Terms of Service

The Terms and Conditions hereinafter set forth, as amended from time to time (these “Terms and Conditions”) together with each Order Form (these Terms and Conditions and any Order Forms are referred to collectively as this “Agreement”) set forth the terms pursuant to which BakeStreet Inc (“BakeStreet”) provides the other party(ies), as applicable  (the “Bakery”, “Restaurant” or “Merchant”) various products and services, as set forth in the Order Form (collectively, the “Services”). This Agreement is composed of Attachment 1 General Terms, and to the extent applicable to the Services identified in an Order Form or Sales Confirmation or as otherwise incorporated by reference in the provisions of an annex, Annex 1 BakeStreet Platform Terms, Annex 2 Professional Services, Annex 3 BakeStreet POS Terms, Annex 4 Hardware Terms, together with all Order Forms entered into under this Agreement. All Services are subject to the General Terms and certain of the Services are also subject to additional terms and conditions as specified in the annexes to the General Terms.

This Agreement is effective between Restaurant and BakeStreet as of the date of BakeStreet’s provision of Services to Restaurant or Restaurant’s execution of the initial Order Form, whichever is earlier (the “Effective Date”). The individual ordering the applicable Services or accepting the Order Form on behalf of Restaurant represents and warrants that such individual has the authority to legally bind Restaurant (including, as applicable, all individual proprietors of the Restaurant) to this Agreement, and agrees that “Restaurant”, “you” and “yours” hereunder will refer to the Restaurant and/or such individual(s), as appropriate in light of the context in which the term is used. For clarity, an Order Form will be considered executed once you click or check the box indicating acceptance at the end of the Order Form. BakeStreet has no obligation to provide any Service not specified in an Order Form.

RESTAURANT ACKNOWLEDGES AND AGREES THAT BakeStreet’S PLATFORM FACILITATES FOOD AND BEVERAGE ORDERING AND DELIVERY. BakeStreet IS NOT A FOOD OR BEVERAGE DELIVERY SERVICE AND SHALL NOT BE DEEMED A FOOD DELIVERY SERVICE AS THAT TERM IS DEFINED UNDER ANY FEDERAL, STATE OR LOCAL LAW, RULE, REGULATION OR ORDINANCE.

ATTACHMENT 1

GENERAL TERMS

These general terms (“General Terms”) apply to all Services and Beta Services provided in connection with this Agreement.

1. Definitions. Unless otherwise provided in this Agreement or as the context requires, capitalized terms used in this Agreement will have the following meanings:

• “Account” means a unique account, or accounts, created by Restaurant in order to access and use the Platform, BakeStreet POS and the other Services.
• “Administrator” means an Authorized User designated by Restaurant to manage the Account.
• “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
• “Aggregated Data” means any data that is derived or aggregated, in deidentified form, from(i) Restaurant Data; or (ii) Restaurant and Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Platform, Online Ordering Platform, BakeStreet POS, BakeStreet Standalone Payments and any of their respective component features and functionalities.
• “Agreement” has the meaning set forth on the cover page.
• “Authorized User” means an individual who is authorized by Restaurant to use the Services. Authorized Users may include, for example, Restaurant employees, consultants, contractors and agents.
• “Beta Services” means services that BakeStreet may offer to Restaurant that are not generally available to BakeStreet customers.
• “Claim Against BakeStreet” has the meaning set forth in Section 11(b) of the General Terms.
• “Claim Against Restaurant” has the meaning set forth in Section 11(a) of the General Terms.
• “Communications Tools” has the meaning set forth in Section 3 of the General Terms.
• “Confidential Information” has the meaning set forth in Section 5(a) of the General Terms.
• “Consumer Service Fee” has the meaning set forth in Section 6(a) of the General Terms.
• “Consumers” means end users who place Orders or otherwise communicate with Restaurant through the Platform.
• “Damaged Hardware Fee” has the meaning set forth in Section 4 of Annex 4.
• “Designated Hardware” has the meaning set forth in Section 6 of Annex 4.
• “Disclosing Party” has the meaning set forth in Section 5(a) of the General Terms.

• “Early Termination Fee” has the meaning set forth in Section 6(m) of the General Terms.
• “Effective Date” has the meaning set forth on the cover page.
