TOS | Restaurant Growth Advisors

TERMS OF SERVICE

DONE-FOR-YOU™ SERVICES AGREEMENT

Last Updated Date: September 26, 2023

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‍This Done-For-You™ Services Agreement (this “RGA Services Agreement”) is a binding contract between Business (defined below) and Restaurant Growth Advisors, LLC (“RGA”). This RGA Services Agreement sets forth the terms pursuant to which Business may permissively use or access the RGA Done-For-You™ Services user portal that powers RGA’s proprietary Done-For-You™ RGA Services. The RGA Services include: RGA’s online ordering system via your Business’ branded website (built and operated by RGA; the “Business’ Website”) as well as via Business’ Facebook and Instagram Messenger accounts, RGA’s social media management and automated marketing services, RGA’s Loyalty program, and automated Email and SMS Marketing program giving Business necessary information and control relating to Customer Orders (together comprising the “RGA Platform”). The RGA Platform, together with the Done-For-You™ Services are the “RGA Services”. This RGA Services Agreement incorporates by this reference the RGA Done-For-You™ Services Order entered into between RGA and Business and, taken together, the RGA Services Order and this RGA Services Agreement comprise a single contractual agreement between RGA and Business. If there are any terms in the Services Order inconsistent with terms in this Services Agreement, the terms in this Services Agreement shall prevail.

‍YOU ACCEPT THIS RGA SERVICES AGREEMENT BY TAKING ONE OR MORE OF THE FOLLOWING ACTIONS: CLICKING A BOX ONLINE INDICATING BUSINESS’S ACCEPTANCE; BY ACCESSING OR USING ANY RGA SERVICE; BY SIGNING A HARD-COPY OF THE RGA Done-For-You™ SERVICES ORDER; OR BY OTHERWISE AFFIRMATIVELY INDICATING BUSINESS’S ACCEPTANCE OF THIS RGA SERVICES AGREEMENT. YOU, THE PERSON ACCEPTING THIS RGA SERVICES AGREEMENT: (i) AGREE TO THIS RGA SERVICES AGREEMENT ON BEHALF OF THE ORGANIZATION FOR WHICH YOU ACT (that is, the BUSINESS) AND (ii) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND BUSINESS TO THIS RGA SERVICES AGREEMENT. IF YOU LACK SUCH AUTHORITY, OR DISAGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS RGA SERVICES AGREEMENT, AND NEITHER YOU NOR THE BUSINESS MAY USE OR ACCESS THE RGA SERVICE.

Among other things, RGA Services enable customers of your Business (customers of your Business are “Customer(s)”) to order and pay for items from your Business. The RGA Services Order contains RGA’s then-current pricing for Business’s use of the RGA Services for Locations operated by Business.

‍1. Material Terms.

This summary is for convenience only. Business is responsible for reading this RGA Services Agreement in its entirety. In summary (and without limiting the language below), Business acknowledges that:

the RGA Platform is licensed for permissive use, not sold to Business, and Business may use the Done-For-You™ RGA Services only as stated in this RGA Services Agreement;
Business consents to RGA’s collection, use, and disclosure of information Business provides, and other information obtained about Business from Business’s or its Customers’ use of the RGA Services, including personally identifiable information and location information, in accordance with RGA’s Privacy Policy (available at www.restaurantgrowthadvisors.com/privacy-policy ) (the “Privacy Policy”);
the RGA Platform, and RGA Services, are provided “as is” without warranties of any kind and RGA’s liability to Business is strictly limited; and
disputes arising hereunder will be resolved by binding arbitration. By accepting this RGA Services Agreement, Business and RGA are each waiving the right to a trial by jury or to participate in a class action lawsuit involving the other Party.

2. Fees; Payment.

2.1 Setup and Hardware Fees.

2.1.1 Setup Fees. RGA may charge Business a setup fee when Business starts using the RGA Services as stated in the RGA Services Order (“Setup Fee”). Business acknowledges and agrees that Setup Fees are due in advance and are non-refundable.

2.1.2 Setup Fees may also include fees to install and activate any Loaned or Purchased Hardware (“Hardware Setup Fee”; either a “Loaned Hardware Setup Fee” or a “Purchased Hardware Setup Fee”) items at each Location.

2.1.3 Setup and Subscription Payment Process. Setup Fees, and the first month’s Subscription Payment (collectively, “Setup and Subscription Payment”) are due on the Start Date, and Business authorizes RGA to automatically charge those fees to the credit card or other payment method Business provides upon signing the RGA Services Order.

