Provision of Services
- Access to the Services. Lunch agrees to provide to Customer the Services subject to the terms and conditions of this Agreement and for so long as Customer provides timely payment of the fees described in Section 3 when such fees become due and payable. Lunch hereby grants to Customer a non-exclusive, non-transferable license to use the Services and any associated software.
- Storage. Lunch’s servers are located in one or more reputable third party data centers. Nevertheless, Customer agrees to back up Information (as defined in Section 3) regularly and that Lunch is not responsible for damages resulting from Customer’s loss of Information. Customer understands that Lunch may create reasonable technical limits on Customer’s account in respect of file size, storage space or processing capacity. Within 5 days of termination of this Agreement, Customer shall inform Lunch if it desires the deletion of the Information from Lunch’s servers and Lunch shall cause the deletion of the Information. Lunch does not have any obligation to keep or maintain any Information after termination of this Agreement.
- Updates: Fixes. Lunch may (but is not obligated to) make enhancements, improvements, updates or upgrades (collectively, “Updates”) to the Services, including its software and/or platforms. Updates will be implemented by Lunch in its sole and absolute discretion. Lunch shall exercise commercially reasonable efforts to correct any reproducible malfunction of the Services reported to Lunch by Customer.
- Ownership of Service. Customer acknowledges and agrees that Lunch at all times retains all worldwide rights, title and interest in the Services, including in the corresponding object code, source code and associated documentation and all Intellectual Property Rights thereto and any enhancements, modifications, updates, upgrades, improvements and new releases to the Services or derivative works based upon the Services.
Purchase and Sale
Subject to the terms and conditions of this Agreement and the
express terms set forth in the Services, Customer hereby sells, transfers, assigns, sets over and
otherwise conveys to Lunch, and Lunch hereby purchases from Customer, all right, title and
interest of Customer in and to all monies due now or hereafter arising under or evidenced by one
or more Assigned Contracts (the “Receivables”
). “Assigned Contract”
means a contract which
Lunch has expressly accepted as of the Effective Date or hereafter, to meet certain criteria of
Lunch regarding validity and collectability. Such acceptance shall be communicated to Customer in the Services. The purchase price for the Receivables is an amount equal to a
percentage of the amount of the Receivables, which percentage is expressly stated in the Services
(the “Receivables Purchase Price”
). The Receivables Purchase Price shall be paid to Customer
within three (3) business days of the date that Lunch has accepted an Assigned Contract, as
communicated to Customer in the Service. The Receivables Purchase Price shall be paid by
ACH transfer from Lunch’s bank account to Customer’s bank account which Customer bank
account information has been provided to and verified by Lunch in the Service (“Customer’s Account”
- Misuse. Customer agrees not, nor permit anyone else, to misuse the
Services, which includes, without limitation: (a) copying, modifying, hosting, sublicensing,
distributing or reselling the Services; (b) enabling or allowing others to use the Services using
Customer’s account information; (c) accessing or attempting to access the Services by any means
other than the interfaces Lunch provides or authorizes; (d) circumventing any access or use
restrictions put into place to prevent certain uses of the Services; and (e) modifying, adapting,
reverse engineering, decompiling, disassembling or otherwise attempting to derive source code
or other trade secrets from the Service or other property of Lunch.
- Customer’s Information. he parties understand and agree that, as
between the parties, Customer retains all rights and ownership of End-Customer and Customer
information utilized to effect completion of the Services (collectively, the “Information”).
Customer remains solely responsible for the Information, even if some Information is stored on
Lunch’s servers. Customer agrees that it shall not (a) email, post, transmit, upload or otherwise
make available (collectively, “Share”) Information or engage in behavior that violates any person
or entity’s copyright, moral rights, trademark, trade dress, patent, trade secret, unfair
competition, right of privacy, right of publicity and any other proprietary rights (collectively,
“Intellectual Property Rights”); (b) Share any Information that is unlawful, harmful, threatening,
abusive, tortious, defamatory, libelous, obscene, profane, invasive of another’s privacy, bigoted,
hateful or promoting illegal goods, services or activities; and (c) impersonate any person or
entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity.
