Menu Sherpa

MENU SHERPA RESTAURANT PARTNER

SAAS AGREEMENT TERMS AND CONDITIONS

Last Revised: April 1, 2021

THE FOLLOWING TERMS AND CONDITIONS SHALL GOVERN MENU SHERPA'S RELATIONSHIP AND AGREEMENT IN EFFECT WITH EACH RESTAURANT PARTNER OF THE MENU SHERPA APPLICATIONS, AS SET FORTH (AND EXCEPT TO THE EXTENT OTHERWISE AGREED TO) IN EACH RESTAURANT PARTNER'S APPLICABLE SAAS AGREEMENT IN PLACE WITH MENU SHERPA, AS MAY BE AMENDED (THE “AGREEMENT”). ANY REFERENCE TO THE AGREEMENT IN THESE TERMS AND CONDITIONS SHALL BE DEEMED TO INCORPORATE THESE TERMS AND CONDITIONS BY REFERENCE.

1. Definitions.

(a) "Aggregated Statistics" means data and information related to Restaurant Partner's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) "Authorized User" means Restaurant Partner's employees, consultants, contractors, and agents (i) who are authorized by Restaurant Partner to access and use the Services under the rights granted to Restaurant Partner pursuant to the Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) "Documentation" means Provider's user manuals, instructions, guides or other related documentation or materials relating to the Services as provided or made available to Restaurant Partner or End Users by Provider in digital or print form.
(d) “End User(s)” means those direct customers and consumers of Provider and its Menu Sherpa product offering.
(e) “Provider” means The Millson Group, LLC d/b/a Menu Sherpa, a Tennessee limited liability company with offices located at 1962 Evelyn Avenue, Memphis, Tennessee 38104.
(f) "Provider IP" means the Services, the Documentation, and any and all intellectual property incorporated therein or otherwise provided to Restaurant Partner or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Restaurant Partner's access to or use of the Services, but does not include Restaurant Partner Data.
(g) "Restaurant Partner Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Restaurant Partner or an Authorized User through the Services.
(h) "Services" means the restaurant menu selection software-as-a-service offering known as “Menu Sherpa”, together with additional data analytics services (where applicable), as more fully described in Section 2 of the Agreement.
(i) Terms not otherwise defined herein shall have the meaning and definition ascribed to them as set forth in the Agreement.

2. Access and Use.

(a) Provision of Access. Subject to and conditioned on Restaurant Partner's payment of Fees and compliance with all other terms and conditions of the Agreement, Provider hereby grants Restaurant Partner a non-exclusive, non-transferable (except in compliance with Section 11(j) of these Terms and Conditions) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Restaurant Partner's internal use with respect to access to features of the Service that allow Restaurant Partner to customize of update its offerings as made available to Provider’s End Users. Provider shall provide to Restaurant Partner the necessary passwords and network links or connections to allow Restaurant Partner to access the Services.
(b) Documentation License. Pursuant to the Agreement and subject to these Terms and Conditions, Provider hereby grants to Restaurant Partner a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Restaurant Partner's internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Restaurant Partner shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Restaurant Partner shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, including but not limited to any attempt to determine the source code (or the underlying ideas, algorithms, structure, or organization) of the Services; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services to store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violations of third-party privacy or intellectual property rights; (vi) use the Services to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (viii) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Restaurant Partner in this Agreement. Except for the limited rights and licenses expressly granted under Restaurant Partner’s Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Restaurant Partner or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in the Agreement, Provider may temporarily suspend Restaurant Partner's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Restaurant Partner's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Restaurant Partner, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Restaurant Partner has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Restaurant Partner or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Restaurant Partner to access the Services; or (iii) in accordance with Section 4(a)(iii) of these Terms and Conditions (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Restaurant Partner and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Restaurant Partner or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, Provider may monitor Restaurant Partner's use of the Services and collect and compile Aggregated Statistics. As between Provider and Restaurant Partner, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Restaurant Partner acknowledges that Provider may compile Aggregated Statistics based on Restaurant Partner Data input into the Services. Restaurant Partner agrees that Provider may (i) make Aggregated Statistics available to other partners, providers, vendors or customers of Provider (in their aggregated, de-identified form only) in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