• “Failure to Return Fee” has the meaning set forth in Section 3 of Annex 4.
• “Fees” has the meaning set forth in Section 6(a) of the General Terms.
• “Force Majeure Event” has the meaning set forth in Section 13(d) of the General Terms.
• “General Terms” has the meaning set forth above.
• “Grand Total” has the meaning set forth in Section 6(d) of the General Terms.
• “Hardware” means the hardware specified in the applicable Order Form.
• “Hardware Measurement Date” has the meaning set forth in Annex 4.
• “Hardware Fee” has the meaning set forth in Section 2 of Annex 4.
• “Hardware Terms” has the meaning set forth in Annex 4.
• “Intellectual Property” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all applications, renewals, extensions and restorations therefore, and any and all other intellectual property and proprietary rights, whether now or hereafter in force or effect worldwide.
• “Legal Process” has the meaning set forth in Section5(c) of the General Terms.
• “Lost Hardware Fee” has the meaning set forth in Section 4 of Annex 4.
• “Merchant Deposit Account” has the meaning set forth in Section 9(a) of Annex 3.
• “Objected To Promotion” has the meaning set forth in Section 3(e) of Annex 1.
• “Online Ordering Platform” means the online ordering platform available on the merchant’s custom domain (in each case, as may be updated from time to time), and the BakeStreet mobile application made available to Restaurant during the Order Form Service Term for receiving and fulfilling online Orders, all content available thereon, and all Intellectual Property rights contained in any of the foregoing.
• “Order” means a request for goods or services offered by Restaurant from Consumers through the Platform.
• “Order Form” means an ordering document, online order or other order confirmed in writing by BakeStreet (e.g., order for Goods via text) entered into between Restaurant and BakeStreet in which the Services to be provided by BakeStreet to Restaurant are specified, including any Service Amendment. Each Order Form incorporates and is governed by the terms of this Agreement.
• “Order Form Service Term” means the applicable period during which BakeStreet will, as the case may be, make the Platform available to Restaurant, provide Services specified in the Order Form, and provide the Hardware, in each case, as set forth in an applicable Order Form.
• “Platform” means the BakeStreet ordering platforms, including the BakeStreet mobile application, made available to Restaurant during the Order Form Service Term by BakeStreet, all content available thereon, and all Intellectual Property rights contained in any of the foregoing, including, to the extent specified in an Order Form, the Online Ordering Platform, BakeStreet POS, BakeStreet Phone Services, and BakeStreet Standalone Payments.
• “Processor” has the meaning set forth in Section 6(e) of the General Terms.
• “Professional Services” means the sales, marketing or other ancillary services to be provided by BakeStreet to Restaurant as agreed between the parties. Professional Services shall be considered “Services” under this Agreement. For the avoidance of doubt, Professional Services does not include the Online Ordering Platform, BakeStreet POS, BakeStreet Phone Services, and BakeStreet Standalone Payments.
• “Professional Services Work Product” has the meaning set forth in Section 1(d) of Annex 2.
• “Receiving Party” has the meaning set forth in Section 5(a) of the General Terms.
• “Restaurant” has the meaning set forth on the cover page.
• “Restaurant Consumer Data” means data that identifies, relates to, or is linked or reasonably linkable to individuals (including any data that is defined as “personally identifiable information,” “personal data,” “personal information” or any similar term under applicable privacy and data security laws) processed by BakeStreet on behalf of Restaurant in connection with BakeStreet POS, BakeStreet Phone Services, Professional Services, or BakeStreet Standalone Payments, as applicable.
• “Restaurant Data” means the content and information submitted or otherwise made available by Restaurant to BakeStreet in connection with the Services, including, without limitation, product listings, menus, photographs or images, customer lists, Restaurant Marketing Materials and other Intellectual Property owned by or licensed to Restaurant.
• “Restaurant Marketing Materials” means product listings, menus, photographs, images, advertising or marketing materials submitted or otherwise made available by Restaurant to BakeStreet in connection with the Services. Restaurant Marketing Materials shall also include marketing materials and content that are considered Professional Services Work Product under Annex 2.
• “Restocking Fee” has the meaning set forth in Section 3 of Annex 4.
• “Restricted and Prohibited Products and Services List” has the meaning set forth in Section 6(e) of the General Terms.