Additionally, Customer represents and warrants that (i) Customer has the authority to operate
and the right to any and all Information it shares with the Lunch, (ii) Customer has the authority
and right to share any Information it shares; and (ii) the Information does not violate any
- Trademarks. Neither party shall use the other party’s logos, trademarks, services marks, trade names, or trade dress, or other promotional material or activity (collectively, “Marks”) without first obtaining the owner’s prior written consent. Notwithstanding the foregoing, the parties acknowledge that invoices created by Customer using the Services may in the future have a “powered by Lunch” or similar watermark in the bottom corner of such invoices. Lunch hereby grants Customer a limited, non-exclusive, non-sublicensable license to use Lunch’s trademarks, service marks, and logo in the form provided by Lunch solely for the use and distribution of such invoice. Lunch reserves the right, in its sole discretion, to add the “powered by Lunch” or similar watermark to such invoices at any time it deems fit.
- Lunch’s Access to the Content. Lunch does not regularly review Information uploaded to the Services, but Lunch may use available technologies or processes designed to detect, prevent, or otherwise address fraud, security or technical issues or abusive or unlawful content or behavior. Customer understands and agrees that Lunch may access or disclose information about Customer or Customer’s use of the Services, (a) when it is required by law; (b) to respond to Customer’s requests for customer service support and or (c) when Lunch reasonably believes it is necessary to protect the rights, property or personal safety of Lunch, its other users or the public.
Collection of Receivables
- Lunch shall use commercially reasonable efforts to collect all amounts due under the Receivables. Customer agrees to cooperate with Lunch and take any and all commercially reasonable actions requested by Lunch in collecting all amounts due under the Receivables and to ensure that such amounts are deposited exclusively for the benefit of Lunch. In the event that Customer or its affiliate receives any payments in respect of the Receivables, Customer shall deliver or cause such affiliate to deliver such payments to Lunch within three (3) business days following identification thereof. If Lunch receives a check or item which is payment for both a Receivable and another receivable of Customer, the funds shall first be applied to the Receivable and the excess shall be remitted to Customer.
- Customer hereby grants to Lunch and its successors and assigns as Customer’s true and lawful attorney in fact, with full power of substitution, coupled with an interest, (i) to sell, assign, transfer, pledge, compromise, or discharge the whole or any part of the Receivables; (ii) to demand, collect, receive, sue, and give releases to any End-Customer for the monies due or which may become due upon or with respect to the Receivables and to compromise, prosecute, or defend any action, claim, case or proceeding relating to the Receivables, including the filing of a claim or the voting of such claims in any bankruptcy case, all in Lunch’s name or Customer’s name, as Lunch may choose; (iii) to prepare, file and sign Customer’s name on any notice, claim, assignment, demand, draft, or notice of or satisfaction of lien or mechanics’ lien or similar document with respect to the Receivables; (iv) to notify all End-Customers with respect to Receivables to pay Lunch directly; (v) to receive, open, and dispose of all mail addressed to Customer for the purpose of collecting the Receivables; (vi) to endorse Customer’s name on any checks or other forms of payment on the Receivables; (vii) to execute on behalf of Customer any and all instruments, documents, financing statements and the like to perfect Lunch’s interests in the Receivables; and (viii) to do all acts and things necessary or expedient, in furtherance of any such purposes.
- Lunch’s acquisition of Receivables from Customer shall be with full recourse against Customer. In the event Lunch is unable to collect amounts due under any Receivable within 100 days of such amount becoming due or if any of the representations or warranties of Customer set forth in Section 8 are no longer true and correct with respect to any Receivable (in each case, a “Default Receivable”), Customer shall be liable for any deficiency, up to the amount of the applicable Receivables Purchase Price. Customer shall, upon Lunch’s demand (which may be communicated in the Services), repurchase such Default Receivable for the unpaid portion of such Default Receivable, up to the full amount of the applicable Receivables Purchase Price; and payment shall be made by way of ACH transfer from Customer’s Account. In connection with any repurchase of Default Receivables, the parties will promptly execute and deliver such instruments and promptly do, or cause to be done, such other things, all as may reasonably be required to fully vest ownership of such Default Receivable in Customer. Lunch may permit Customer to substitute the Default Receivable with receivables of equal value under another Assigned Contract (which shall thereupon become Receivables hereunder).
Fees for the Services
- Fee. Lunch shall provide the Services throughout the initial term for a fee of [$/month] for [invoice count] invoices a month due as of the Effective Date and monthly thereafter until termination (“Service Fees”). The Service Fee shall be paid in U.S. Dollars.
