Operator POS Terms and Conditions
Last Updated: May 1, 2017
BY SUBMITTING AN ORDER (AS DEFINED BELOW), APPLYING FOR AN ACCOUNT (AS DEFINED BELOW), OR OTHERWISE ACCESSING OR USING ANY OF THE CAKE SERVICES, OPERATOR IS ACCEPTING THE AGREEMENT AND AGREES THAT OPERATOR HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE AGREEMENT. IF YOU ARE USING THE CAKE SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU: (a) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT AND (b) AGREE TO BE BOUND BY THE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE CAKE SERVICES.
1. Ordering CAKE Services
Operator may acquire Cake Services through an initial order placed with Cake (the “Initial Order”) and one or more additional orders that reference the Agreement and are placed with Cake during the Term (as defined below) (each, a “Supplemental Order” and all Supplemental Orders, if any, together with the Initial Order, the “Orders”). Each Order placed by Operator is subject to acceptance by Cake. Cake and Operator will cooperate to determine how a particular order may be placed (e.g., through a Cake-controlled website, through a Cake representative, or otherwise). The pricing for Cake Services on each Order is based on Cake’s then-current pricing for the applicable Cake Service(s), except as otherwise expressly agreed by Cake.
2. Account Application and Use; Updates
2.1. Account Application. Operator must create a registered user account through Cake’s designated website or other process (the “Account”) to acquire or use the Cake Services. The Account creation process may occur in connection with placing the Initial Order and additional information may be required in connection with the Account as part of Supplemental Orders. The application that Operator is required to complete and submit to create its Account (the “Account Application”) may require Operator to provide information and consents regarding its business and bank account(s) and is subject to Cake’s final review and approval.
2.2. Account Access. Operator is solely and exclusively responsible for the confidentiality of and controlling access to the Account, including any use by any third party, and is further responsible for changing login information (such as the password) to maintain continued confidentiality and limited access to the Account. Cake will not be responsible for any losses arising out of the unauthorized use of the Account. If Operator has reason to believe that the Account is no longer secure, Operator must immediately notify Cake at email@example.com.
2.3. Changes to Account or Operator. Operator will keep information about Operator within the Account complete and accurate at all times. Operator will make commercially reasonable best efforts to promptly notify Cake of any anticipated sale of or change of control in Operator’s business or of its intent to change Operator’s trade name or fundamentally modify the manner in which Operator accepts payments.
2.4. Activation of Cake Services. Operator will cooperate with Cake to install applicable equipment, integrate systems, or otherwise activate any Cake Service as is reasonably necessary for the applicable Cake Services to be used by Operator. Failure to cooperate in the activation of a Cake Service does not relieve Operator’s obligation to pay any Fees (defined below) due under the Agreement.
2.5. Wireless or Internet Connectivity; Offline Mode. Operator is solely responsible for the primary Internet access and connectivity necessary to utilize the Cake Services or Cake Market Services (as defined below) and releases Third Party Provider and Cake from any liability arising in connection with Operator’s use or reliance on any wireless connectivity in connection with the Cake Services or Cake Market Services. The POS Service may offer an “Offline Mode” as a convenience feature. Offline Mode enables the POS Service to operate even when the Internet connection is slow or completely interrupted. Card payments accepted in Offline Mode may not be fully authorized until Internet connectivity is reestablished.
3. CAKE Services Descriptions; Exclusions
3.1. Cake Services. “Cake Services” includes some or all of the following, to the extent that Cake expressly agrees to make each of the following available to Operator as part of an accepted Order:
(a) a cloud-based integrated point of sale and mobile ordering platform (the “POS Service”), as further described in Section 3.2;
(b) online ordering services to sell and promote Operator’s products to online consumers via Cake’s websites and applications (such as mobile apps) or any website(s) (including Operator websites and social media (e.g., Facebook plugins)) owned by Operator or provided as part of the Cake Services, together with related marketing campaigns, if applicable (the “Cake Order Service”), as further described in Section 3.3;
(c) gift card programs (“Cake Gift Cards”), as further described in Section 3.4;
(d) certain professional services, such as training, installation, and troubleshooting services, each to the extent selected on the applicable Order or applicable to Operator, as further described in Section 3.5;
(e) support provided by or on behalf of Cake in connection with use of the Cake Services or POS Hardware, as further described in Section 3.6;
(f) access to other software or Internet services under Cake’s control;
(g) provision of POS Hardware (as defined below), which may be purchased from or leased by Cake, and related technology included on or provided with the POS Hardware, as further described in Section 4; and
(h) certain ancillary marketing services provided by Cake.
Cake may add additional Cake Services or discontinue or modify then-existing Cake Services from time to time, but will not materially remove functionality from Cake Services that are covered during an Order then in effect except as otherwise expressly specified in the Agreement.
3.2. POS Service
3.2.1. General. The POS Service is a local commerce cloud-based software as a service platform through which Operator may manage its business via a point of sale and/or mobile order system. The POS Service may include features such as order management, sales analysis, payment authorization, and menu management and is delivered in conjunction with a POS terminal or mobile tablet.
3.3. Cake Order Service. The Cake Order Service is a restaurant online ordering system that enables Operator to set up and/or manage a restaurant ordering profile, comprised of contact, marketing and menu information (a “Cake Order Profile”), and publish such information to a web site or application or other media or media channels, devices, software, or technologies as may be included within the Cake Services and/or certain third party social media site(s) (e.g., Facebook.com), where Buyers can submit orders for products (such as food and drink) to Operator. The mobile application component of the Cake Order Service enables restaurants to receive incoming Buyer orders and review such orders. Now or in the future to receive and be approved for Cake Order Services, Operator may be required to apply for a payments merchant account directly with Cake and/or its bank partners and agree to the Cake Payment Agreement (as defined in Section 3.10 below). To the extent Operator elects at any time to utilize a Cake Order Service and a Third Party Provider provides supporting services, the additional Third Party Provider may impose additional terms and conditions and Operator will comply with those terms for as long as Operator utilizes those services.
3.4. Cake Gift Card Program
3.4.1. Generally. Cake Gift Cards (previously branded as Leapset Gift Cards or Leapset “Wallet”) is a gift card management program that enables Operator to offer gift cards to its Buyers to redeem for Operator’s goods and services at an Operator location (i.e., the gift cards are “closed loop” gift cards) and to monitor the balance and redemption of those gift cards. The Cake Gift Card program is offered from time to time through use of generic cards (“Generic Cards”) or custom designed cards (“Custom Cards”). Generic Cards and Custom Cards are designed for compatibility with the POS Service. The Generic Cards and Custom Cards may not function with third party point of sale software or hardware. Operator will pay Fees associated with the Cake Gift Cards service (in the absence of an Order Form to the contrary such fee shall be $25 per month per location recurring until the month that follows receipt by Cake of notice of cancellation of the Cake Gift Card service by Operator) and any card production and shipping fees for each order of gift cards.
3.4.2. Gift Card Law Compliance. A Buyer may not have more than $2,000 (or the maximum permitted by law, whichever is lower) in value on any gift card issued by Operator in connection with the Cake Gift Cards services (an “Operator Gift Card”) (whether loaded on a Generic Card or Custom Card) at any time. Operator will implement policies and procedures reasonably adapted to prevent the sale of more than $10,000 (or the maximum permitted by law, whichever is lower) in Operator Gift Cards to any Buyer during any one day. Expiration dates and service fees on Operator Gift Cards are prohibited, unless and to the extent allowed by applicable law. While Operator may not generally provide a cash refund from or cash back on Operator Gift Cards, certain states (e.g., California) require that a gift card with a balance of less than a certain amount ($10 in California) be redeemable by Operator in cash. Operator is solely responsible for compliance with, and covenants to comply with, federal (including the Credit Card Act of 2009), state, and local laws that apply to gift cards, including those that relate to notices and disclosure, fees, exchanges and refunds, expiration dates, and abandoned property compliance and reporting. These laws may require Operator to report and pay over to the applicable local, state, or federal governmental agency any unredeemed cash value of any Operator Gift Cards. Operator is responsible for customer service for Buyers and holders of Operator Gift Cards and for tracking the amount paid for any Operator Gift Cards and any unredeemed balance of that amount. Operator is responsible for losses resulting from fraud committed by Buyers or Operator employees and any other use or misuse of Operator Gift Cards or any third party claims arising from Operator Gift Cards.
3.4.3. Gift Card Disclaimer. OPERATOR, NOT CAKE, IS THE ISSUER AND ADMINISTRATOR OF ANY OPERATOR GIFT CARDS, HOLDS ANY AND ALL FUNDS RELATED TO OPERATOR GIFT CARDS (UNTIL FUNDS ARE REDEEMED), AND IS SOLELY RESPONSIBLE FOR HONORING OPERATOR GIFT CARDS (THE “GIFT CARD OBLIGATIONS”).
