FOR ANY CLAIM RELATED TO THE INFORMATION SERVICES SHALL BE LIMITED TO THE AMOUNT CUSTOMER PAID FOR THE INFORMATION SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ANY SUCH CLAIM.
13. Taxes. Kitchen Brains intends all payments made under this agreement to be net to Kitchen Brains and Customer shall pay all taxes and assessments which may be levied upon or in respect of the Equipment or its operation, any installations services contracted or the Information Services, and shall pay any other liability of any character which may be imposed or incurred as an incident to the physical possession or operation of the Equipment including but not limited to sales, use or property taxes imposed on Kitchen Brains or Customer incident to rental, use or installation of the equipment or services provided by Kitchen Brains hereunder.
14. Term. This agreement shall continue, unless sooner terminated in accordance with the provisions of this Agreement, for the term stated in Schedule A commencing with the date Equipment is shipped F.O.B. from Kitchen Brains' factory (the "Term").
15. Breach. This agreement may be terminated by Kitchen Brains in case of material breach by Customer of any of its obligations hereunder, or if sale, mortgage, lease, security interest, or other encumbrance, or removal of the Equipment leased hereunder, or any part thereof, is made, permitted, or attempted without the written consent of Kitchen Brains if any distress, execution, or attachment is levied thereon; or if Customer shall become bankrupt, or a receiver of its property is appointed or Customer makes any assignment for the benefit of creditors. In any such event, Kitchen Brains may give notice in writing to Customer of its election to terminate this agreement, and if the cause for the termination is not corrected within twenty (20) days after the giving of such notice, the Agreement shall forthwith terminate. The waiver or non-enforcement by Kitchen Brains of its right to terminate this agreement with respect to any breach by Customer shall not be deemed to affect the right of Kitchen Brains to elect to terminate this agreement for any subsequent or other breach by Customer. Customer shall upon any such breach owe the full balance of the remaining payments still due for all Equipment and Information Services for the full term of the Agreement hereunder.
This Agreement may be terminated by Customer in the case of material breach by the Kitchen Brains of any of its obligations hereunder, provided that Customer has given Kitchen Brains not less than twenty (20) days written notice to correct the breach. Customer shall notify Kitchen Brains of its intention to terminate and state the cause of such termination in its written notice to Kitchen Brains. If the agreement does forthwith terminate due to Kitchen Brains' material breach under this paragraph, Customer shall not be obligated to Kitchen Brains for any early termination fees which might otherwise be applicable. Notwithstanding any provisions of this paragraph, Customer shall be obligated to comply with all other conditions of termination as stated in paragraph 16.
16. Effect of Termination. Upon the termination of this agreement, whether by expiration of term or otherwise, (i) Customer shall forthwith deliver to Kitchen Brains freight prepaid, at Kitchen Brains' principal place of business, the Equipment owned by Kitchen Brains and all duplicate parts, extras, mechanisms or devises used in connection therewith, whether or not attached thereto, in good order and condition, reasonable wear and tear excepted, and (ii) Customer's rights to use the Equipment and Information Services shall immediately cease. Upon failure of Customer to comply with the terms of this paragraph, Kitchen Brains shall have the right to enter upon any premises where the Equipment and its accessories may be located, and to take possession of and to remove the Equipment and their accessories at the expense of Customer.
17. Confidential Information. It is understood that the use of the Equipment and Information Services involves the disclosure by Kitchen Brains to Customer of certain confidential information that Kitchen Brains has developed. All such confidential information relating to the Equipment, its applications and methods, or the Information Services shall be treated by Customer as confidential information and shall not be directly or indirectly used, sold or otherwise disclosed without prior written consent of Kitchen Brains for a period of ten (10) years from the date hereof; provided, nevertheless, this paragraph shall not be construed to prohibit Customer acquisition of items commercially available from independent sources that have separately originated such items without derivation directly or indirectly from Kitchen Brains, and provided further, that this restriction shall not apply to information which Customer is able to document as being within its possession or as being generally and known to the trade on an unrestricted basis prior to the disclosure to it by Kitchen Brains of such information.
Kitchen Brains safeguards Customer data on secure systems with restricted access and has implemented appropriate security controls to protect the information collected by the Information Services. Kitchen Brains does not release individual Customer data collected to any other business entity without Customer written consent. Written consent may be obtained electronically, such as by e-mail. Kitchen Brains may use industry standard software to create summary statistics of the data collected from all users of the mySCK Information Services, and including yours, the Customer. All data collected by the Information Services and aggregated may be used on an unrestricted basis by Kitchen Brains provided your Customer specific data is not individually identified.
Kitchen Brains recommends that Customer protect the confidentiality of the user name and password used to access the mySCK webportal. Because Customer is responsible for the use of the mySCK webportal, please use discretion when choosing to share the user name or password with anyone who could use it to access Customer specific data.
18. Notice. Any notice given by either party shall be sufficient only if sent by registered mail, postage prepaid, addressed to the other party at its principal place of business, and any such notice shall be effective as of the date of mailing thereof.
19. Modifications. None of the provisions of this agreement may be waived, changed or altered except by an instrument in writing signed by officers of both parties.
20. Benefit. This agreement shall be binding upon and inure to the benefit of the Kitchen Brains, its legal representatives, successors and assigns, and shall be binding upon Customer and its legal representatives.
21. Severability. If any provision of this agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this agreement shall remain in full force and effect and shall be binding upon the parties hereto.
22. Force Majeure. Neither party shall be liable for damage due to any cause beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, fire, sabotage, war, embargo or acts or omissions of the other party caused by any of such events.
23. Governing Law. This agreement shall be governed by the laws of the State of Connecticut without regard to its conflict of law principles. Customer hereby irrevocably consents and agrees that any action or proceeding hereunder shall be instituted in a state or federal court located in Fairfield County, Connecticut, and hereby irrevocably submits to the jurisdiction of such courts in any such action or proceeding.SCHEDULE A
Equipment and Information Services Fee
Renewal: This Agreement will automatically renewal for additional 12 month terms upon the expiration of the initial term( or subsequent renewals thereof) unless Kitchen Brains is notified in writing, 30 days in advance of the end of the current term. Failure of to return equipment or to stop using the Information Services in accordance with Paragraph 16, shall presumptively assume to be notice to renew for an additional 12 month term.
Data Reporting and Retention: Subscription to the Information Services provides access to data collect and information reporting over the internet by configuring a user profile at http:\www.MySCK.net . Each location is a separate subscription that includes upto four user profiles and the archiving of daily logs received from the covered location for the previous 12 months.
Additional data archiving and additional reporting options including comparative trending by upgrading to premium services for an additional cost.
Early Termination Fee: This Agreement is non-cancelable during the Initial Term. Cancellation prior to the conclusion of the Initial Term requires an early cancellation fee of $500 (per location) in addition to conforming to all other requirements of termination under Paragraph 16 of the Agreement.