2.2 Subscription and Monthly Fees and Payment for RGA Services.

2.2.1 The RGA Services comprise a subscription-based plan with automatically recurring payments for each month’s Subscription Payment in advance of the next month (“Subscription Payment”). The “Subscription Billing Date” is the Start Date on the Done-For-You™ Services Order.

2.2.2 The initial term of the Subscription RGA Services starts on the Start Date and continues for one month and will automatically renew for successive monthly periods (the “Subscription Period”) unless Business or RGA cancels the Subscription RGA Services.

2.2.3 RGA will charge Business a monthly fee during the Subscription Term for each piece of Loaned or Purchased Hardware (either a “Loaned Hardware Fee” or a “Purchased Hardware Fee”) as shown on the RGA Services Order, which will be accounted for on each monthly statement issued by RGA to Business.

2.2.4 When Business orders the Done-For-You™ RGA Services, Business authorizes RGA or its third-party payment processors to periodically charge, until termination of the RGA Services, all accrued sums on or before the applicable payment due date. The “Subscription Fee,” is stated in the RGA Services Order. Business’s account will be charged automatically on the Start Date and thereafter on each renewal date of Business’s Subscription RGA Services for all applicable fees and taxes for the next Subscription Period. Business must cancel its Subscription RGA Services at least thirty (30) days before it renews in order to avoid billing of the next Subscription Payment. RGA or its third-party payment processor will bill the monthly Subscription Payment to the payment method associated with Business’s. Business may cancel the Subscription RGA Services by contacting RGA at support@restaurantgrowthadvisors.com. BUSINESS’S CANCELLATION MUST BE RECEIVED IN WRITING AT LEAST THIRTY (30) DAYS BEFORE THE RENEWAL DATE FOR THE SUBSEQUENT SUBSCRIPTION PERIOD IN ORDER TO AVOID A CHARGE FOR THAT SUBSCRIPTION PERIOD.

2.3 Delinquent Accounts.

RGA may suspend or terminate access to the RGA Services for any account for which any amount is due but unpaid. In addition to monthly amounts due, a delinquent account will be charged with fees including collection fees. RGA reserves the right to set off all amounts owed by RGA to Business under this RGA Services Agreement. If Business’s payment method is no longer valid when a payment is due, RGA reserves the right to terminate and delete Business’s account and any information associated with Business’s account without any liability to Business or any third-party.

2.4 Transactions and Deliveries.

For each order placed by a Customer through the RGA Platform (each a “Customer Order”), RGA will charge Business the Transaction Fee indicated in the RGA Services Order. Business acknowledges that RGA may charge the applicable Customer directly for the applicable Customer Order and Business hereby authorizes RGA as Business’ agent (including RGA’s third-party payment processors) to collect from such Customers, on Business’s behalf, payment for such Customer Orders. RGA will remit to Business any such amounts less the Transaction Fees, if any (“Balance Payments”). Business will be responsible for the payment of any refunds, chargebacks, or other fees incurred in connection with each Customer Order and Business agrees to reimburse RGA for amounts actually paid by RGA for those refunds, chargebacks, or other fees. RGA reserves the right to offset any amounts Business owes to RGA against the Balance Payments. Business agrees to keep Business’s pricing information up to date on the RGA Platform.

2.5 Taxes. All amounts payable by Business to RGA are exclusive of all applicable sales, use, withholding, excise, value added or other taxes, duties, or other charges levied by any governmental authority in connection with Business’s use of the RGA Services, or a Customer Order (collectively, “Taxes”). Business will be responsible for the payment of all Taxes (other than those based on RGA’s net income) incurred in connection with its use of the RGA Services.

3. The Done-For-You™ RGA Services.

3.1 Privacy Policy.

Business’s use of the RGA Services is subject to RGA’s Privacy Policy available at https://www.restaurantgrowthadvisors.com/privacy-policy. Business has read, understood, and agrees to the terms of the Privacy Policy, including the data collection, use, and disclosure provisions set forth therein, which is hereby incorporated into this Done-For-You™ RGA Services Agreement by this reference.

3.2 Accounts on the RGA Services.

To create an account on the RGA Services, Business must provide the name of a responsible person, Business’s name, Business address(es) (including the address(es) of each Location), email address, and payment information for Business’s which must include Business’s credit card and/or bank account information and billing address. Business represents and warrants that all such information that Business provides to RGA is accurate and agrees to keep such information up to date. Business is responsible for maintaining confidentiality of Business’s login and other information related to Business’s use of the RGA Services. Business indemnifies and holds RGA harmless from any misuse of Business’s account by third-parties attributable to Business’s failure to retain such login information as confidential.