- Terms of Payment Lunch shall invoice Customer in advance for the
Services. Customer shall pay in full all Service Fees for Services as indicated on the invoice (the
“Due Date”). If Service Fees are not paid within fifteen (15) days from the Due Date, (a) a late
fee of 5% of the overdue amount shall become due and payable by Customer, and (b) such
overdue amount will accrue interest from the Due Date to the date of payment, at an interest rate
equal 1.5% per month. Lunch reserves the right to suspend any or all Services and Customer’s
access to its account if payments are more than (30) days past due.
- Disputed Amounts. In the event that Customer has a good faith dispute
with respect to an invoice, Customer shall remit to Lunch payment of only the undisputed
portion of the invoice and provide written notice to Lunch identifying and substantiating the
disputed amount. Upon notification of a dispute, the parties shall attempt to resolve such dispute
in good faith. If Customer fails to provide such notification within 30 days of the Due Date of
the applicable invoice, Customer waives all rights to dispute such disputed amount and Customer
waives all rights to file a claim thereafter of any kind relating to such disputed amount and to
seek any set-offs or reimbursements or other amounts of any kind based upon or relating to such
disputed amount. Any disputed amounts that were paid by Customer erroneously or under protest
and subsequently resolved in favor of Customer shall be credited to Customer account on the
next invoice following resolution of such dispute. Any disputed amounts determined to be
payable to Lunch shall be due within fifteen (15) days of the resolution of the dispute.
No Lunch Liability
All obligations of Customer as seller of goods or provider of
services under Assigned Contracts are retained by Customer. Lunch shall not have any
obligation or liability to any End-Customer or other customer or client of Customer (including
any obligation to perform any of the obligations of Customer under any Assigned Contracts).
Lunch shall not have any obligation to intervene in any dispute arising out of the performance of
any Assigned Contract. IN NO EVENT SHALL LUNCH BE LIABLE TO CUSTOMER FOR:
(A) DAMAGES RESULTING FROM LOSS OF DATA; (B) THE COST OR PROCUREMENT
OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) LOST PROFITS OR ANY
FORM OF INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION
OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; OR (D)
TOTAL CUMULATIVE DAMAGES IN EXCESS OF $10,000. RECIPIENT AGREES THAT
THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY
SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL
Representations and Warranties of the Parties
Customer represents and warrants to Lunch, and Lunch represents and warrants to Customer, as follows:
- “AS-IS” Basis. THE SERVICES ARE PROVIDED “AS-IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, LUNCH DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LUNCH FURTHER DISCLAIMS ANY WARRANTY THAT (A) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR THAT (C) ANY ERRORS OR DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.CUSTOMER EXPRESSLY ACKNOWLEDGES THAT IN CONNECTION WITH THE SOFTWARE AND THE USE THEREOF, INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL AND JURISDICTION OF LUNCH. ACCORDINGLY, LUNCH ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, LOSS, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE PLATFORMS OR SOFTWARE. IF CUSTOMER’S USE OF THE PLATFORMS OR SOFTWARE RESULT IN THE NEED FOR SERVICING OR REPLACING DATA OR EQUIPMENT, LUNCH IS NOT RESPONSIBLE FOR THOSE COSTS.
- Organization and Qualification. It has been duly organized in, and is validly existing as a corporation or limited liability company, as applicable, in good standing under the Laws of its jurisdiction of organization, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted and will be conducted. It is duly qualified to do business as a foreign organization in good standing and has obtained all necessary qualifications, licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, licenses or approvals.
- Due Authorization. It has all necessary power and authority to execute and deliver this Agreement and carry out the terms of and perform its obligations under this Agreement, and it has duly authorized by all necessary corporate or limited liability company action, as applicable, the execution, delivery and performance of this Agreement on the terms and conditions herein provided.
- Binding Obligations Hereunder. This Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar Laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at Law.
- No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof by it will not, (i) conflict with, result in any breach or (without notice or lapse of time or both) a default under (A) its articles or certificate of incorporation, by-laws, certificate of formation or limited liability company agreement, as applicable, or (B) any indenture, loan agreement, asset purchase agreement, mortgage, deed of trust, or other agreement or instrument to which it is a party or by which it or any of its properties is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, loan agreement, asset purchase agreement, mortgage, deed of trust, or other agreement or instrument, other than any Adverse Claim created in connection with this Agreement or (iii) violate any Law applicable to it or any of its properties.