• “Required Promotions” has the meaning set forth in Section 3(e) of Annex 1.
• “Sales Proceeds” has the meaning set forth in Section 9(a) of Annex 3.
• “Security Incident” means a breach of security leading to the loss, theft, misuse, unauthorized access, modification, alteration, destruction or disclosure of data, including BakeStreet Consumer Data and Restaurant Consumer Data.
• “Service Amendment” has the meaning set forth in Section 13(b) of the General Terms.
• “Services” has the meaning set forth on the cover page.
• “Shop Support” has the meaning set forth in Section 2 of Annex 1.
• “BakeStreet” has the meaning set forth on the cover page.
• “BakeStreet Consumer Data” means data that identifies, relates to, or is linked or reasonably linkable to Consumers (including any data that is defined as “personally identifiable information,” “personal data,” “personal information” or any similar term under applicable privacy and data security laws) collected or processed by BakeStreet in connection with the Online Ordering Platform and related Services.
• “BakeStreet IP” means the Intellectual Property owned by BakeStreet, including, but not limited to, its Trademarks, the Services, Platform, Beta Services, all content made available thereon, all improvements, modifications or derivative works thereof, and all Intellectual Property rights in any of the foregoing.
• “BakeStreet Phone Services” means Phone Management Services and BakeStreet Phone Ordering collectively.
• “BakeStreet POS” means the BakeStreet Standalone Payments and BakeStreet POS services collectively.
• “BakeStreet POS Terms” has the meaning set forth in Annex 3.
• “BakeStreet Platform Terms” has the meaning set forth in Annex 1.
• “BakeStreet Standalone Payments” means the system and related services provided by BakeStreet that enable or facilitate Restaurant to utilize Processor’s processing service without the use of BakeStreet POS.
• “Specifications” has the meaning set forth in Section 3(a) of Annex 1.
• “Stripe” has the meaning set forth in Section 6(e) of the General Terms.
• “Stripe Services Agreement” has the meaning set forth in Section 6(e) of the General Terms.
• “Taxes” has the meaning set forth in Section 6(f) of the General Terms.
• “Term” has the meaning set forth in Section 8(a) of the General Terms.
• “Third-Party Services” has the meaning set forth in Section 2 of the General Terms.
• “Trademarks” means registered and un-registered trademarks, trade names, service marks, logos and/or service names.
• “Warranty Period” has the meaning set forth in Section 7(a) of Annex 4.

2. Third-Party Integrations and Services. Certain features and functionalities within the Platform may allow Restaurant and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Platform or otherwise. BakeStreet does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Restaurant is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Restaurant to use the Third-Party Services in connection with the Platform.
3. Communications With Third Parties. Restaurant may now or in the future have access to outbound communications tools made available by BakeStreet that permit Restaurant to draft, schedule and/or transmit outbound communications to Consumers and other third parties, including phone calls, recorded phone messages, text messages, facsimile messages and electronic mail (collectively, “Communications Tools”). Restaurant shall not use the Communications Tools or any Services provided by BakeStreet in a manner that violates (i) any law, rule, or regulation, including the Telephone Consumer Protection Act and the Controlling the Assault of Non-Solicited Pornography and Marketing Act, (ii) any law, rule, or regulation requiring that consent be obtained prior to transmitting, recording, collecting, or monitoring data or communications or (iii) any law, rule, or regulation requiring compliance with opt-out requests or “do-not-contact” lists for any data or communications. Restaurant expressly acknowledges and agrees that applicable law may restrict Restaurant’s use of the Communications Tools, for instance by requiring Restaurant to obtain legally sufficient consent from the Consumer or other recipient prior to transmitting outbound communications, or by requiring Restaurant to honor “opt-outs” from further communications. Restaurant shall be solely responsible for ensuring that Restaurant’s use of the Communications Tools complies with applicable law, including without limitation obtaining and retaining records of any required consent to communications and honoring “opt-out” requests.