3.3 Computer and Peripheral Devices.

3.3.1 Loaned Hardware. To enable Business to use the RGA Services, RGA may facilitate the loan or purchase by Business of an appropriately configured computer and/or peripheral device for use at a specific Location.

Such computer may include an Android, Microsoft or Apple tablet, or Laptop, Notebook, Handheld, Smartphone, Mobile PC, or Pocket PC (each a “Computer”). Such a peripheral device is a printer or display device (“Peripheral Device”). Collectively, the Computer and Peripheral Device are “Hardware”, either “Loaned Hardware” or “Purchased Hardware”.
All pre-installed software on any Loaned Hardware is RGA content that is licensed, not sold, to Business pursuant to this Agreement.
RGA will charge Business the Loaned Hardware Fee as shown on the RGA Services Order and on each statement submitted by RGA to Business during the Subscription Term.
Business is solely responsible for all costs associated with the loan or purchase of any Computer or Peripheral Device, for insuring it against loss, theft or damage, and for its maintenance and repair. Business acknowledges and agrees that Business obtains no ownership interest in any Loaned Hardware, and that upon Termination it will return all Loaned Hardware to RGA within ten days and authorizes RGA to debit Business’ account for the full value of any Loaned Hardware that is not so returned.

3.3.2 Purchased Hardware.

RGA may facilitate the purchase of Hardware by Business. Purchased Hardware becomes the property of Business upon delivery to Business. Business is solely responsible for the maintenance and care of Purchased Hardware items, as well as insuring such items against risk of loss, theft or damage. Purchased Hardware items are warranted by their respective manufacturers and not by RGA. RGA will charge Business, and Business shall pay, the Hardware Purchase Fee as shown on the RGA Services Order at the time of purchase and/or on each statement submitted by RGA to Business during the Subscription Term.

4. Customer Orders.

4.1 Generally.

Business will not take steps to deprioritize fulfilment of Customer Orders placed through the RGA Services and will use commercially reasonable efforts to fulfill each Customer Order as soon as practicable. Business will prepare Customer Orders placed through the RGA Services with the same quality of food and beverages served to Customers who dine in-person or place orders directlywith the Business. If demand at a given Location exceeds Business’s capacity, Business may request that RGA suspend Customer Orders via the RGA Services for a given Location for a mutually agreed upon timeframe and RGA will make commercially reasonable efforts to accommodate such requests.

4.2 Deliveries. Summary of our RGA Done-For-You™ Online Order system process:

When a Customer Order is placed through the RGA Services, the RGA Platform carefully arranges and manages the order fulfillment by DoorDash or UberDirect or other reputable delivery partner.
Our RGA Platform will send the Customer Order to the delivery partner through an API integration.
The Customer Order is also sent as an email and/SMS to you and the Customer.
The Customer Order will also be sent to Business’ POS or to a computer device and/or peripheral device in each Location.

4.3 Food and Safety.

Business must ensure that its employees and all staff prepare and handle food in strict compliance with all applicable local, state and federal food safety laws and regulations, including the Food Safety and Inspection Service Guidelines of the United States Department of Agriculture Food Safety and Inspection Service.

4.4 Tobacco and Alcohol.

Business shall not sell tobacco or related products through the RGA Services. Business shall not sell alcoholic beverages through the RGA Services except as otherwise expressly agreed in writing between Business and RGA.

4.5 DOORDASH – Incorporated Third-Party Terms.

When RGA uses DoorDash Direct for third-party delivery within the RGA Done-For-You™ Platform, Business agrees to become bound by the DoorDash terms and conditions of service located at: https://help.doordash.com/merchants/s/terms-of-service-us?language=en_US.

5. Business Content.

5.1 Business Retains its Ownership.

The Done-For-You™ RGA Services enables Business to create or post certain content (“Business Content”) including menus and other information about each Location. RGA claims no ownership over Business Content. Business and its third-party licensors, as appropriate, retain all copyright, patent, and trademark rights to the Business Content. Business is solely responsible for protecting its rights and acknowledges that Business Content is non-confidential and non-proprietary. Business indemnifies and holds RGA harmless from claims that any Business Content infringes or otherwise violates the rights of any third-party.

5.2 RGA’s Use of Business Content.

‍By creating, posting, or sharing Business Content on or through the RGA Services, Business hereby grants RGA a worldwide, non-exclusive, royalty-free license to use, modify, remove, publish, transmit, or display Business Content solely in connection with the operation of the RGA Services. If Business objects to any such use by RGA of any Business Content, Business must promptly notify RGA in writing and RGA will consider reasonable requests regarding its use of such Business Content. RGA reserves the right in its sole discretion to refuse to post, display, or transmit any Business Content on the RGA Done-For-You™ Platform.