- No Proceedings. There are no proceedings or investigations pending, or to the knowledge of any of its officers, threatened, before any Governmental Authority (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the purchase or sale of any Receivables or the consummation of the purposes of this Agreement, or (iii) that would prevent it from conducting its business operations relating to the Receivables or the performance of its duties and obligations hereunder. No injunction, decree or other decision has been issued or made by any Governmental Authority against it or its properties that prevents it from conducting its business operations relating to the Receivables or the performance of its duties and obligations hereunder.
- Governmental Approvals.No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by it of this Agreement or the transactions contemplated hereby.
- Compliance with Laws.Customer and Lunch shall comply in all respects with all applicable Laws with respect to it, the Receivables and the Assigned Contracts, except to the extent such non-compliance could not, individually or in the aggregate, reasonably be expected to have a material adverse effect.
Additional Representations and Warranties of Customer
Customer represents and warrants to Lunch as follows:
- Valid Sale. This Agreement constitutes an absolute and irrevocable valid sale, transfer and assignment, as applicable, of the Receivables by Customer to Lunch, free and clear of any Adverse Claim, or alternatively the granting of a valid security interest in the Receivables in favor of Lunch, which security interest is prior to all other liens of Customer, and is enforceable as such against creditors of and purchasers from Customer.
- Title. Immediately prior to the transfer of the Receivables contemplated by Section 2, Customer had good and marketable title to each Receivable free and clear of any Adverse Claim and, immediately upon such transfer, Lunch shall have good and marketable title to such Receivable free and clear of any Adverse Claim. Customer has not entered into any agreement with any Person that prohibits, restricts or conditions the sale of any Receivable by Customer. No financing statement or other instrument similar in effect covering any Receivable or any interest therein is on file in any recording office.
- No Default. Customer has no knowledge of any default, breach, violation or event under the terms of any Assigned Contract which would affect the Receivables or of any continuing condition that with notice or the lapse of time or both would constitute a default, breach, violation or event under the terms of any Assigned Contract which would affect the Receivables, and Customer has not waived any such event or condition. Each Receivable was originated in compliance with applicable Laws.
- Binding Obligation. Each Assigned Contract contains legal, valid and binding payment obligations payable in United States Dollars, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights in general. Each receivable set forth on an Assigned Contract is based on an actual sale and delivery of goods and/or services actually rendered, is presently due and owing to Customer, is not past due or in default, has not been previously sold, assigned, transferred, or pledged, and is free of any and all liens, security interests and encumbrances. The correct amount of each receivable is as set forth in the Assigned Contract and is not in dispute. No term or provision of an Assigned Contract has been amended which would impair, waive, alter or modify the applicable Receivable.
- No Defenses. To Customer’s knowledge, no Receivable is subject to any right of rescission, setoff, counterclaim or defense, nor has any such right been asserted or threatened with respect to any Receivable.
- Solvency. Customer is solvent after giving effect to the transactions contemplated by this Agreement and the sale of the Receivables will not cause Customer to become insolvent.
- Full Disclosure. All information provided by or on behalf of Customer to Lunch in the Services regarding the Assigned Contracts and the Receivables is complete, true and correct in all material respects.
- Basis of the Bargain. CUSTOMER RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY CUSTOMER UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
Covenants of Customer
Customer hereby covenants and agrees as follows:
- No Impairment. Customer shall take no action, nor omit to take any action, which would impair, prejudice or limit the rights of Lunch in any Receivable or adversely affect the collectability of any Receivable, nor shall it reschedule, revise or defer payments due on any Receivable. Customer shall not create or permit to exist any Adverse Claim over all or any of Customer’s or Lunch’s rights, title and interest in and to the Receivables. Customer shall not modify the terms of any Assigned Contract in any manner which would adversely affect the collectability of any Receivables or rights of Lunch as the owner of the Receivables or would otherwise reduce the amount due thereunder or delay the due date thereof. Customer shall not interfere Lunch’s collection of Receivables or attempt to receive or make collection from any End-Customer in respect of Receivables. Customer will advise all Persons inquiring about the ownership of the Receivables that the Receivables have been sold to Lunch.
- Preservation of Existence. Customer shall preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its organization, and qualify and remain qualified in good standing as a foreign organization in each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualification.
- Performance. At Customer’s sole expense, Customer shall timely and fully perform and comply with all provisions, covenants and other promises required be observed by Customer under the Assigned Contracts.