4. Authorized Users; Authorization to Access Devices and Hardware.
   1. Authorized Users. Restaurant shall identify an Administrator who will designate Authorized Users that will be permitted to access the Services via Restaurant’s Account. Restaurant will ensure that its Affiliates and all Authorized Users using the Services comply with all of Restaurant’s obligations under this Agreement, and Restaurant is solely responsible for its, its Affiliates and their respective Authorized Users’ acts and omissions relating to the Agreement, and for the use of the Services by any such person, as though they were those of Restaurant. Restaurant represents and warrants that such Authorized Users have full power and authority to make purchases on behalf of Restaurant and act on behalf of the Restaurant. Restaurant shall notify BakeStreet promptly if it becomes aware of any unauthorized use of its Account. BakeStreet will not be liable for any loss or damage caused by any unauthorized use of any Account.
   2. Device and Hardware Access. Restaurant hereby authorizes BakeStreet to access, connect to and manage (i) each of Restaurant’s devices on which the mobile version of the Platform is installed, and (ii) each of Restaurant’s devices on which any component of the Platform is installed, in each case, including Hardware, via remote technologies as required for the proper performance of the applicable Services without first contacting Restaurant in advance. These activities may include but are not limited to: (i) updating or changing software drivers; installing and applying software patches, including updating the Platform application; updating the device operating system; (iv) rebooting devices for support purposes; and (v) starting or restarting application services. Notwithstanding the above, Restaurant will notify BakeStreet in advance of any restrictions on remote access, connections or management activities.
5. Confidentiality; Privacy & Data Security.
   1. Definition of Confidential Information. “Confidential Information” means all information (whether written, oral, in electronic form or in any other media) disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of its disclosure. Except as otherwise specifically provided in this Agreement, BakeStreet’s Confidential Information includes the Platform, designs and processes used in the performance of the Professional Services, BakeStreet Consumer Data and Restaurant Consumer Data, the terms and conditions of this Agreement and all Order Forms (including pricing), the Online Ordering Platform, BakeStreet POS and Beta Services as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and Intellectual Property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development and strategies disclosed by BakeStreet. However, except for BakeStreet Consumer Data and Restaurant Consumer Data, Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possesses the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, each party covenants and agrees that it will not disclose to any person or entity any Confidential Information of the other party, except as necessary in the performance of the terms of this Agreement. Each party covenants and agrees that it will: (i) not use any Confidential Information of the Disclosing Party except as necessary to fulfill its obligations or exercise its rights under this Agreement; (ii) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care under the circumstances); (iii) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and contractors who need to access such Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the party that disclosed the Confidential Information to the third party. For the avoidance of doubt, BakeStreet may refer to Restaurant as a user of its Services and use Restaurant’s Trademarks and basic facts about the Services purchased by Restaurant for the purpose of referencing Restaurant as a client of BakeStreet on its website and in its sales presentations, marketing collateral, press releases, case studies and other similar marketing materials.
   3. Compelled Disclosure. Notwithstanding any term of this Agreement to the contrary, BakeStreet may respond to and comply with any writ of attachment, lien, UCC notice, levy, subpoena, warrant or other legal order or request (“Legal Process”) that BakeStreet believes is valid and BakeStreet may deliver or hold any funds or information (including any of Restaurant’s Confidential Information) as requested pursuant to such Legal Process. BakeStreet may use its reasonable efforts to contact Restaurant regarding the validity of any alleged lien or other Legal Process but is not obligated to do so. BakeStreet is not responsible for any losses, whether direct or indirect, that Restaurant may incur as a result of BakeStreet’s response or compliance with a Legal Process, whether or not such Legal Process is valid, and Restaurant waives all claims against BakeStreet for withholding any funds otherwise due to Restaurant if BakeStreet reasonably determines such funds may be owed to a third party, as set forth in such Legal Process.
   4. Data Security. Restaurant shall implement and maintain reasonable and appropriate physical, technical and organizational safeguards to protect BakeStreet Consumer Data and Restaurant Consumer Data that it accesses, stores, or otherwise processes against Security Incidents. Restaurant will promptly (but in any event, within 48 hours) notify BakeStreet in writing in the event any such BakeStreet Consumer Data or Restaurant Consumer Data is subject to a Security Incident, and such notice shall include, at a minimum: (i) a description of the Security Incident, including the types of information impacted by the Security Incident; (ii) steps Restaurant has taken and will take to mitigate the impact of the Security Incident and remediate the causes of the Security Incident; and (iii) any other information reasonably requested by BakeStreet. Restaurant shall provide BakeStreet with reasonable assistance in responding to such Security Incident, including with respect to notifying impacted Consumers, law enforcement and governmental authorities.