5.3 Third-Party Services.

RGA may provide or enable tools that enable Business or RGA to transfer information to third-party services. By using the RGA Services, Business agrees that RGA may transfer such information to the applicable third-party service. Business acknowledges that such third-party services are not under RGA’s sole control and that RGA is not responsible for any third-party service’s use (or misuse) of Business’s information. Similarly, any third-party linked websites are not under RGA’s sole control and RGA is not responsible for their operation or content.

6. RGA Content.

6.1 RGA Content.

RGA hereby authorizes Business, subject to the terms of this RGA Services Agreement, to access and use the designs, text, graphics, images, video, information, logos, button icons, software (including mobile applications and hosted software services), audio files, computer code, Third-Party Content (as defined below), and other RGA content included within the RGA Services (collectively, “RGA Content”) solely for Business’s use of the RGA Services during the Subscription Term (“RGA Content Use”). Any other use is expressly prohibited. All RGA Content and the compilation of all RGA Content are and remain the property of RGA or its licensors and are protected under copyright, trademark, and other laws. Unauthorized use of RGA Content is strictly prohibited. Business must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original RGA Content. Business is responsible for compliance with RGA’s Guidelines for Using RGA’s Trademarks and Copyrights when Business engages in RGA Content Use.

6.2 All RGA Rights Reserved.

‍Business acknowledges that the limited license granted in Section 6.1 above confers no title or ownership nor does it constitute a grant or sale of any rights in the RGA Content, and further that this RGA Services Agreement is not intended to confer, and does not confer, any rights or remedies on any person, other than a permissive, non-exclusive, non-transferable, non-sublicensable, limited license to Business solely during the Subscription Term. As between RGA and Business, RGA retains all intellectual property rights in the RGA Services and RGA Content, including all intellectual property rights including patent, copyright, and trademark rights. All rights not expressly granted to Business are reserved solely to RGA. There are no implied licenses, waivers or covenants granted hereunder.

6.3 Third Party Content.

The RGA Services may contain content from RGA’s licensors, including from Customers (“Third Party Content”). Business acknowledges that Business is not granted and will not obtain, as a result of Business’s use of the RGA Services, any right, title, or interest in or to Third Party Content delivered via the RGA Services or in any intellectual property rights related therto (including any copyrights, patents, trademarks, trade secrets, or other rights) except the limited right to use such Third Party Content as part of the RGA Services solely during the Subscription Term..

7. Marketing and Publicity.

7.1 Marketing Materials.

RGA may, from time to time, provide Business with marketing materials including hard-copy or digital fliers, door decals, signs, or other materials (“Marketing Materials”). Subject to Section 7.2 below, Business may use Marketing Materials that Business in its reasonable discretion deems suitable. Business may not modify any Marketing Materials without RGA’s prior written consent. RGA retains all right, title, and interest in and to all Marketing Materials provided to Business under this RGA Services Agreement.

7.2 Marketing Efforts.

Business shall use commercially reasonable efforts to conduct marketing activities during the term of this RGA Services Agreement, including: (i) fliers or other Marketing Materials, as applicable, to Customers including content that promotes the RGA Services, (ii) refer Customers who call Business to place an order to place an order via the RGA Services instead, and (iii) promote the RGA Services by emailing or SMS messaging Customers.

7.3 Website.

Business agrees that if Business builds and maintains its own website, such website will feature RGA’s company name and logo, a description of the Done-For-You™ RGA Services, and a hyperlink to RGA’s website (“RGA Link”). Business and RGA will agree upon placement, appearance, and content of the RGA Link. Business will remove any RGA Reference promptly upon RGA’s request or Termination.

7.4 Publicity.

RGA is given permission to use Business’s name and logo in its marketing, press releases, and on its website (including appropriate testimonials and references) and may identify Business as a user of the RGA Services.

8. RGA Loyalty Program; Business Promotions and Gift Cards.

8.1 RGA Loyalty Programs.

The RGA Services enable Business to offer Customers loyalty points or other rewards or benefits for placing Customer Orders through the RGA Done-For-You™ Platform (“RGA Loyalty Program”). RGA Services will administer the RGA Loyalty Programs and Business agrees to honor any such rewards or benefits offered to Customers..