- Further Assurances. Customer shall from time to time at its expense promptly execute and deliver all further instruments and documents, and take all further action that Lunch or its assignee may request in order to perfect, protect or more fully evidence the purchase and sale hereunder, or to enable Lunch or its assigns to exercise or enforce any of their respective rights with respect to the Receivables.
Customer hereby agrees to indemnify and hold harmless Lunch and its Affiliates and their respective trustees, officers, directors, agents, employees and representatives (collectively, the “Lunch Indemnified Parties”
) from and against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related reasonable documented out-of-pocket costs, judgments, and any other reasonable and necessary costs, fees and expenses (collectively, “Damages”
) incurred by any Lunch Indemnified Party resulting from (a) a breach of or non-compliance by Customer or its employees, agents, or independent contractors, with the terms of this Agreement; (b) a breach by Customer of a representation or warranty herein; (c) the ownership, maintenance or purchase of the Receivables; (d) the lack of an enforceable ownership interest or a first priority perfected security interest in the Receivables transferred, or purported to be transferred, to Lunch pursuant to this Agreement against all Persons (including any bankruptcy trustee or similar Person); (e) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an End-Customer to the payment of any Receivable (including a defense based on such Receivable’s or the related Assigned Contract’s not being a legal, valid and binding obligation of such End-Customer enforceable against it in accordance with its terms), or any other claim resulting from Customer’s sale of goods or services related to such Receivable or the furnishing or failure to furnish such goods or services; (f) any failure by Customer to obtain consent from any End-Customer prior to the assignment or sale of Receivables pursuant to the terms of this Agreement; (g) the negligence, willful misconduct, or fraud of Customer or its Affiliate; (h) Customer’s use of the Services; (i) Customer’s violation or alleged violation of the law; or (j) any violation or alleged violation by a Customer or its employee, agent, or independent contractors of any rights of another, including breach of a person’s or entity’s Intellectual Property Rights. Notwithstanding the foregoing, Customer shall not be liable in any such case to the extent that any such Damages is found in a final judgment by a court to have resulted from Lunch’s gross negligence or fraud.
The term of this Agreement shall begin on the Effective Date and continue until terminated under this Agreement. Customer and Lunch shall each have the right to terminate this Agreement at any time. Notwithstanding the foregoing, any termination of this Agreement shall not affect Lunch’s ownership of Receivables, and this Agreement shall continue to be effective, and Lunch’s rights and remedies hereunder shall survive such termination, until all transactions entered into and incurred hereunder or in connection herewith have been completed and satisfied in full, including, without limitation, the payment in full, discharge or repurchase of all of the Receivables in accordance with the terms hereof. Each party agrees that the representations and warranties made herein by such party shall survive until the termination of this Agreement. Sections 2 (Purchase and Sale), 3 (Restrictions), 4 (Collection of Receivables), 7 (No Lunch Liability), 8 (Representations and Warranties of the Parties), 9 (Additional Representations and Warranties of Customer), 10 (Covenants of Customer), 11 (Indemnification), 12 (Term; Termination), and 13 (Miscellaneous) of this Agreement shall survive the termination of this Agreement.
- Definitions. The following terms have the meanings indicated below:
Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements and representations and warranties by or between the parties, written or oral, to the extent they relate in any way to the subject matter hereof. If any provision of this Agreement is found to be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of the Agreement.
Notices. All notices, requests, demands, claims and other communications hereunder will be in writing and shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail or through the Service, (iii) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) four business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, in each case addressed to the intended recipient as set forth on the signature page hereto. A party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. No party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other party; provided, however, that Lunch may assign all of its right, title and interest in, to and under the Receivables and other rights under this Agreement for collateral security purposes to any lenders providing financing to Lunch or any of its Affiliates.
No Third-Party Beneficiaries. Except as otherwise expressly set forth in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Persons other than the parties and their respective successors in interest and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third Persons to a party hereto, nor shall any provision give any third Persons any right of subrogation or action against a party hereto.
Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without giving effect to any choice or conflict of Law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
Waiver of Jury Trial. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT A JURY.
Consent to Jurisdiction. EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION OF UNITED STATES FEDERAL COURT SITTING IN NEW CASTLE COUNTY, DELAWARE IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH FEDERAL COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
Amendments; Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the parties. No waiver by any party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the party making such waiver nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No failure to exercise and no delay in exercising any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by Law.