   5. Processing of BakeStreet Consumer Data. As between BakeStreet and Restaurant, all data and information collected by or on behalf of BakeStreet through the Online Ordering Platform or related Services, including, without limitation, usage data, performance data and BakeStreet Consumer Data, are and shall remain the exclusive property of BakeStreet. Notwithstanding the foregoing, BakeStreet may, in its sole discretion, provide BakeStreet Consumer Data to Restaurant for purposes of providing products and/or services requested by Consumers (including fulfilling Orders), and/or where the Consumer uses or directs BakeStreet to intentionally disclose the BakeStreet Consumer Data to, or interact with, Restaurant. Restaurant shall only use BakeStreet Consumer Data for the purposes for which it was disclosed by BakeStreet, and the parties agree that any such disclosure is not intended to be a “sale” of BakeStreet Consumer Data, as such term is defined under applicable privacy and data security laws. In connection with its access and use of BakeStreet Consumer Data, Restaurant will at all times: (i) comply with the terms and conditions of this Agreement, applicable privacy and data security laws (including providing the same level of data protection as required of BakeStreet under applicable privacy and data security laws), and BakeStreet’s privacy policy; and (ii) limit access to Authorized Users and third parties who have a need to know such BakeStreet Consumer Data and are obligated (in the case of third parties, contractually) to maintain the privacy, security and confidentiality of such BakeStreet Consumer Data. Restaurant will be solely liable for any access, collection or other use or misuse of any BakeStreet Consumer Data by Restaurant, its Authorized Users or any third party to the extent such third party’s access, collection or use was made possible by Restaurant. For purposes of applicable privacy and data security laws, BakeStreet acts as a “controller” of BakeStreet Consumer Data.
   6. Processing of Restaurant Consumer Data. Restaurant agrees to comply with all applicable privacy and data security laws with respect to all Restaurant Consumer Data Restaurant accesses or otherwise processes in connection with BakeStreet POS, BakeStreet Phone Services, Professional Services, or BakeStreet Standalone Payments, as applicable. Restaurant represents and warrants that any Restaurant Consumer Data Restaurant provides to BakeStreet in connection with such services was collected and at all times processed and maintained by Restaurant or on its behalf in compliance with all applicable privacy and data security laws, including with respect to any applicable obligations to provide notice to and/or obtain consent from Consumers. For purposes of applicable privacy and data security laws, BakeStreet acts as a “processor” or “service provider” of Restaurant Consumer Data that it processes in connection with the BakeStreet POS, BakeStreet Phone Services, Professional Services, or BakeStreet Standalone Payments, as applicable.
6. Fees and Payment Terms.
   1. Fees. Restaurant shall pay BakeStreet the fees set forth in the applicable Order Form or Sales Confirmation and such other fees that are specified in this Agreement (the “Fees”), subject to the possibility for BakeStreet to revise such Fees from time to time in its sole discretion, upon written notice to Restaurant (email is sufficient). In the event that BakeStreet implements a change to its Fees, Restaurant may terminate the Services subject to such revised Fees upon written notice to BakeStreet within fourteen (14) days of receiving the Fee change notice from BakeStreet. If Restaurant does not provide written notice of termination within the specified time frame, Restaurant will be deemed to have accepted the new Fees and will be subject to the revised Fees effective on the specified date. Unless otherwise provided in the applicable Order Form, in addition to the Fees, Restaurant will be responsible for payment card fees and other processing fees, fines and penalties. Restaurant acknowledges and agrees that BakeStreet may charge its own additional fees to Consumers in connection with Orders placed by Consumers using the Platform (e.g., BakeStreet’s “Consumer Service Fee”).
   2. Payment. Restaurant will pay the Fees in accordance with the payment terms set forth in the Order Form or as otherwise specified for a Service in the Product Specific Terms and Description or this Section 6. If BakeStreet sends Restaurant an invoice for all or a portion of the Fees, Restaurant is responsible for timely paying all charges, fees, duties and taxes listed on such invoice. If Restaurant has signed up for automatic billing, BakeStreet will charge Restaurant’s selected payment method for any Fees on the applicable payment date, including any applicable Taxes (as defined below). If BakeStreet cannot charge Restaurant’s selected payment method for any reason (such as expiration or insufficient funds), Restaurant remains responsible for any uncollected amounts, and BakeStreet will attempt to charge the payment method again as Restaurant may update its payment method information. In accordance with applicable law, BakeStreet may update information regarding Restaurant’s selected payment method if provided such information by Restaurant’s financial institution. BakeStreet may also elect to deduct, at BakeStreet’s sole discretion, any amounts owed to BakeStreet from the Grand Total and Restaurant hereby authorizes BakeStreet to make any such deduction.
