Terms and Conditions
Last Updated: 9.11.2024
These Platform Terms and Conditions (the “Terms”) are entered into by and between Pomegranate Technologies, Inc. (d/b/a Pepper), a Delaware corporation (“Pepper”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms, together with all Order Forms (defined below), constitute this “Agreement”. If you are accepting these Terms or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Pepper Platform (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Pepper Platform accounts.
“Documentation” means Pepper’s then-current standard usage documentation for the Pepper Product.
“Effective Date” means the date of the initial Order Form entered into between Customer and Pepper.
“Order Form” means an ordering document or online order entered into between Customer and Pepper, or online ordering flow completed by Customer, in each case that sets forth the applicable Pepper Platform to which Customer is subscribing, pricing therefor (including in relation to overages ), permitted number of users and subscription term, and that references these Terms and Conditions.
“Pepper Platform” means the SaaS-based platform that enables distributors of food, beverages and related supplies to communicate with their restaurant, retail and wholesale operators and to receive, track and manage orders from such operators, developed by Pepper, as further described in the applicable Order Form.
“Third Party Services” means any product, add-on or platform not provided by Pepper that Customer elects to use with the Pepper Platform.
Access to Platform
Customer acknowledges and agrees that, as between the parties, Pepper retains all right, title and interest in and to the Pepper Platform and all associated intellectual property rights. Pepper grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Pepper Platform. Customer will acquire no right, title, or interest in and to the Pepper Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, except for the limited rights expressly granted to Pepper under this Agreement, Customer retains all right, title and interest in and to the Customer Data.
EXCEPT FOR A PARTY’S, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS,] TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM
Customer agrees that Pepper may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Pepper’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the Pepper Platform. This Agreement shall be construed and governed according to the internal substantive and procedural laws of the State of New York excluding choice of law principles, and the parties agree to exclusively resolve disputes in the State or Federal courts located in New York, New York. The relationship of the parties established by this Agreement is that of independent contractors. Pepper reserves the right in its sole discretion and at any time and for any reason to modify these Terms. With respect to each Order Form, any modifications to these Terms shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Pepper account.
Notices to Pepper must be sent to 524 Broadway 11-119, New York, NY 10012. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions of this Agreement will remain in full force and effect in such jurisdiction and will be liberally construed in order to effectuate the purpose and intent of this Agreement.
Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement to an Affiliate or in connection with the sale of all or substantially all of such party’s equity, business or assets. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which taken together will constitute one signed agreement between the parties.