8.2 Promotions.

Business may use RGA Services to help advertise or run a promotion, contest or sweepstakes (a “Promotion”), in which case Business is solely responsible for the lawful operation of each Promotion (including registration, bonding and obtaining any necessary approvals). Promotions must include a written release of RGA, its affiliates, employees, contractors, and agents by the participants and an acknowledgement that the applicable Promotion is not sponsored by RGA. RGA solely provides administrative support for Promotions and Business agrees that use of the RGA Services in connection with any Promotion is at Business’s own sole risk.

9. Gift Cards.

9.1 Gift Cards.

The RGA Services may enable Business to offer Customers electronic gift cards or gift certificates for redemption by the Business (each, a “Gift Card”). The RGA Done-For-You™ RGA Services provides Business with administrative support by which Business can offer and manage such Gift Cards. RGA Services processes the payments related to Gift Cards for the fee stated in the RGA Services Order. Business, and not RGA, is the issuer of Gift Cards. Business is solely responsible for complying with all laws related to the sale, issuance, and acceptance of Gift Cards, including notice and disclosure requirements, expiration dates and fees, refunds, unclaimed property or escheat requirements, and support service for buyers and holders of Gift Cards. Business may not issue a Gift Card with a value in excess of $2,000, add value to a previously issued Gift Card so that the total funds loaded on a Gift Card in any single day exceed $2,000, or issue more than $10,000 in Gift Cards to any single person in any one day. Business may not impose an expiration date on Gift Cards, and any unused balance must remain available to the holder until fully redeemed. Business represents and warrants that it will provide clear disclosure of, and bind Customers to, applicable Gift Card terms, and that it is and will continuously comply with applicable laws and regulations related to the sale, issuance, and acceptance of Gift even after the termination of this RGA Services Agreement.

9.2 Fees; Payment.

For each purchase of a Gift Card, RGA will process the entire transaction for the value of the Gift Card and will retain 5% of the total sale amount (the “Gift Card Fee”) as a processing and services fee. RGA will use commercially reasonable efforts to remit the remaining balance of the total sale amount, minus third party processing fees and Taxes (the “Gift Card Payment”) to Business within 7 days from the date on which RGA receives the Gift Card Fee. RGA may offset chargebacks, refunds, or adjustments against any Gift Card Payment before remittance.

9.3 Liability; Indemnification.

Business hereby indemnifies and holds RGA, its officers, directors, employees, agents, service providers, and licensors harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected to Gift Card and Promotions sponsored or promoted by Business, including claims related to violations of applicable law and claims by Customers. Business is solely responsible for handling all claims by Customers related to the sale, redemption or use of Gift Cards and Promotions, including accounting related thereto, legal claimsall other claims by Customers, and shall handle all such claims directly with such Customers or third parties as necessary.

10. Prohibited RGA Services Uses.

Business covenants that it will use the RGA Services solely for its intended purpose and in compliance with all privacy, data protection, intellectual property, and other applicable laws. Business will not (and will not permit, enable, or assist others to):

gain or attempt to gain unauthorized access to the RGA Services or computers linked to the RGA Services;
interfere or attempt to interfere with the proper working of the RGA Services;
reverse engineer the RGA Services or any part thereof;
use data mining, robots, or other data gathering devices on the RGA Services;
aggregate, copy, or duplicate any RGA Content;
except as expressly permitted by this RGA Services Agreement, during the term of the Subscription Term or otherwise, sBusiness may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, decompile or re-sell any Third-Party Content;
obtain unauthorized access to other users’ accounts;
remove, disable, damage, circumvent, or otherwise interfere with the security of the RGA Services;
create any link to the RGA Services without permission;
use the RGA Services in an illegal way or commit an illegal act;
introduce a virus to the RGA Services;
cause Business’ use of the RGA Services to impose an unreasonable or disproportionately large load on the RGA Platform;
sell, transfer, or assign any rights to use the RGA Services including any Loaned Hardware to a third party without RGA’s express written consent;
cause Business’ use of the RGA Services to result in complaints, disputes, claims, fines, penalties, and other liability to RGA or others;
alter the software or hardware on any Loaned Hardware;
access the RGA Services from any jurisdiction where it is illegal, unauthorized, or penalized;
use Customer Data (as defined below) in any manner other than in accordance with the Privacy Policy; or‍
attempt or enable a third-party to perform any of the foregoing actions.

11. Third Party Software.

‍The RGA Platform may include software owned or licensed to RGA by a third party (“Third Party Software”). Third Party Software may be subject to separate license terms made available upon request as necessary to Business by RGA.