3.4.4. Gift Card Program Cessation. Any unused balance of any Operator Gift Card must remain available to the holder of the Operator Gift Card until redeemed in full, even if Operator has ceased subscribing to the Cake Gift Cards service. Specifically, if and when the Cake Gift Cards service is terminated, Operator must establish records in tangible or electronic form that enable Operator to honor its Gift Card Obligations. Further, in the interests of protecting Buyers, if the Agreement terminates or Operator ceases using the POS Service (for whatever reason) then Operator will make good faith efforts to (a) migrate any card funds underlying any Generic Cards or Custom Cards to a new gift card program that is compatible with Operator’s new point of sale system or (b) if Operator’s new point of sale system is practicably incompatible with either Generic or Custom Cards (as programed) or Operator is not using any point of sale system on a go-forward basis, then Operator will establish records in tangible or electronic form that enable Operator to honor its Gift Card Obligations. Cake will provide reasonable access to documentation and technical specifications (subject to the confidentiality and intellectual property provisions of the Agreement) to the extent reasonably necessary for Operator to achieve the foregoing. None of the foregoing will limit Operator’s obligations under this Section 3.4, including Gift Card Obligations.
3.5. Professional Services. On a time and materials fee basis, during standard business hours, Cake may (in its sole discretion) offer professional services such as training, installation, menu set-up, troubleshooting, and hardware repair services (directly or through a business partner) (“Professional Services”). The fee for Professional Services will equal Cake’s then-current rate for the applicable Professional Services multiplied by the number of units of the service being provided (e.g., per hour, per class, or per installation) plus the cost of materials. The rate and an estimate for the number of units being provided and materials cost will be quoted to Operator at the time of the request for Professional Services. The fee estimate does not limit the bounds of what may be further requested prior to or what is actually required for performance of the Professional Services.
3.6. Customer Service Support. Customer support is available for certain Cake Services. Cake will not be liable for any errors or omissions in any customer service support it provides or for any losses resulting from that support or lack of provision of support, including losses resulting from Operator’s reliance, or failure to rely on, that support. Customer support contact information is as follows:
Customer service calls (inbound and outbound) may be monitored and recorded by Cake to ensure quality of service in a manner consistent with applicable laws unless otherwise expressly stated during the call.
3.7. Additional Services. From time to time, Operator may be provided access via the Account to products or services beyond the products or services that within the then-current scope of “Cake Services” (the “Additional Services”). The Additional Services may be subject to additional fees, terms, policies, rules, or guidelines or a separate agreement between Operator and Cake, such as end-user license agreements for any downloadable software applications, or rules applicable to a particular feature or content on the Cake Services (“Additional Terms”). Unless otherwise expressly stated in the Additional Terms, all Additional Terms are incorporated by this reference into, and made a part of, the Agreement.
3.8. Operator Deliverables. Operator is responsible for the provision of any ancillary supplies, maintenance, configuration, and services, if any, reasonably necessary to utilize any Cake Services (“Operator Deliverables”). Although the requisite Operator Deliverables vary depending on the type of Cake Service, at a minimum Operator may need: (a) a stable broadband Internet connection, (b) POS printer paper, and (c) a merchant account for payment processing services. Cake will not be liable for any problems or damages of any kind related to Operator Deliverables.
3.9. Upgrades. Cake may from time to time offer upgrades to a Cake Service that may be critical or mandatory (each, an “Upgrade”). Operator will cooperate to make or facilitate any downloads, installations, or system and process modifications to the extent required to effectuate those Upgrades and releases Cake from any liability for any interruption or cessation of any Cake Service for failure to so cooperate.
3.10.1. Payment Facilitator Services. Cake is not a bank and does not sell banking services (as defined by U.S. law), however, Cake now or in the future may offer payment facilitator services (“PayFac Services”) wherein Cake facilitates the processing of payments received in transactions with Buyers. “Cake Services” does not include PayFac Services. PayFac Services may, depending on Operator’s preferred use case, govern either card present or ecommerce transactions. To receive and be approved for PayFac Services, Operator will be required to apply for a payments merchant account directly with Cake and agree to the terms and conditions governing the PayFac Services (the “Cake Payments Agreement”). In connection with the PayFac Services, Cake is required to enter into legal contracts with processors, acquiring banks, and card networks (such as Visa and MasterCard). In some cases, the card networks may require that Operator enter into a contract directly with Cake’s processor or bank partners, either during the initial application process or at some other time, and further delivery of Cake’s payment facilitator services may be conditioned on entering into that contract. PayFac Services are not provided in connection with WorldPay or RBS.
3.10.2. Third Party Payment Vendors/WorldPay. If applicable to the Cake Service being provided, at Operator’s request, Cake may refer Operator to point of sale payment processing services provided directly (and not in connection with PayFac Services) by third party vendor(s) (each a “Payment Processor”) to facilitate processing of payments received from Operator’s customers (“Buyers”). “Cake Services” does not include card present payment processing services, even where related to the Cake Services. Cake has partnered with WorldPay US, Inc. (“WorldPay”), a registered ISO/MSP of Citizens Bank, N.A. Providence, RI (“RBS”), to market WorldPay’s card present processing services. Operator, not Cake, will enter into any payment processing agreement(s) with those vendor(s). OPERATOR ASSUMES SOLE AND ABSOLUTE RISK FOR ITS USE OF PAYMENT PROCESSOR SERVICES AND NO CAKE ENTITY (AS DEFINED BELOW) IS LIABLE FOR ANY CLAIM OR DAMAGE INCURRED BY OPERATOR ARISING FROM USE OF THOSE SERVICES. CAKE IS NOT RESPONSIBLE FOR PAYMENT PROCESSOR SERVICES AND NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, EXPRESS OR IMPLIED, ARISES ON THE PART OF CAKE. OPERATOR’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST THE PAYMENT PROCESSOR AND OPERATOR HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST CAKE ENTITIES ARISING FROM USE OF PAYMENT PROCESSOR SERVICES.
4. Hardware and Installation
4.1. Acquisition of POS Hardware. The Cake Services may include the right to use certain point of sale or mobile hardware systems and related peripherals, including certain third party hardware and accessories, provided to Operator by Cake (“POS Hardware”). “POS Hardware” does not include any equipment used by Operator in connection with the Cake Service that Operator did not acquire from Cake or any POS Software (as defined below). POS Software is licensed, not sold, to Operator, and is subject to the applicable license terms in Section 7. The POS Hardware may include without limitation one or more card reader, router, cash drawer, kitchen display system, printer, or other hardware and a copy of related user documentation. The POS Hardware components may be sold to Operator or leased to Operator. Any POS Hardware components that are sold to Operator are “Purchased Hardware” and any POS Hardware components that are leased to Operator are “Leased Hardware.” The description of the POS Hardware components to be provided to Operator, applicable purchase or rental fees and, if applicable, the term of the rental period, is as set forth in the applicable Order. The use of Leased Hardware is subject to the POS Hardware Lease Terms (the “Lease Terms”). An amendment to an Order to add or remove POS Hardware may activate a new service term for the POS Service or result in a reduction in the fee for POS Hardware, as set forth in the applicable Order.
4.2. Installation Services. The set-up, surface-mounted cabling, and plug-in of POS Hardware (“Installation Services”) is required to use certain Cake Services. The Installation Services may be performed by Operator or a Third Party Provider (at fees charged separately by such Third Party Provider). Cake may from time to time recommend a Third Party Provider for Installation Services but disclaims any responsibility for any services provided or fees charged by any Third Party Provider. Further, from time to time Cake in its sole discretion may offer to directly coordinate Installation Services at pricing set forth in the applicable Order and in that case, the installation of each separate Workstation generally requires payment of an additional installation fee regardless of whether the installed POS Hardware is Purchased Hardware or Leased Hardware. “Workstation” means (a) a single point of sale system inclusive of POS terminal, cash drawer, and local receipt printer (a “POS Set”) or (b) a single unit of hardware (such as a remote prep printer) not installed immediately adjacent to a POS Set to the extent that either of the foregoing requires a separate, isolated cable pull terminated to a location different than that of another Workstation. Scheduled installations delayed due to Operator’s acts or omissions or cancelled with less than 48 hours’ notice may be subject to wait time or cancellation fees.
4.3. Use of POS Hardware. Operator must not use POS Hardware or the POS Software other than in a manner and for the use intended. Each item of POS Hardware must be operated carefully and properly in compliance with all applicable governmental, insurance, and manufacturer’s warranty requirements and all manufacturers’ instructions. In addition, Leased Hardware must be operated in compliance with the Lease Terms.
4.4. Remote Access to POS Hardware. Cake may from time to time with or without notice remotely access certain POS Hardware for purposes such as Operator support, installing software updates, risk analysis, and analyzing trends.
4.5. POS Hardware Returns and Limited Warranty. The cancellation, return and warranty terms of the POS Hardware are governed by the Hardware Return Policy and Limited Warranty.