3. Restaurant Partner Responsibilities. Restaurant Partner is responsible and liable for all uses of the Services and Documentation resulting from access provided by Restaurant Partner, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Restaurant Partner is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Restaurant Partner will be deemed a breach of the Agreement by Restaurant Partner. Furthermore, Restaurant Partner shall be directly and solely responsible to Provider and each End User for the accuracy and complete disclosure of all applicable information uploaded into or provided through the Services (e.g. full disclosure of ingredients of menu items for purposes of identifying an End User’s preferences, food allergies, food sensitivities, cooking methods or other health or safety disclosures, claims or considerations). Restaurant Partner shall use commercially reasonable efforts to make all Authorized Users aware of the Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

4. Fees and Payment.

(a) Fees. Restaurant Partner shall pay Provider the fees ("Fees") as set forth in the Agreement without offset or deduction. Restaurant Partner shall make all payments hereunder in US dollars on or before the effective date of each Term period. If Restaurant Partner fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Restaurant Partner shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Restaurant Partner's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Restaurant Partner under the Agreement are exclusive of taxes and similar assessments. Restaurant Partner is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Restaurant Partner hereunder, other than any taxes imposed on Provider's income.

5. Confidential Information.From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership; Feedback.

(a) Provider IP. Restaurant Partner acknowledges that, as between Restaurant Partner and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Services and all Provider IP.
(b) Restaurant Partner Data. Provider acknowledges that, as between Provider and Restaurant Partner, Restaurant Partner owns all right, title, and interest, including all intellectual property rights, in and to the Restaurant Partner Data. Restaurant Partner hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Restaurant Partner Data and perform all acts with respect to the Restaurant Partner Data as may be necessary for Provider to provide the Services to Restaurant Partner, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Restaurant Partner Data incorporated within the Aggregated Statistics.
(c) Feedback. If Restaurant Partner or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Restaurant Partner hereby assigns to Provider on Restaurant Partner's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

7. Limited Warranty and Warranty Disclaimer.

(a) Provider warrants that the Services will be provided in compliance with all applicable laws and Provider will make commercially reasonable efforts to conform in all material respects to industry standards with respect to access and use of the Services when accessed and used in accordance with the Documentation. Notwithstanding the foregoing, Provider does not make any representations or guarantees regarding any specific uptime or availability of the Services unless otherwise specifically identified herein. Restaurant Partner's sole and exclusive remedy for any breach of warranty by Provider under the Agreement shall be Restaurant Partner’s right to terminate the Agreement and recoup a reasonable amount of Service fees paid but unearned as a result of the applicable breach of warranty, not to exceed an amount no greater than twelve (12) months' fees paid under the Agreement.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(A) ABOVE, THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(A), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET RESTAURANT PARTNER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Indemnification.

(a) Provider Indemnification.

(i) Provider shall indemnify, defend, and hold harmless Restaurant Partner from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Restaurant Partner resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with the Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Restaurant Partner promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Restaurant Partner agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Restaurant Partner to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate the Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Restaurant Partner.
(iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Restaurant Partner Data.

(b) Restaurant Partner Indemnification. Restaurant Partner agrees to indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Restaurant Partner Data, or any use of the Restaurant Partner Data in accordance with the Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Restaurant Partner's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by the Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Restaurant Partner may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 8 SETS FORTH RESTAURANT PARTNER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 8 EXCEED $100,000.

9. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THREE TIMES THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PROVIDER UNDER THE AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100,000, WHICHEVER IS LESS.