12. Data.

12.1 Consent to Use of Business’s Data.

Business agrees that RGA and its service providers may collect and use data including device identifiers and other information about Business’s devices, systems, and application software to facilitate RGA software updates, product support, and other services to Business related to the RGA Services, and to track, analyze and report Business’s activity using the RGA Services. Refer to the RGA Privacy Policy for details.

12.2 Customer Data.

“Customer Data” means all information submitted by or collected regarding Customers via the RGA Services, including personally identifiable information. If RGA provides Business with any Customer Data, Business may use such Customer Data only in connection with its use of the RGA Services and RGA’s related brands including Mr. Orders (MrOrders.com), Rewardz (WinRewardz.com), and FoodieFans (GoFoodieFans.com) and at all times in a manner consistent with the Privacy Policy.

13. Ownership.

‍RGA Services and RGA Content, including all intellectual property rights therein, are the sole and exclusive property of RGA and its licensors, provided that Business retains ownership of any intellectual property rights it owns in any Business Content. Except for the limited right to use expressly granted to Business under this RGA Services Agreement, no other rights, licenses, or immunities are granted or will be deemed to be granted under this RGA Services Agreement, either expressly, or by implication, estoppel, or otherwise. All rights not expressly granted by a party hereunder are expressly reserved.

14. Creative Ideas.

‍RGA welcomes Business’s feedback. If Business sends RGA feedback, ideas, suggestions, inventions, or materials (“Creative Ideas”), Business agrees that RGA (i) will not be subject to any obligation of confidentiality and will not be liable for any use, non-use or disclosure of any Creative Idea and (ii) may use such Creative Ideas without restriction for any purpose, commercial or otherwise, without compensation to Business or any other person.

15. Termination.

The RGA Services Agreement is effective until terminated by Business or RGA. Business’s rights thereunder Services Agreement terminate automatically without notice from RGA if Business fails to comply with any term(s) of this RGA Services Agreement including the RGA Services Order. Business or RGA may terminate this RGA Services Agreement at any time by: (i) notifying the other Party of its intent to terminate at least thirty (30) days after such notice, and (ii) upon termination, returning to the other Party any materials that are owned by such other Party. Upon termination, Business must immediately cease all use of the RGA Services or the RGA Platform, and destroy all copies, full or partial, related to the RGA Services and any Marketing Materials and Customer Data in Business’s possession or control, cease use of the Business’ Website or other references to RGA, and return all RGA material to RGA within five Business days. Business’s payment obligations, obligations to comply with laws related to sale, issuance and receipt of Gift Cards and Promotions Programs, and Sections 2, 3, 6.2, 6.3, 9.3,10, 12.1, 13, 14, 15, 17, 18, 19, 20, 21, and 22 will survive termination of this RGA Services Agreement for any reason. Additionally, RGA may terminate this RGA Services Agreement on 10 days’ notice upon Business’s breach of this RGA Services Agreement if the breach is not remedied within such 10-day period or immediately if the breach is incapable of cure.

16. Revisions.

‍Except as otherwise specified herein, RGA may revise this RGA Services Agreement including the features of the Done-For-You™ Suite of Services, or the pricing otherwise offered to Business on a going forward basis at any time by notifying Business by email, text or automated messaging, to be effective 30 days following such notification. Business may terminate this RGA Services Agreement if Business objects to any such revision by providing RGA written notice of termination within 30 days following notification by RGA of such revision. Business’s continued use of the RGA Services between RGA’s receipt of an objection and the effective date of Business’s termination will be governed by the RGA Services Agreement in effect immediately prior to the date of the Objection. If Business continues to use RGA Services for 30 days following notification of revision by RGA without objecting to any such revision or terminating this RGA Services Agreement, Business becomes bound by such revised terms of this RGA Services Agreement.

17. Indemnity.

‍Business hereby indemnifies and holds RGA, its officers, directors, employees, agents, service providers, and licensors (the “Released Parties”) harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal and accounting fees, arising out of or in any way connected to (i) the Business Content or any other material or information provided by Business to RGA, (ii) Business’s access, use, or misuse of the RGA Services or RGA Content, (iii) Business’s violation of this RGA Services Agreement, (iv) Business’s Gift Card or Promotions, (v) claims for personal injury or death caused by (or alleged to have been caused at least in part by) Business’s food, drinks, products or services, (vi) Business’s sale, issuance or acceptance of Gift Cards, Loyalty Programs and Promotions including claims related to violations of applicable law by Business and claims by Customers related thereto, or (vii) Business’s dealings with any Customer or third-party. RGA will use reasonable efforts to notify Business of any such claim, action, or proceeding but if RGA is unable to notify Business in a timely manner because of an inactive phone number or e-mail address, Business’s indemnification obligation will continue notwithstanding RGA’s inability to contact Business in a timely manner.