4.6. Purchased Hardware. The following terms apply to Purchased Hardware.
4.6.1. General. Upon full payment for and acceptance of delivery of the Purchased Hardware, Operator will acquire ownership of and title to the hardware components of the Purchased Hardware. Any POS Software provided with the Purchased Hardware is subject to the applicable license terms in Section 7.
4.6.2. Payment Plans. If Purchased Hardware is made available to Operator subject to a payments plan (“Payments Plan”), then the terms of this Section will also apply. Operator will make installment payments for the Purchased Hardware as set forth in the Order. The Hardware Warranty will apply to Purchased Hardware subject to a Payments Plan so long as Operator is in good standing with respect to installment payments, however, regardless of whether Operator is paying pursuant to a Payments Plan or otherwise, Operator will bear all risk of loss, theft, destruction, or requisition of, or damage to Purchased Hardware. If Operator fails to pay when due any installment payment due under the Agreement prior to receipt by a Cake of full payment for the Purchased Hardware, and the failure continues for 30 days after the due date, Cake may take any actions permitted by law to exercise its rights under the Agreement.
4.7. Availability and Shipping. All hardware orders are subject to product availability. While Cake will try to meet any suggested shipment and delivery dates, inventory shortages at Cake’s distributor(s), carrier delays, and the date and time of acceptance by Cake of the Account Application or applicable Order may affect the ability or timing related to the fulfillment of an order. Cake is not liable for late shipment or delivery or any loss, damage, or penalty Operator incurs from any delay in shipment or delivery. Operator is responsible for shipping, freight, and insurance relating to acquisition of POS Hardware unless otherwise set forth in the Agreement. In addition, there may be occasions when Cake confirms an order but subsequently learns that it is unable to supply the POS Hardware due to its inability to manufacture or obtain a sufficient supply of products. Therefore, Cake reserves the right at any time to limit or change quantities available for purchase or lease or to cancel an order. If Operator’s order is cancelled, Cake will refund any amounts paid by Operator for the POS Hardware. If for some reason POS Hardware is not delivered or not delivered in good operating condition, in order to be eligible for a replacement product Operator must notify Cake within 30 days of making the applicable Order.
4.8. Legacy Rentals of Hardware. If: (a) Operator has use rights to Cake-supplied equipment that is peripheral to the point of sale terminal and card reader, such as cash drawers and printers pursuant to an agreement that Operator and Cake entered into prior to January 1, 2015 that specified that the equipment was rented to, rather than purchased by, Operator (the “Rented Peripheral Equipment”), and (b) Operator entered into a subsequent agreement (including an Order), on or after January 1, 2015 that specified revised subscription fees and a 12-month (rather than month-to-month) term, Cake hereby assigns, to the extent not already assigned, all ownership interest in the Rented Peripheral Equipment. The assignment is subject to the warranty and other terms and conditions of the Hardware Return Policy and Limited Warranty governing Cake Hardware, except that, for the purposes of any applicable warranty on the Rented Peripheral Equipment, the Warranty Period is deemed to have started on the date when the equipment was first delivered to Operator under the original agreement under which it was first provided to Operator.
4.9. Marks. Operator will not display marks or trade names of any third party on Cake-supplied POS Hardware nor alter or position any Cake-supplied POS Hardware in any manner so as to, in Cake’s reasonable judgment, disparage Cake or its products, services, or business partners, or create confusion as to the entity providing the Cake Services or POS Hardware.
5. Third Party Commerce Services
5.1. Generally. Cake may currently be bound by or in the future enter into commercial agreement(s) (to which Operator is not a party) (“Cake-TP Agreements”) with one or more third parties (“Third Party Providers”) to integrate the Cake Services with certain third party technology platform(s) (“TP Platforms”) in order to (a) enable access to the Cake Market Services by Operator or (b) facilitate the delivery of certain services, such as online ordering, payment, gateway, and decryption services that are supported by those TP Platforms. Operator’s access to the TP Platform(s) is subject to the restrictions set forth in this Section 5. To the extent there is explicit conflict between the terms of this Section 5 and those of a separate agreement between Operator and the Third Party Provider regarding the subject matter of the Cake Market Services or the applicable TP Platform or other agreement with a Third Party Provider related to the Cake Services (such as a payment processing agreement with a Payment Processor) (each, an “Operator-TP Agreement”), then the terms of the Operator-TP Agreement will control. EXCEPT AS MAY BE SPECIFIED IN THE APPLICABLE OPERATOR-TP AGREEMENT: (i) NO WARRANTY OF ANY KIND IS MADE TO OPERATOR BY THIRD PARTY PROVIDERS, INCLUDING WARRANTIES OF TITLE, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND (ii) THIRD PARTY PROVIDERS ARE NOT LIABLE TO OPERATOR FOR ANY DAMAGE CAUSED BY ERROR, OMISSION, OR INACCURACY IN THE APPLICABLE TP PLATFORM OR FOR LOSS OF REVENUES ASSOCIATED WITH ANY OUTAGE OR UNAVAILABILITY.
5.2. Support. Each Third Party Provider is responsible for providing support services directly to Operator (rather than via any Cake Services platform) only as set forth in the applicable Operator-TP Agreement.
5.4. Ownership. All title and Intellectual Property Rights in and to TP Platforms are owned by the applicable Third Party Provider, not by Operator, unless otherwise set forth in the applicable Operator-TP Agreement. Changes to TP Platforms may occur without notice.
6. Fees and Payment
6.1. Fees. Operator will pay the fees listed on the applicable Order for the Cake Service(s), Leased Hardware, and Purchased Hardware, as applicable (the “Fees”). Cake reserves the right to change recurring Fees for the Cake Services at any time in Cake’s sole discretion upon 30 days’ notice (which may be by email). Any change in Fees of more than 10% per year will give Operator right to terminate the Cake Service for which the fee has been increased as of the effective date of the fee increase, if Operator gives notice of that termination within 15 days of the notice of the fee increase. That termination will not affect Operator’s obligations with respect to any other Cake Services. Activation fees, including fees for equipment installation, are nonrefundable unless the parties otherwise agree in writing. Any early payment made by Operator in consideration for discounted pricing is non-refundable unless waived by Cake in a separate written agreement.
6.2. Payment. Fees are due and payable by Operator in accordance with the agreed-upon billing period. Fees for the purchase of Purchased Hardware and activation fees, such as installation fees, may be due immediately upon submission of the applicable Order. Operator authorizes Cake (or an authorized third party acting as an agent of Cake) to charge and will pay the Fees and understands and agrees that the Cake Services involve recurring charges to Operator’s payment card or deposit account. To stop recurring charges on a particular payment card or bank account please contact Cake at firstname.lastname@example.org.
Any portion of Fees not paid when due will accrue interest (accruing from the initial due date) at the lower of 1.5% per month or the maximum lawful rate until the Fees, and any accumulated interest, are paid in full. Failure to pay undisputed amounts owed and due on demand in full is a breach of the Agreement and may result, to the extent not prohibited by law, in: (a) the immediate termination of Operator’s access to the Cake Services and (b) the charge to Operator of additional fees arising from the collection of delinquent accounts, including collection agency fees, attorneys’ fees and expenses, costs of any legal proceeding, and any applicable interest. In its discretion, Cake may make appropriate reports to credit reporting agencies and law enforcement authorities regarding Operator’s accounts receivables and Fees due, and cooperate with them in any resulting investigation or prosecution.
6.3. ACH Transactions
6.3.1. Authorization. By the consent provided (if provided) on the Account Application, Operator hereby authorizes Cake and its affiliates to do the following until Operator revokes such authorization by reasonable notice to Cake:
(a) credit or debit amounts payable to or by Operator under the Agreement to or from any bank accounts designated by Operator for use under the Agreement (“Bank Accounts”); and
(b) initiate debits from or credits to Bank Account(s) to correct any errors or temporarily debit de minimis amounts to verify accuracy of account information.
For the avoidance of doubt, the foregoing authorization applies to recurring (such as monthly) Fees charged to Operator for Cake Services up until and through any Renewal Term (defined below). Operator’s obligations to pay Fees related to Cake Services provided under a subscription basis are continuous until cancellation of the Cake Services (as permitted under the Agreement).
For any transfer from or to a Bank Account that fails, Operator authorizes Cake to re-try the transfer within 30 days. If Cake is unable to obtain payment due to nonsufficient funds or refused payments, Cake may invoice Operator and charge a handling fee along with any fees incurred in connection with each attempt, in addition to the invoiced amount. That handling fee and fees incurred may also be debited from Bank Account(s). Operator will promptly notify Cake if it intends to change or close any Bank Account so as to afford Cake a reasonable opportunity to discontinue any prescheduled transfer. Cake will not be responsible for fees charged to Operator by its bank for nonsufficient funds.
Operator understands that this authorization will remain in effect until it cancels it in writing or Operator’s payment obligations under the Agreement terminate (whichever is earlier).