10. Termination. The Term set forth in the Agreement shall be subject to and conditioned upon the following termination rights of the Parties:

(a) Provider Termination: Provider may terminate the Agreement, effective on written notice to Restaurant Partner, if Restaurant Partner: (A) fails to pay any amount when due hereunder, and such failure continues more than 5 days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) (Use Restrictions) or Section 5 (Confidentiality);
(b) Termination for Breach: either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 10 days after the non-breaching Party provides the breaching Party with written notice of such breach; or if the other Party: (C) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (D) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (E) makes or seeks to make a general assignment for the benefit of its creditors; or (F) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Termination for Convenience. Furthermore, either Party may terminate the Agreement, at any time without cause or for any reason, by providing the other Party no less than sixty (60) days prior written notice. Notwithstanding the foregoing, any termination by Restaurant Partner under this Section shall not entitle Restaurant Partner to any refund or return of annual fee paid for the then-current Term. Termination by Provider under this Section shall result in a pro-rated refund of unearned Fees for any remaining months of the current Term whereby Services will not be provided as a result thereof.
(d) Effect of Expiration or Termination. Upon expiration or earlier termination of the Agreement, Restaurant Partner shall immediately discontinue use of the Provider IP and, without limiting Restaurant Partner's confidentiality obligations under Section 5, Restaurant Partner shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Restaurant Partner's obligation to pay all Fees that may have become due before such expiration or termination or entitle Restaurant Partner to any refund.

11. Miscellaneous.

(a) Entire Agreement. The Agreement, together with these Terms and Conditions and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Agreement, the related Exhibits or Appendices, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Agreement, excluding its Exhibits or Appendices; (ii) second, the Exhibits or Appendices to the Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Survival. Section 1 of the Agreement together with Sections 1, 4, 5, 6, 7(b), 8, 9, and 11(d) of these Terms and Conditions shall survive any termination or expiration of the Agreement. No other provisions of the Agreement survive the expiration or earlier termination of the Agreement.
(c) Non-Exclusivity. Provider does not guarantee Restaurant Partner any guaranteed business, revenue generation or other material benefit, whether financial or otherwise, through any End User or other third-party’s use of the Services and Restaurant Partners incorporation of its goods and services therein. Furthermore, the Agreement does not grant Restaurant Partner the exclusive right to provide any products or services to Provider or through the Services, including any element of offering related thereto, and Provider may freely secure additional partnerships or other affiliations with other entities, including restaurants or other businesses that provide products or services the same or similar to Restaurant Partner’s business and/or which may be competitive with Restaurant Partner.
(d) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(e) Force Majeure. In no event shall Provider be liable to Restaurant Partner, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Amendment and Modification; Waiver. No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, (i) 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, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(h) Governing Law; Submission to Jurisdiction. The Agreement, including these Terms and Conditions, are and shall be governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee in each case located in the city of Memphis and County of Shelby, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(i) Dispute Resolution. Notwithstanding the foregoing, the parties will attempt in good faith to resolve informally any disputes or disagreements arising out of or relating to the Agreement prior to initiating any legal action or claim. The aggrieved party will notify the other party in writing of the nature of the dispute with as much detail as possible. Each party will designate a representative with full authority to address and resolve the dispute. The designated representatives will meet (in person or by telephone) no later than 15 business days after the date of the written notification to reach an agreement about the nature of the dispute and the corrective action the parties will take. If the designated representatives do not meet or are unable to agree on corrective action, the parties will have 30 days within which to institute a one-day mediation with a third party mediator mutually agreeable to both parties. The parties will share the cost of the mediation, exclusive of attorneys’ fees. Neither party may initiate legal action arising out of or relating to the Agreement until both parties have substantially complied with or waived this dispute resolution procedure. Notwithstanding the foregoing, this Section shall not apply to any claims by Provider relating to a breach by Restaurant Partner’s non-payment or breach of any intellectual property or confidentiality rights granted or set forth herein.
(j) Assignment. Restaurant Partner may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.
(k) No Third Party Beneficiaries. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. The provisions of the Agreement are for the exclusive benefit of the parties hereto and their permitted assigns. Nothing contained in the Agreement will be deemed to create any third party beneficiaries or confer any benefit or rights on or to any person not a party hereto, and no person not a party hereto shall be entitled to enforce any provisions hereof or exercise any rights hereunder.
(l) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Restaurant Partner, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(m) Counterparts. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.