18. NO WARRANTY.

‍BUSINESS EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE RGA CONTENT (INCLUDING ANY TERMS AND CONDITIONS USED BY BUSINESS IN ANY CARD GIFT CARD, OR PROMOTIONS) ARE AT BUSINESS’ SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH BUSINESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RGA SERVICE AND ALL RGA CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. RGA HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, LICENSORS AND SUCCESSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. RGA DOES NOT WARRANT AGAINST INTERFERENCE WITH BUSINESS’S ENJOYMENT OF THE RGA SERVICE OR RGA CONTENT, NOR THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE RGA SERVICE OR RGA CONTENT WILL MEET BUSINESS’S OR ANY CUSTOMER’S REQUIREMENTS, NOR THAT THE OPERATION OF THE RGA SERVICE OR RGA CONTENT WILL BE SECURE, IMMUNE FROM HACKING, CYBERCRIME OR WRONGFUL INTRODUCTION OF HARMFUL CODE BY THIRD-PARTIES, UNINTERRUPTED, OR ERROR-FREE, NOR THAT ANY DEFECTS IN ANY OF THE FOREGOING WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RGA OR ITS REPRESENTATIVES WILL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS RGA SERVICES AGREEMENT. SHOULD THE RGA SERVICE OR RGA CONTENT PROVE DEFECTIVE, BUSINESS ASSUMES THE ENTIRE COST OF ALL NECESSARY REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO BUSINESS, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

19. Limitation of Liability.

‍TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE RELEASED PARTIES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO BUSINESS’ USE OR INABILITY TO USE THE RGA SERVICES OR ANY RGA CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ANY OF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO BUSINESS. IN NO EVENT WILL THE RELEASED PARTIES’ TOTAL LIABILITY TO BUSINESS FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY), EXCEED THE AMOUNTS PAID BY BUSINESS TO RGA PURSUANT TO THIS RGA SERVICES AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO BUSINESS, BUT IN SUCH A CASE THE FOREGOING WILL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.

20. Third Party Disputes.

‍RGA is not responsible for any disputes or disagreements between Business and any third party, including any Customer, that Business interacts with using the RGA Services. Business assumes all risk associated with dealing with third parties. Business agrees to resolve disputes directly with the other party without involving RGA. Business hereby irrevocably releases RGA of all claims, demands, and damages in disputes among users of the RGA Services, and Business agrees not to involve RGA in such disputes.

21. Dispute Resolution and Arbitration.

21.1 Generally.

Except as described in Section21.1 and 21.2, Business and RGA agree that every dispute, claim or controversy arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation. If within thirty days the matter is not resolved through mediation, then any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be referred to and finally determined by a sole arbitrator in accordance with the JAMS Smart Contract Rules. The seat of the arbitration will be San Jose, California. Judgment upon the award rendered by the Arbitrator(s) may be entered by any court having jurisdiction thereof. The prevailing Party in any such arbitration shall be entitled to an award of reasonable attorneys’ fees and costs of such arbitration. Each Party acknowledges and agrees that it is waiving its right to a jury trial that may be available under California or Federal law. If either Party wishes to revoke such waiver it shall immediately so inform the other Party in writing of such revocation, in which case the other Party may terminate, or continue, the Done-For-You™ Services. BUSINESS UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, BUSINESS AND RGA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AGAIST THE OTHER PARTY.

21.2 Exceptions.

Although the parties are agreeing to arbitrate most disputes between themselves related to this Agreement, nothing herein shallwaive or limit either party’s right to: (a) pursue enforcement through any appropriate federal, state, or local agency; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law or applicable government agency to address any claim of intellectual property infringement.

21.3 Opt-Out.

If Business decides to opt-out of the requirement to arbitrate in this Sectionthen Business may, within 30 days after Business agrees to this RGA Services Agreement, opt-out of the mandatory provisions of this Section by sending a letter so stating (and without modifying or affecting any other terms hereof) to RGA, Attention: CEO – Arbitration Opt-Out, 1401 21st St. Ste R, Sacramento CA 95811 (“Opt-Out Notice”). Once RGA acknowledges Business’s Opt-Out Notice, this Section will be void and any action arising out of this RGA Services Agreement will be resolved in court unless otherwise agreed in writing by the Parties.