6.3.2. Collection Rights. Subject to Operator’s authorization of electronic funds transfer and applicable law, Operator hereby agrees that amounts, including recurring Fees, for which Operator is responsible under the Agreement may be deducted from its Bank Accounts.
6.4.1. Withholding Taxes. Cake may be required by tax authorities or law to withhold taxes on behalf of Operator. Cake reserves the right to deduct those taxes from amounts due to Operator and to remit them to the appropriate tax authority. Cake may also be required to report the withholding tax payments to the tax authorities.
6.4.2. Service and Hardware Taxes. Fees quoted on any Order or otherwise specified via the Account are exclusive of, and unless otherwise expressly specified, Operator is responsible for, all sales, use, excise, value added, and property taxes, e-waste recycling fees, and other taxes, duties, levies, or similar charges, however designated, that are levied by any governmental or taxing authority relating to the activities governed by the Agreement, including any taxes assessed or required to be collected, paid, or withheld in connection with Operator’s receipt of the Cake Services or POS Hardware (“Service and Equipment Taxes”), but excluding taxes in respect of Cake’s net income. Cake may its sole discretion calculate, collect, or pay estimated Service and Equipment Taxes and, if it does so, Cake reserves the right to charge and Operator will pay any Service and Equipment Taxes (in addition to Fees) as reasonably calculated by Cake. Calculation of Service and Equipment Taxes by Cake may be estimated at the time an Order is placed, based on, among other things, rates applicable to the billing address provided to Cake, and subsequently adjusted to conform to applicable law or regulation. For example, in certain jurisdictions, such as California, purchases of hardware may implicate an electronic equipment recycling fee (for which Operator is responsible) upon purchase.
6.4.3. Buyer Transaction Sales Tax Computation and Reporting. Operator is solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with Buyer transactions (“Transaction Taxes”). The Cake Services may charge and collect Transaction Taxes from Buyers as an agent on behalf of Operator or provide certain sales tax calculations (based on default settings or Operator instructions) with respect to transactions with Buyers as a convenience to Operator. However, these calculations cannot be relied upon as advice for tax purposes in any federal, state, or local jurisdiction. It is Operator’s sole responsibility to: (a) appropriately verify, input, and apply tax amounts and to apply the correct tax rates to determine what, if any, Transaction Taxes apply to payments Operator makes or receives, (b) comply with federal, state, and local tax record-keeping requirements, and (c) consult with accounting professionals as necessary on tax-related matters. It is Operator’s sole responsibility to collect, report, and remit the correct Transaction Taxes to the appropriate tax authority. Cake is not responsible for determining whether Transaction Taxes apply to Operator’s transactions with Buyers, or for collecting, reporting, or remitting any Transaction Taxes. Cake will not be liable for any owed taxes or fees or any losses or damages related to tax calculations in the Cake Services. For the avoidance of doubt, subject to applicable law, Cake is not obligated to, nor will it report or remit any Transaction Taxes to any tax authority. If fees imposed by Cake on any service, such as the Cake Order Service, are based on a percentage fee or subject to card processing fees, it is Operator’s obligation to ensure that the fee charged does not result in the diminishment of the amount of Transaction Taxes reported or remitted to any tax authority. Operator is solely responsible for maintaining any business records related to Operator’s sales and gross receipts. Operator may be asked to provide Cake with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Operator’s name for the value of payments made.
6.5. Net Settlement; Grant of Security Interest
6.5.1. Payment Processing Funds. To the extent permitted by law and in accordance with the Cake Payments Agreement, Operator authorizes Cake’s banking partners, without prior notice and irrespective of whether a demand for payments has been made under this Agreement or any other related agreements, to deduct or collect amounts corresponding to Fees owed under this Agreement from the funds payable to Operator arising from any (if any) settlement of payment processing funds arising from card transactions submitted by Operator through the Cake PayFac Services (if applicable). For the avoidance of doubt, in all cases you as Operator remain solely responsible for the delivery of goods and services purchased by Buyers and any such collection of Fees will not relieve Operator of its obligations to deliver those goods and services. This authorization will remain in effect until Cake receives notice from Operator terminating the authorization or Operator’s payment obligations under this Agreement terminate (whichever is earlier) and in such manner as to afford Cake a reasonable opportunity to act on it. Nothing in this section is intended to limit any rights Operator may have which may not be lawfully limited.
6.5.2. Purchased Hardware. To secure Purchased Hardware until Cake receives payment in full for the Purchased Hardware, Operator hereby grants Cake a security interest in all Purchased Hardware sold to Operator. The security interest will not apply if prohibited by applicable law or with respect to any Purchased Hardware purchased under a Payments Plan if it contravenes the terms and purposes of a bona fide conditional contract of sale. This security interest allows Cake to repossess Purchased Hardware if Operator fails to make full payment of the purchase price. Upon payment in full for any Purchased Hardware, Cake’s security interest in that Purchased Hardware is released automatically.
7. Licenses; Ownership; Proprietary Rights
7.1.1. “Authorized User” means any Person using the POS Software on Operator’s behalf or for Operator’s benefit.
7.1.2. “Documentation” means user manuals, technical manuals, and any other materials owned by Cake and provided by Cake to Operator, in printed, electronic or other form, that describe the installation, operation, use, or technical specifications of the POS Software or Cake Services.
7.1.3. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
7.1.4. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
7.1.5. “POS Software” means any software installed on or otherwise provided by Cake to Operator for use in connection with POS Hardware, including any updates to that software made available by Cake to Operator from time to time.
7.2. POS Software and Documentation. If Operator acquires POS Hardware from Cake, Cake hereby grants to Operator, during the Term, a limited, non-exclusive, revocable, non-sublicensable, non-transferable license under Cake’s Intellectual Property Rights in the POS Software and Documentation to use the POS Software and Documentation in connection with that POS Hardware solely: (a) by and through its Authorized Users, (b) in accordance with the Documentation, and (c) for commercial business purposes (i.e., not on a personal or consumer basis).
7.3. Third-Party Materials. The POS Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Cake and that are provided to Operator on Operator terms that are in addition to or different from those contained in the Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the POS Software and provided under Third-Party Licenses is as follows (as of the date of this version of the Terms): Ubuntu; Spring Framework; Symfony Framework; Google Guice; React; Apache; Jetty; Tomcat; Node Js; RabbitMq; MemCache; TeamViewer; IntelliJ; Atlassian Tools; Eclipse; CouchDB; MySQL; Hadoop; iOS; and Android. The applicable Third-Party Licenses are accessible via links from the web sites of those licensors. Operator is bound by and will comply with all Third-Party Licenses. Any breach by Operator or any of its Authorized Users of any Third-Party License is also a breach of the Agreement.
7.4. Responsibility for Use of Software. Operator is responsible and liable for all uses of the POS Software and Documentation through access provided by Operator, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Operator is responsible and liable for all actions and failures to take required actions with respect to the POS Software and Documentation by its Authorized Users or by any other Person to whom Operator or an Authorized User may provide access to or use of the POS Software or Documentation, whether that access or use is permitted by or in violation of the Agreement.
7.5. Prohibitions. Operator will use the Cake Services only for their applicable intended commercial purposes and in compliance with all privacy, data protection, intellectual property, and other applicable laws. Operator will not nor may it permit any third party to do any of the following: (a) modify, duplicate, sell, or create derivative works from Cake technology or materials, (b) load, install, or use any third party software onto the Cake Services or Leased Hardware other than software explicitly authorized by Cake; (c) use data mining or gathering devices on the Cake Services or otherwise access or monitor any material or information on the Cake Services or any Cake system using any manual process or robot, spider, scraper, or other automated means unless Operator has separately executed a written agreement with Cake referencing this Section that expressly grants Operator an exception to this prohibition; (d) enable functionalities that are otherwise disabled in the Cake Services; (e) reverse engineer the Cake Services (except to the extent that that restriction is prohibited by law); (f) interfere with the security of the Cake Services or prevent access to the Cake Services by Cake’s other users; or (g) otherwise use the Cake Services or Leased Hardware except as expressly allowed under the Agreement.
7.6. Intellectual Property Rights. Cake reserves all rights not expressly granted to Operator in the Agreement. The POS Software and Documentation are provided under license, and not sold, to Operator. Operator does not acquire any ownership interest in the POS Software or Documentation under the Agreement, or any other rights in the POS Software or Documentation other than to use the same in accordance with the license granted, and subject to all terms, conditions, and restrictions, under the Agreement. Cake and its licensors and service providers reserve and retain their entire right, title, and interest in and to the POS Software and all Intellectual Property Rights arising out of or relating to the POS Software, except as expressly granted to Operator in the Agreement. There are no implied rights of any kind. The Agreement does not grant you any rights to Cake’s trademarks or service marks.
7.7. Feedback. If Operator chooses to provide input and suggestions regarding problems with or proposed modifications or improvements to the Cake Services, POS Software, or Documentation (“Feedback”), then Operator hereby grants Cake an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Cake Services, POS Software, or Documentation and create other products and services, without notice, compensation or attribution to Operator or any other Person. Feedback is not subject to any obligation of confidentiality.