Severability. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile, electronic transmission or PDF copy), each of which shall be deemed an original but all of which together will constitute one and the same instrument.
- “Adverse Claims” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, orders, awards, decisions, injunctions, judgments, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, mortgages, encumbrances losses, damages, deficiencies, costs of investigation, court costs, and other expenses (including interest, penalties and reasonable attorneys’ fees and expenses, whether in connection with claims related to the enforcement of the provisions of this Agreement).
- “Affiliate” means, with respect to any Person, any Person that, directly or indirectly through one or more entities, controls or is controlled by, or is under common control with, such Person. As used herein, “controls,” “control” and “controlled” mean the possession, direct or indirect, of the power to direct the management and policies of a Person, whether through the ownership of fifty percent (50%) or more of the voting interests of such Person or otherwise.
- “Governmental Authority” means a foreign, United States, state, local or other governmental entity or municipality or subdivision thereof or any authority, department, commission, board, bureau, agency, court or instrumentality.
- “Law” means all laws, orders, judgments, rules, codes, regulations, requirements, variances, decrees and ordinances of any Governmental Authority.
- “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority.
Exhibit A: Service Level and Support Terms
This Lunch Service Level and Support Terms (“SLA”
) is policy governing use of the Services under the terms of the Lunch, Inc. Master Services Agreement (“Agreement”
) between Lunch and Customer. Unless otherwise provided herein, this SLA is subject to the terms of the Agreement and capitalized terms not otherwise defined will have the meaning set forth in the Agreement. This SLA states Customer’s sole and exclusive remedy for any failure by Lunch to meet the Target Availability commitment (as defined below).
- AVAILABILITY. During the term of the Agreement, the Services are subject to the Target Availability set forth below:
- Availability. Lunch will use commercially reasonable efforts to make the Services Available for at least the percentage of time in each calendar month set forth in the table below (“Target Availability”), subject to the Exclusions set forth below. “Available” means the Services are substantially operable for the purposes for which they are provided. “Downtime” means the Services are not Available.
|Lunch’s receivables software assisting with the management and collection of invoices
- Exclusions. Achievement of Target Availability will not be affected by Downtime attributable to any of the following exclusions: Scheduled Downtime, Emergency Maintenance, and issues caused by matters beyond Lunch’s reasonable control (such as, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Lunch’s employees), denial-of-service attacks, third-party Internet service provider failures or delays, failures of wireless carrier connectivity for any reason, or issues caused by Customer’s devices, equipment or systems) (“Exclusions”). “Scheduled Downtime” means Downtime during certain time windows for maintenance purposes on a schedule maintained by Lunch (which will typically be during the periods of lowest anticipated usage), provided that Scheduled Downtime in excess of 24 hours in any twelve month period (other than at the request of Customer) will not be deemed an Exclusion. “Emergency Maintenance” is maintenance required to remedy critical matters arising due to matters beyond Lunch’s reasonable control.
- Term. The term of the SLA shall commence on the Effective Date and shall continue for the duration of the active term of the Agreement.
- SUPPORT LEVELS AND RESPONSE TIMES – GENERAL
|Severity 1 Initial Response Times
||Severity 2 Initial Response Times
||Severity 3 Initial Response Times
|1 Business Day
||5 Business Days
||10 Business Days
- Security Level Definitions
- Severity 1: A critical problem with the Services which results in the Services’ functionality being completely inoperable or severely degraded.
- Severity 2: A problem with the Services in which any of the following occur: the Services are degraded, major functions are not performing properly, the situation is causing a significant impact to certain portions of customer’s operations or productivity.
- Severity 3: A problem with the Services that is not a Severity 1 or a Severity 2 level problem but is otherwise a failure of the Services to conform to specifications. A minor problem with the Services that (i) affects non-essential functions or (ii) affects material functions in a manner that has minimal (non-material) impact to business operations.
- Customer Support
- Lunch live technical support hours are 6:00 am Pacific Time until 6:00 pm Pacific Time seven days a week (subject to the below exceptions). Technical support can be contacted as follows:
- Communication Channels
- Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January 1). Limited technical support will be available during the hours listed above during Lunch holidays. The current Lunch holidays are set forth below:
- Presidents Day (third Monday of February)
- Memorial Day (last Monday of May)
- Independence Day (July 4)
- Labor Day (first Monday of September)
- Thanksgiving Day (fourth Thursday in November)
- Christmas Eve (December 24)
- New Year’s Eve (December 31)