21.4 No Class Actions.

BUSINESS AND RGA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN BUSINESS’S OR RGA’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Business and RGA 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.

22. Compliance with privacy laws

RGA makes the following additional commitments, representations, and warranties to Customer:

22.1 RGA will only process Customer Data and personally identifiable information on behalf of, and as service provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform RGA’s obligations under this Agreement, as permitted under California Consumer Protection Act (“CCPA”) and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will RGA “sell” to unrelated third parties (as defined by Privacy Laws) any such personally identifiable information.

22.2 RGA will not collect, use, retain, disclose, sell, or otherwise make Customer Data or personally identifiable Information available for RGA’s own commercial purposes or in a way that does not comply with the CCPA or other privacy laws.

22.3 RGA will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the RGA Services set forth in the Agreement or another compatible operational purpose.

23. Data subject rights - assistance with requests

23.1 RGA will reasonably cooperate and assist Customer with meeting Customer's CCPA and privacy law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of RGA's processing, and the information available to RGA. RGA will make available to Customer, in a manner consistent with the functionality of the RGA Services and RGA’s role as a service provider of personally identifiable information of data subjects, the ability to fulfill data subject requests to exercise their rights under privacy laws.

23.2 If RGA receives a request from Customer’s data subject to exercise one or more of its rights under privacy laws in connection with the RGA Services, RGA will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the RGA Services. RGA shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

23.3 RGA must notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party's compliance with privacy laws relating to provisioning of the RGA Services.

24. General Terms.

24.1 Governing Law.

This RGA Services Agreement and the relationship between Business and RGA will be governed by the laws of the state of California without regard to its conflict of laws provisions. Business and RGA submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under this RGA Services Agreement.

24.2 Assignment.

Business may not assign this RGA Services Agreement or any of the rights or licenses granted to hereunder, directly or indirectly, without the prior written consent of RGA. RGA may assign this RGA Services Agreement, including all its rights hereunder, in whole or in part, without restriction. Any assignment made in violation of this RGA Services Agreement is void. This RGA Services Agreement will be binding upon, and inure to the benefit of, RGA, Business, and their respective successors and permitted assignees.

24.3 Consent to Electronic Communications.

By using the RGA Services, Business consents to receiving certain electronic communications from RGA as further described in the Privacy Policy. Business agrees that any notices, agreements, disclosures, or other communications that RGA sends to Business electronically will satisfy any legal communication requirements, including that such communications be in writing.

24.4 Jurisdictional Matters.

The RGA Services are controlled and operated by or on behalf of RGA from its offices within the state of California. RGA makes no representation that all or any part of the RGA Services are made available for use in other states or jurisdictions. If Business accesses or uses RGA Services from outside California, Business does so at its sole risk including whether and if and to what extent local laws are applicable. Access to the RGA Services from jurisdictions where the contents of the RGA Services are illegal, unauthorized, or penalized is strictly prohibited.

24.5 Additional Terms.

‍This RGA Services Agreement, together with the Done-for-You™ Services Order the RGA Privacy Policy, any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between Business and RGA regarding Business’s use of and access to the RGA Services and RGA Content, and except as expressly permitted herein may be amended only by a written agreement signed by Business and RGA that references the specific modifications being made to this RGA Services Agreement. If a court of competent jurisdiction deems there to be a discrepancy or contradiction between the language in this RGA Services Agreement and any other document referenced in the preceding sentence, the language of this RGA Services Agreement shall prevail and control. Failure by RGA to require performance of any provision will not affect RGA’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this RGA Services Agreement or any provision hereof constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any part of this RGA Services Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

24.6 Nonwaiver

No failure or neglect of either Party in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either Party must be in writing signed by the Party to be charged.

24.7 SEVERABILITY; ENFORCEMENT

If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect. If the scope of any of the provisions of the Agreement is too broad in any respect whatsoever to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the parties hereto consent and agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to law.

24.8 Contacting RGA.

Business can contact RGA by email at info@restaurantgrowthadvisors.com or at 1401 21st St. Ste R, Sacramento CA 95811, as may be updated from time to time by RGA.

Business hereby consents to this Done-For-You™ Services Agreement on the date written below:

COPYRIGHT 2023© RESTAURANT GROWTH ADVISORS, LLC. PROPRIETARY AND CONFIDENTIAL RESTAURANT GROWTH ADVISORS, LLC. SHALL NOT BE COPIED, FORWARDED OR RELEASED TO A THIRD-PARTY WITHOUT THE WRITTEN CONSENT OF RGA. SUBJECT TO A NONDISCLOSURE AGREEMENT.

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