7.8. Materials. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Cake Services, POS Software, or Documentation (“Materials”) are protected by intellectual property and other laws. All Materials included in the Cake Services, POS Software, or Documentation are the property of Cake or its third-party licensors. Except as expressly authorized by Cake, Operator may not make use of the Materials. Cake reserves all rights to the Materials not granted expressly in the Agreement.
8. Generally Applicable Service Terms
8.1. Email and Text/SMS Marketing Communications. By providing Cake with Operator’s mobile telephone number or email address, Operator consents to receive email or text messages at that email address or number, as applicable, as requested for Account verification and other purposes related to the Cake Services, as well as messages from Cake and its business partners to promote services, products, and features related to the Cake Services that may be of interest to Operator or to solicit Operator’s opinion for market research purposes. While Cake does not charge a fee for text messages, Operator’s carrier may charge standard messaging, data, and other fees. Operator is responsible for these charges. Cake may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Cake is not responsible for the timeliness or final delivery of the messages, as this is out of Cake’s control and is the responsibility of the cellular telephone operator or other networks. To the extent Cake provides to Operator, or Operator receives through use of the Cake Services, any Buyer mobile phone numbers, Operator agrees to comply with all laws applying to electronic marketing when using any Buyer mobile phone number and, specifically, that Operator will: (a) use those Buyer mobile phone numbers only for sending informational text/SMS messages relating to the Cake Services and (b) not use those Buyer mobile phone numbers for any marketing or commercial purpose.
8.2. Receipts.Operator must comply with all applicable laws and regulations applying to receipts. As a convenience, but not in lieu of a written receipt, the POS Service may now or in the future offer Buyers a choice to sign-up to receive digital receipts (that may contain additional information or messages from Cake that may be of interest to Buyers) through email or text message. In that case, Operator is not permitted to add or modify any Buyer information or consent indication on behalf of the Buyer.
8.3. Compliance. Operator will at all times comply with any operating procedures, requirements, or guidelines regarding Operator’s use of the Cake Services that are made available. Operator will abide by all product licensing provisions or end user agreements imposed by the manufacturer or software publisher on the POS Hardware. Operator will not, and Operator will ensure that its agents, such as its employees, do not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the software provided with any Cake Service or POS Hardware or remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in proprietary software or hardware provided by Cake or a third party. Notwithstanding Operator’s use of the Cake Services to facilitate the management of any aspect of Operator’s business, Operator is solely responsible for compliance with all laws and regulations that are applicable to Operator’s business and Cake will not be responsible for Operator’s compliance failures. Operator is solely responsible for ensuring the accuracy of all business information and data that: (a) Operator provides to Cake or its service providers in connection with the Cake Service or (b) is incorporated into any Cake Services at Operator’s request.
8.4. Workforce Management. The Cake Services may provide certain workforce management features and calculations with respect to service gratuities/tips (based on default settings or Operator instructions). It is Operator’s responsibility to ensure those features and calculations comply with Operator’s practices and applicable laws and regulations. Operator must comply with applicable wage and hour laws and laws requiring timely and full distribution of tips. Tips are the property of the service and delivery workers who earn them and Operator generally has a legal obligation to remit all tips to those service and delivery workers. If fees imposed by Cake on any service are based on a percentage fee or subject to card processing fees, it is Operator’s obligation to ensure that the fee charged does not result in the diminishment of tips (except as permitted by law) provided to Operator’s service or delivery workers.
9. Confidentiality; Privacy; Use of Data
9.1. Generally. “Confidential Information” means information and materials related to Cake or the Cake Services, and all non-public, confidential or proprietary information of the Cake Entities, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Cake to Operator or otherwise obtained by Operator from Cake, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Agreement. “Confidential Information” does not include any information that Operator can demonstrate: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to Operator by Cake; (b) became publicly known and made generally available after disclosure to Operator by Cake through no action or inaction of Operator; or (c) was in the possession of Operator, without confidentiality restrictions, at the time of disclosure by Cake, as shown by Operator’s files and records. Confidential Information is, as between Cake and Operator, the sole property of Cake and may include valuable trade secrets of Cake. Operator will treat the Confidential Information as confidential and will not, without the express written consent of Cake: (i) use Confidential Information except for the purposes expressly permitted in the Agreement; (ii) distribute or market Confidential Information to any third party; (iii) disclose information relating to the documentation, performance, or quality of the Cake Services to any third party (except as permitted by law); or (iv) disassemble, decompile, or reverse engineer any portion of the Cake Services. The provisions of this paragraph are effective during the Term (as defined below) and for a period of two years after the Term, except that, for information that constitutes a trade secret under applicable law, the protection period is extended for so long as that information continues to qualify as a trade secret. Operator may disclose Confidential Information if and only to the extent required by law if Operator gives Cake prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
9.2. Disclosure of Operator Information. To the fullest extent permitted by applicable law, Cake may disclose information provided by Operator to third parties (such as financial institutions and payment processors) in order to, among other things, (a) comply with business partner requirements, (b) verify information about Operator and its qualification to use a Cake Service, (c) implement risk management controls, (d) ensure regulatory and related compliance, (e) analyze and evaluate the Cake Services, and (f) deliver and support the Cake Services. Cake may periodically conduct reporting to assess Operator’s on-going ability to meet the requirements to use the Cake Services.
9.5. Buyer Data. In using a Cake Service, Operator may receive information about Buyer or other third parties, such as names, mailing addresses, email addresses, phone numbers, payment card numbers and other financial account-related information, and purchasing preferences (all that data, “Buyer Data”). Operator will keep all Buyer Data confidential and will use Buyer Data solely for the purposes of (a) fulfilling the applicable Buyer’s transaction or experience; (b) complying with Operator’s obligations in the Agreement; or (c) complying with applicable law. Operator will not share or use any Buyer Data for marketing, advertising, or other commercial purposes without the express consent of the Buyer or other third party to which that Buyer Data relates. NOTWITHSTANDING THE CAPABILITY OF THE CAKE SERVICES TO COLLECT AND STORE BUYER DATA AND TO ALLOW BUYERS TO ELECT TO RECEIVE MARKETING MATERIALS FROM OPERATOR, APPLICABLE LAWS AND OPERATING RULES MAY LIMIT (i) THE USE OF THAT INFORMATION ONCE COLLECTED, EVEN IF BUYER HAS PROVIDED CONSENT, OR (ii) DISCLOSURE OF THAT INFORMATION TO THIRD PARTIES. Operator is solely responsible for compliance with any Privacy Obligations applicable to its use of a Cake Service and Buyer Data.
9.6. Audits. From time to time, Cake may require Operator to furnish financial and other information relating to Operator and its ability to fulfill its financial and other obligations under the Agreement. To facilitate that audit, Operator will, upon Cake’s request, make available books and records that pertain to Operator’s payment processing transactions and its compliance with the Agreement.
9.7. Compliance with Laws. Operator will comply with all applicable Privacy Obligations and represents that it has all necessary rights and consents under applicable law and all Privacy Obligations to disclose to Cake, or to allow Cake to collect, use, store, and disclose, any Buyer data provided to Operator or Cake or any information that Cake may collect directly from Operator’s web site end-users via cookies or other means. Operator further represents and warrants that Cake will not be in breach of any Privacy Obligations or applicable laws by collecting, receiving, using, and disclosing such information in connection with the Cake Services. Operator acknowledges and agrees that Cake may provide some or all of the Cake Services from systems located within the United States or countries outside of the United States and that it is Operator’s obligation to disclose, as applicable, to its Buyers that personal data from such Buyers may be transferred, processed, and stored outside of the United States and may be subject to disclosure as required by applicable law.
10. Term and Termination
10.1. Term of the Agreement. The initial term of the Agreement commences on the date the Agreement is first accepted by Operator and will continue in effect for the term identified on the Account Application or Initial Order (the “Initial Term”). Unless otherwise noted on the Account Application or applicable Order or as otherwise specified in the Agreement, after the Initial Term, the term of the Agreement will automatically renew on a month-to-month basis (each, a “Renewal Term,” and all Renewal Terms, if any, together with the Initial Term, the “Term”), unless and until: (a) Operator terminates the Agreement by giving written notice to Cake at least 30 days before the expiration of the Initial Term or then-current Renewal Term, as applicable, (b) the Agreement is terminated in accordance with the Agreement, or (c) the parties agree in writing to a revised Term. Operator has no right to use any of the Cake Services prior to the date the Account Application is accepted by Cake. If the Account Application is rejected by Cake, the Term will immediately terminate as of the date of that rejection. The termination of any Operator-TP Agreement does not affect the Term.
10.2. Term of Cake Services. The service term and renewal period applicable to each Cake Service (if different from the Term) is as set forth on the applicable Account Application or Order or otherwise specified via the Account. Subject to Cake’s right to change recurring Fees herein, renewal, if any, of access to any Cake Service (other than a Cake Service originated on a month-to-month Initial Term) will be at Fees equal to the higher of (a) the renewal rate set forth in the applicable Order and (b) Cake’s then-current monthly (i.e., no term commitment) pricing for the applicable Cake Service (or its reasonable equivalent if the service as originally contracted is no longer available) (the “Renewal Rate”) unless the parties otherwise agree in writing at the time of renewal. If, prior to the end of a service term period applicable to any Cake Service, (a) Operator terminates the Agreement in the absence of breach by Cake of the Agreement, (b) Cake terminates the Agreement pursuant to Section 10.3, or (c) Operator sells all or substantially all of its business assets and the Agreement is not assigned to and assumed by the acquirer of those assets with Cake’s written approval in accordance with Section 18.8, Operator is responsible for the Fees owed for the remainder of the term for that Cake Service.
10.3. Termination by Cake. Cake has the right to terminate the Agreement or any portion of the Agreement (e.g., the Lease Terms) or discontinue the Cake Services at any time with or without notice as a result of any of the following events effective immediately upon occurrence of any of the following events: (a) failure by Operator to provide the cooperation or assistance that is reasonably necessary to install applicable POS Hardware and otherwise activate the Cake Services within 30 days of the applicable activation date; (b) material failure by Operator in performing the Agreement (such as failing to pay amounts due or otherwise comply with the Agreement) or complying with any applicable law or Privacy Obligation; (c) Operator is in default under any other contract, agreement, or obligation with Cake or any affiliate of Cake whether that party is bound alone or with others; (d) irregular transactions by Operator, excessive chargebacks, or any other circumstances that, in Cake’s discretion, may present a material business risk to Cake; (e) Operator becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (f) Operator or a controlling Person is listed as a terminated or high risk merchant by a payment card association brand (such as Visa or MasterCard).
10.4. Termination by Operator. If Cake materially breaches any of the provisions of the Agreement and fails to cure that breach within 30 days of receipt of written notice from Operator specifying that material breach, Operator may terminate the Agreement or the applicable addendum that was breached immediately at the expiration of the 30-day cure period. In addition, from time to time, Cake may in its sole discretion offer certain Operators the option to pay a cancellation fee (an “Early Termination Fee”) at any time during the Term as an alternative to performance in connection with certain Cake Services. In such cases and solely to the extent such option is explicitly set forth in the applicable Order for the applicable Cake Service(s), Operator may terminate the applicable Cake Services or the applicable Order by paying the Early Termination Fee specified in the applicable Order, in addition to all other amounts that are outstanding on the effective date of termination.
10.5. Effect of Termination. If the Agreement is terminated or suspended for any reason: (a) Operator’s Cake account is also terminated and Operator must cease using any Cake Service, (b) any licenses provided to Operator under the Agreement will end, (c) Cake has the right (but has no obligation) to delete all Operator information and any data, including transactional data, stored on servers controlled by Cake (except as prohibited by law), (d) Cake will not be liable to Operator or any third party for termination or suspension of access to the Cake Services or for deletion of any information associated with Operator’s account, except that Cake will provide a pro-rated refund of Fees already paid for Cake Services not yet delivered if Cake terminates the Agreement or Cake Services for reasons not within Operator’s reasonable control, and (e) those terms that by their nature are intended to survive termination (such as intellectual property ownership, arbitration obligations, indemnification obligations, limitations of liability, and obligations to pay any Fees or costs accrued prior to the effective date of the termination and any other amounts owed by Operator to Cake, including claims, fines, penalties, and other liability incurred by Cake caused by Operator’s use of the Cake Service) will survive. If Operator was provided rights to use Cake-owned equipment under the Agreement, notwithstanding any termination, Operator’s bank account(s) debit authorization and obligations to pay any monthly Fees will not expire until Operator fulfills its obligations as set forth in the Lease Terms. The termination of the Agreement does not terminate any agreement between Operator and any third party and therefore does not relieve Operator of any obligations it may have under third party agreements, including agreements with any Payment Processor or Third Party Provider of Cake Market Services.
11. Operator Warranties
Operator covenants that it will: (a) honor the terms of all offers made in connection with any Cake Service in a professional manner, (b) not impose any term on any offer that is in violation of applicable law, (c) have and grant sufficient Intellectual Property Rights in any content that it provides to Cake (including any logo or photograph) to allow Cake to display that content on the Cake Services and as otherwise necessary to promote and fulfill any offers, (d) comply with all applicable laws, regulations, and ordinances, including those relating to collection and use of personal information from Buyers, (e) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Agreement, (f) ensure that the prices charged for Operator Goods (as defined below) through the Cake Services do not exceed those ordinarily charged for orders directly with Operator, and (g) assume all risks associated with the contact of Operator (and its agents) with property and Persons, and indemnify Cake for any and all claims relating thereto against Cake. Operator is responsible for all liability associated with the fulfillment of orders and promotions of any of its products or services, including food and any drink (such as alcohol and any age screening in connection thereto), payment of sales tax to the appropriate taxing authority, delivery service, compliance with appropriate health codes if applicable, and all matters concerning the condition of the subject product or service. Operator will not resell Cake Services on behalf of any nonaffiliated third party nor use the Cake Services to process funds for any nonaffiliated third party.
Operator represents and warrants that it has the right, power, and ability to enter into and perform the Agreement, the Agreement does not cause the breach of any agreement Operator has with a third party, and Account and Account Application information provided to Cake is accurate in all respects. Operator further represents and warrants that: (i) any sales transactions with a Buyer will represent a bona fide sale; (ii) any sales transactions submitted will accurately describe the goods or services sold and delivered to Buyer; and (iii) Operator will fulfill all obligations to each Buyer for which it enters into a transaction and will resolve any consumer dispute or complaint directly with that Buyer.
12. Terms of Agency
12.1. Appointment. Operator appoints Cake as its agent for the purposes of promoting Operator’s goods and services (“Operator Goods”) to Buyers on any Cake Service such as Cake Gift Cards and the Cake Order Service through any platform, including its affiliates and business partner network. The Operator will provide Cake with the Operator’s current menu (the “Restaurant Menu”), in such format as is requested by Cake for Cake’s inclusion in the Cake Services. Operator Goods may be offered to all or part of Cake’s consumer base or its affiliates’ consumer base or business partner network and segmented by various variables including gender, age, location, and consumer preferences. Any advertising by Cake of Operator is with the intent to benefit Operator and Cake will exercise due care and good faith when promoting Operator’s goods or services.
12.2. Customer Service. Operator is solely responsible for all customer service issues relating to its goods or services, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Operator personnel, policies, or processes. In performing customer service, Operator will always present itself as a separate entity from Cake.
12.3. Publicity. Operator grants Cake, its affiliates, and any third party service providers designated by Cake: (a) a non-exclusive, nontransferable, perpetual worldwide license to use Operator’s trade names, trademarks, logos, service marks, and other identifying marks and (b) an exclusive, nontransferable, perpetual worldwide right to use Operator’s menus, marketing materials, and photographs of Operator’s business or merchandise (so long as, in the case of photographs of Operator staff or owners, the taking of the photograph was authorized by Operator) each for the purposes of any promotion (such as marketing or advertising) of Operator in connection with the services, products, and business of Cake or any its direct and indirect affiliates in on-line or off-line form. That promotion may include advertisements and other marketing materials shared publicly or with targeted third parties such as prospective Cake customers.
12.4. Changes. Operator will promptly notify Cake in writing of any changes to its products or services (such as items on a Restaurant Menu and associated prices) to the extent applicable to the Agreement.
13. Data Ownership and Information Security
13.1. Data Ownership.
13.1.1. Cake Data. Cake and its business partners own all information that is: (a) directly submitted to the Cake Services by Buyers or prospective Buyers (including personally-identifying and financial information, such as transaction data submitted to Cake’s web sites and related online applications (including mobile applications); or (b) provided to Operator as part of the Cake Services that is not sourced from Operator Data (as defined below) (collectively, that data is “Cake Data”). Operator may use Cake Data distributed to Operator solely to the extent necessary to: (i) perform the Agreement, (ii) comply with any legal requirements, or (iii) process or promote Buyer transactions as specifically provided for by the Agreement, except that Operator will not share any Cake Data with any third party that is not a Buyer without Cake’s prior written consent.
13.1.2. Operator Data. Operator authorizes Cake to access business, financial, and other information about Operator or its transactions with Buyers collected or generated in connection with the Cake Services or the Agreement, including: (a) any information provided to Cake by Operator to Cake during the Account Application process or thereafter, (b) any and all credit card transaction and fees and related sales processing data collected by Cake or Operator’s Payment Processor, and (c) online performance data received from Operator’s account on a third party site or service (such as Facebook, Twitter, or a third party site or service managed by Cake on Operator’s behalf) (collectively, “Operator Data”). Operator hereby grants Cake an irrevocable, worldwide, royalty-free, transferable, and sublicensable right and license to use, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise exploit Operator Data (including data formulated or derived from Operator Data), directly or indirectly, in any form and authorizes any third party, including any Payment Processor, that independently collects Operator Data from Operator (each, an “Other Operator Data Licensee”) to grant Cake access to and use of that data. Each Other Operator Data Licensee is a beneficiary under this Section 13.1.2. The foregoing grant includes the right for Cake to share Operator Data with third parties for any reason related to the provision of the Cake Services or the promotion of the services, products, or businesses of Cake and its direct and indirect affiliates (including parent and subsidiary companies). Any Operator Data that is aggregated in a de-identified format such that neither Operator nor its Buyers may be practicably identified will be owned by Cake or its business partners and may be used and shared by Cake in any manner in its discretion.
13.1.3. Sysco Operators and Sysco Projects. Without limiting Section 13.1.2 and, for the avoidance of doubt, in connection with certain projects (“Sysco Projects”) performed by Cake and its strategic partner, SYSCO Corporation and affiliates (“Sysco”), Operator authorizes Sysco to access and use, and Cake to share with Sysco and use, Operator Data for any reason related to the Sysco Projects.
13.2. Information Security and Data Storage. Operator is responsible for compliance with the Payment Card Industry Data Security Standards (“PCI DSS”) and the Payment Application Data Security Standards (“PA DSS”), as applicable. Operator will promptly provide Cake with documentation evidencing compliance with PCI DSS or PA DSS upon Cake’s reasonable request. Without limiting the disclaimers in these Terms, Cake will use commercially reasonable efforts to comply with applicable privacy laws regarding the security of personal information obtained from Operator. Cake does not represent, warrant, or guarantee that unauthorized third parties will be unable to defeat Cake’s security measures or use Operator’s personal information for improper purposes. Operator acknowledges that Operator provides personal information to Cake at Operator’s own risk. Operator is responsible for ensuring its payments and data systems are fully protected against unauthorized breaches and maintaining backups of Operator Data at all times. While Cake may archive certain Operator Data while the Account is active and not in default, if there is any loss of Operator Data, Operator’s exclusive remedy is for Cake to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Operator Data that Cake has maintained in accordance with its ordinary storage procedures. Without limiting any of the foregoing, Operator is solely responsible for archiving Operator Data for use after the close of an Account.
13.3. Security Incidents. If Operator or any Operator personnel discovers or is notified of a breach or potential breach of security or of any safeguards relating to personal information (each, a “Data Incident”), Operator will immediately (and in no event beyond 24 hours of the discovery of that Data Incident): (a) notify Cake of that Data Incident; (b) investigate, mitigate, minimize any damage from, and remediate the effects of, the Data Incident, consistent with any guidelines or requests reasonably made by Cake; (c) provide Cake with detailed information about the Data Incident, with all details as may be requested by Cake, at any frequency as may be requested by Cake; (d) permit Cake and its designees, upon Cake’s request, to participate in the investigation and remediation of the Data Incident; (e) promptly provide Cake with reasonable assistance in any efforts by Cake and its designees to investigate, mitigate, or remediate the effects of the Data Incident, and in responding to any dispute, inquiry, or claim relating to the Data Incident; and (f) provide Cake with assurance satisfactory to Cake that the Data Incident will not recur. To the extent any Data Incident is attributable to Operator or to Operator’s personnel, including Operator’s failure to perform its obligations pursuant to these Terms, Operator will cure that Data Incident at its own cost and expense. In addition, Operator will review its information security practices on a regular basis and notify Cake of security concerns of which Operator becomes aware that may have an adverse effect on Operator (including any Operator affiliates), and Operator will thereafter provide Cake with a written action plan satisfactory to Cake that addresses those security concerns. Without limiting any other rights or remedies of Cake, if in connection with any Data Incident or any act or omission of Operator or any Operator personnel, notice to any individuals, legal authorities, or other third parties of any actual or suspected unauthorized access to or use of personal or sensitive information, or of any other event or circumstance requiring that notice, is required under any law applicable to Cake or Operator, or Cake otherwise determines in its sole discretion that notice of that event or circumstance is Operator reasonably necessary (each, a “Notification Event”), Operator will (i) assist Cake in notifying those third parties of the Notification Event, and communicating with and assisting those third parties regarding the Notification Event; and (ii) if requested by Cake, provide notice of the Notification Event to all persons and entities as may be requested by Cake. The content of any statements, communications, notices, filings, or reports by or for Operator related to any Notification Event, including those required by law, must be provided to Cake within a reasonable time before any publication or release. All disclosures, filings, public statements, press releases, and notifications by or for Operator that relate to any Notification Event that either (1) Operator intends to be available to Cake users, customers, or employees, or (2) reference Cake in any manner, must be approved by Cake prior to release. Operator will be responsible for any costs of Cake in connection with any notification to third parties or any other activities relating to any Data Incident or Notification Event, including costs of notifying consumers or other third parties, providing call center services, providing credit monitoring services, and taking other steps to mitigate or remediate the effects of any Data Incident or Notification Event.
Operator will defend, indemnify, and hold harmless Cake and its indirect or direct subsidiary, parent or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, the “Cake Entities”) from and against all claims, liabilities, damages, losses, expenses, tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees and costs) arising out of or in any way connected with any claim, action, audit, investigation, inquiry, or other proceeding instituted by a Person that arises out of or relates to: (a) Operator’s access to, use of, or alleged use of, the Cake Services; (b) any actual or alleged violation of Operator’s representations, warranties, agreements, or obligations referenced in the Agreement or any applicable law or regulation; (c) any actual or alleged violation of Cake’s policies or applicable policies of its business partners or payment card association rules; (d) any claim for state sales, use, or similar tax obligations of Operator arising from Buyer transactions; (e) wrongful or improper use of any Cake Service by or on behalf of Operator; (f) Operator’s violation of any rights of a third party, including any Intellectual Property Right or publicity, confidentiality, other property, or privacy right; (g) Operator’s violation of any federal, state, or local law, rule, or regulation, including any applicable data privacy or security laws, any laws governing gift cards, and any law or regulation governing the use, sale, and distribution of alcohol, or any other Operator goods or services; (h) any dispute between Operator and a Buyer, including a dispute arising from any of Operator acts or omissions in connection with Buyer payment transactions or the accuracy or quality of any Operator product, content, goods or service; (i) any claim alleging or arising out of Operator’s misuse of Buyer Data; (j) declined or unauthorized transactions made in Offline Mode; (k) failure of Operator to honor in its obligations with respect to gift cards issued in connection with Cake Gift Cards or the use or misuse of Cake Gift Cards; or (l) any dispute or issue between Operator and any third party. Cake maintains the right to control its own defense and to choose its own legal counsel in any matter subject to the foregoing indemnification, regardless of any conflict of interest between Cake and Operator, and Operator will cooperate with Cake’s defense of the claim.
EXCEPTING THE HARDWARE WARRANTY SPECIFIED IN SECTION 4.5, THE CAKE SERVICES, POS HARDWARE, AND OTHER HARDWARE, MATERIALS, OR TECHNOLOGY MADE AVAILABLE BY CAKE TO OPERATOR UNDER THE AGREEMENT, THROUGH THE CAKE SERVICES, OR PROVIDED INCIDENTALLY TO THE AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND THE CAKE ENTITIES HEREBY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO OPERATOR OR ANY OTHER PERSON REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE). OPERATOR’S ACCESS TO AND USE OF THE CAKE SERVICES, ANY WEBSITES OR MATERIALS LINKED TO ANY CAKE SERVICES, OR POS HARDWARE IS AT OPERATOR’S OWN RISK. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE STATED IN THE AGREEMENT, THE CAKE ENTITIES AND THEIR BUSINESS PARTNERS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CAKE SERVICES OR THE CONTENT OF ANY WEBSITES OR MATERIALS LINKED TO THE CAKE SERVICES. THE CAKE ENTITIES DO NOT WARRANT THAT THE CAKE SERVICES OR ANY PORTION OF THE CAKE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE CAKE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OPERATOR FROM THE CAKE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE CAKE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE CAKE ENTITIES OR THE CAKE SERVICE THAT IS NOT EXPRESSLY STATED IN THE AGREEMENT. OPERATOR ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM OPERATOR’S USE OF OR ACCESS TO THE CAKE SERVICES OR POS HARDWARE, OPERATOR’S DEALING WITH ANY THIRD PARTY IN CONNECTION WITH THE CAKE SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE CAKE SERVICES. OPERATOR IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO OPERATOR’S PROPERTY (INCLUDING OPERATOR’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE CAKE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE CAKE SERVICES OR THE DOWNLOAD OR USE OF RELATED MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND OPERATOR MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability
16.1. Generally. Please read this Section 16 carefully since it limits the liability of the Cake Entities. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Nothing in this Section 16 is intended to limit any rights Operator may have that may not be lawfully limited.
16.2. Limitation of Liability. NO CAKE ENTITY WILL BE LIABLE TO OPERATOR OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE CAKE SERVICES OR OTHERWISE ARISE IN CONNECTION WITH THE AGREEMENT. UNDER NO CIRCUMSTANCES WILL ANY CAKE ENTITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE CAKE SERVICES OR THE ACCOUNT, OR THE INFORMATION CONTAINED IN THE ACCOUNT OR ACCESSIBLE VIA THE CAKE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE CAKE ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (a) LOSS OF PAYMENT TRANSACTIONS OR LOSS OF DATA, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM OPERATOR’S ACCESS TO AND USE OF ANY CAKE SERVICE OR POS HARDWARE, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF CAKE’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED ON THOSE SYSTEMS, (d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE CAKE SERVICES OR POS HARDWARE, (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE CAKE SERVICES OR POS HARDWARE BY ANY THIRD PARTY, (f) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT MADE AVAILABLE VIA THE CAKE SERVICES OR POS HARDWARE, OR (g) OPERATOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
NO CAKE ENTITY OR ANY OF THEIR PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) WILL BE LIABLE TO OPERATOR FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO CAKE PURSUANT TO THE AGREEMENT FOR THE APPLICABLE CAKE SERVICES OR POS HARDWARE RELATING TO THE CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN THE SIX MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
OPERATOR RECOGNIZES AND CONFIRMS THAT IF IT INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE CAKE SERVICES OR CAKE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO OPERATOR ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE IT TO AN INJUNCTION, AND IT WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE CAKE SERVICES.
IF OPERATOR IS A CALIFORNIA RESIDENT, OPERATOR WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
16.3. Third Party Disputes. ANY DISPUTE OPERATOR HAS WITH ANY CARRIER, THIRD PARTY PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE CAKE SERVICES, IS DIRECTLY BETWEEN OPERATOR AND THAT THIRD PARTY, AND OPERATOR IRREVOCABLY RELEASES THE CAKE ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
17. Dispute Resolution and Arbitration
17.1. Generally. In the interest of resolving disputes between Operator and Cake in the most expedient and cost effective manner, Operator and Cake agree that every dispute arising in connection with the Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The Agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. OPERATOR UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THE AGREEMENT, OPERATOR AND CAKE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2. Exceptions. Despite the provisions of Section 17.1, nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3. Arbitrator. Any arbitration between Operator and Cake will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cake.
17.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). Cake’s address for Notice is: Cake Corporation, 101 Redwood Shores Pkwy, Suite 200, Redwood City, CA 94065. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Operator or Cake may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Operator or Cake must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Operator’s favor, Cake will pay Operator the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Cake in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
17.5. Fees. If Operator commences arbitration in accordance with the Agreement, Cake will reimburse Operator for Operator’s payment of the filing fee, unless Operator’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, Operator may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Operator’s billing address. If the arbitrator finds that either the substance of Operator’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Operator will reimburse Cake for all monies previously disbursed by it that are otherwise Operator’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6. No Class Actions. OPERATOR AND CAKE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Operator and Cake agree otherwise, the arbitrator may not consolidate more than one Person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.7. Modifications to this Arbitration Provision. If Cake makes any future change to this arbitration provision, other than a change to Cake’s address for Notice, Operator may reject the change by sending Cake written notice within 30 days of the change to Cake’s address for Notice, in which case Operator’s account with Cake will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Operator rejected will survive.
17.8. Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 is null and void, the remaining provisions of these Terms will remain in effect in accordance with Section 18.3, and the exclusive jurisdiction and venue described in Section 18.7 will govern any action arising out of or related to the Agreement.
18.1. Entire Agreement. The Agreement, along with any applicable policies and agreements made available at Cake’s websites or Operator portal(s) incorporated into the Agreement by express reference (such as the Lease Terms if applicable) and any exhibits, appendices, addenda, schedules, and amendments explicitly made to the Agreement, sets forth the entire understanding between Operator and Cake with respect to Operator’s use of the Cake Services, and supersedes any and all other agreements, oral or in writing, including any agreements as to pricing, implementation schedules, or future releases of services, related to the Cake Services, unless made in writing and expressly incorporated into the Agreement. Notwithstanding the foregoing, an updated version of these Terms or any other portion of the Agreement (including any version made available to Operator by written communication or by notice at Cake’s websites or Operator portal(s)) prevail over previous versions. Any purchase order or similar document that Operator may issue in connection with the Agreement will be for ordering purposes only and any terms and conditions on that purchase order or other document will be of no force or effect.
18.2. Waiver. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will 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. NOTHING IN THE AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO OPERATOR.
18.3. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, that invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable that term or provision in any other jurisdiction.
18.4. Disclosures and Notices and E-Sign Consent. Cake may provide disclosures and notices regarding the Cake Services (including Leased Hardware), the Agreement, or the Account to Operator electronically by posting it to the “Restaurant Admin” merchant portal or its equivalent (the “Portal”) or Cake’s website, or by emailing it to an email address listed in Operator’s account. Those electronic disclosures and notices will have the same meaning and effect as if Operator was provided with physical copies. Those disclosures and notices are considered received by Operator within 48 hours of the time posted or emailed to Operator unless Cake receives notice of non-delivery. Operator should review the Portal on a regular basis to review the prevailing disclosures and notices and check for updates. It is Operator’s responsibility to keep email address(es) valid and active and to monitor the email account(s). Cake will not be liable to Operator or any third party for any losses resulting from Operator’s failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, Operator should contact email@example.com.
18.5. Attorneys’ Fees. Operator will pay Cake all reasonable costs and expenses, including attorneys’ fees and court costs, incurred by Cake in exercising any of its rights or remedies under the Agreement or enforcing any of the terms, conditions, or provisions of the Agreement.
18.6. Excused Non-Performance. Cake will not be liable or responsible to Operator, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent that failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Cake including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage except that, if the event in question continues for a continuous period in excess of 30 days, Operator will be entitled to give notice in writing to Cake to terminate the Agreement.
18.7. Governing Law. The Agreement is governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under the Agreement, then Operator and Cake will submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute.
18.8. Change in Ownership; Assignment. Operator will not assign or transfer its benefit or obligations under the Agreement without Cake’s prior written consent. Any sale or transfer of the equity interests of Operator’s business such that the holders of the equity interests of Operator’s business as of the date of the Initial Order do not own more than 50% of the equity interests immediately after such transfer shall be deemed an assignment of this Agreement. Cake may assign any or all of its rights under the Agreement in its sole discretion. Subject to the foregoing, the Agreement is binding upon the parties and their successors and assigns (including those by merger and acquisition). Any permitted assignee of or successor entity to Operator must provide any additional information and execute any additional documentation or take any further actions as Cake may request in order to ensure continued provision of services under the Agreement (a “Permitted Assignment”).
18.9. No Third-Party Beneficiaries. Subject to the last sentence of this Section 18.9, the Agreement benefits solely the parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement. The parties hereby designate the Cake Entities as third-party beneficiaries of Sections 9.1, 13.1, and 16, having the right to enforce Sections 9.1, 13.1, and 16.
18.10. Agreement Changes. Cake has the right to change or add to the terms of the Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Cake Services or POS Software (an “Agreement Change”) with notice that is reasonable in light of the circumstances, such as by updating the Terms on the Portal or on any website maintained or owned by Cake for the purposes of providing services under the Agreement. Operator understands the importance of regularly reviewing these Terms and other portions of the Agreement as updated on the Portal. Use of the Cake Services after notice of any Agreement Change will confirm that Operator have read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Operator’s acceptance of the changed Cake Service. Notwithstanding the foregoing, (a) any dispute between the parties that arose before the effective date of an Agreement Change is governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose and (b) if an Agreement Change negatively and materially impacts Operator’s rights under the Agreement, and Cake does not waive the applicability of those changes to Operator, Operator may terminate the Agreement by providing written notice thereof to Cake, and in that event, is released from any payment obligations under the Agreement except for outstanding fees owed (those fees include any and all amounts owed for Purchased Hardware purchased prior to the effective date of the Agreement Change) and must immediately return any Leased Hardware to Cake. That notice must be given within 30 days following the date of notice by Cake of the Agreement Change.
18.11. Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing. Notices to Cake must be addressed to the address specified in Section 17.4. Notices to Operator will be sent to Operator’s then-current address specified in the Account. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid), except for notices that the Agreement specifies may be provided by email or other means, including as specified in Section 18.4. A notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements.
18.12. Interpretation. Section headings are used in the Agreement for convenience of reference only and will not affect the meaning of any provision of the Agreement. For purposes of the Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; and (c) the word “or” is used in the inclusive sense of “or” and the terms “or,” “any,” and “either” are not exclusive. No ambiguity will be construed against any party based on a claim that the party drafted the language.