   3. Subscription Fees. By signing or otherwise agreeing to an Order Form that includes subscription fees and providing BakeStreet with a payment method for Restaurant, Restaurant is signing up to an auto-renewing subscription and Restaurant agrees to pay the subscription fees as described in the applicable Order Form and as set forth on the applicable invoice provided by BakeStreet. If BakeStreet terminates Restaurant’s subscription to any Services, BakeStreet will give Restaurant a prorated refund based on the amount of time remaining in any pre-paid subscription; provided, however, that BakeStreet will not be obligated to grant Restaurant a refund if BakeStreet terminates Restaurant’s Account or Restaurant’s subscription because BakeStreet determines, in its sole discretion, that Restaurant, its Authorized Users, Restaurant’s Consumers or any third party associated with Restaurant is engaged in: (i) any activity that may harm BakeStreet, its systems, any BakeStreet IP or any third-party systems; (ii) fraudulent or illegal activity or any other activity that could result in legal liability to BakeStreet or any third party; or (iii) violation of the terms of this Agreement or any other legal agreement between Restaurant and BakeStreet. Without limiting any other terms of this Agreement, (i) BakeStreet may invoice Restaurant in advance for any subscription fees due to BakeStreet, (ii) subscription fees may be drawn from the previous pay period funds accrued by Restaurant and, for new Restaurants, BakeStreet may draw subscription fees from the next applicable pay period, and (iii) in the event the funds during the pay period are insufficient to cover subscription fees, Restaurant authorizes BakeStreet to charge the payment card associated with Restaurant’s Account.
   4. Grand Total Payouts. “Grand Total” means the amount paid by Consumers for (i) Orders placed by Consumers with Restaurant on the Platform, including products, Taxes and any other fees and (ii) Sales Proceeds collected through BakeStreet POS. The Grand Total shall be remitted to Restaurant, less the Fees retained by BakeStreet, any fees charged by BakeStreet directly to the Consumer (e.g., Consumer Service Fee) and any applicable payment card fees and other processing fees, fines and penalties assessed by the payment processor and/or the payment networks. Upon termination or expiration of this Agreement, BakeStreet and/or Processor may withhold the Grand Total for a period of at least thirty (30) days to settle any chargebacks, refunds or Fees.
   5. Payment Processing. BakeStreet or the Processor will act as Restaurant’s agent to collect and hold all monies received from Consumer on Restaurant’s behalf and to remit the funds that may be owed to Restaurant’s designated account, except for cash transactions. Restaurant hereby agrees that payment by a Consumer to the Processor or BakeStreet of any and all monies owed to the Restaurant will constitute full and final settlement of such amounts. BakeStreet or the Processor, not the Consumer, is solely liable to Restaurant if the Processor or BakeStreet fails to remit payments received to Restaurant. BakeStreet has entered into agreement with Stripe, Inc. (“Stripe”), who are third-party providers of payment processing and acquiring services (each a, “Processor”).
      Payment processing services for Restaurants may be provided by Stripe and, in such case, are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By signing up with BakeStreet or continuing to operate as a Restaurant hereunder, Restaurant agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. To the extent BakeStreet obtains information about Restaurant and Restaurant’s business on behalf of Stripe or otherwise, Restaurant authorizes BakeStreet to share it and transaction information related to Restaurant’s use of the payment processing services provided by Stripe or others. Stripe receives that information and processes it in accordance with Stripe’s Privacy Policy.
   6. The Processor may require that Restaurant have a direct contractual relationship with it, and in conjunction with such relationship, it may conduct Know Your Customer and Anti-Money Laundering and Anti-Terrorist Financing (AML) checks. Processor has the right to approve or reject any Restaurant. If approved, Restaurant shall receive all settlement directly from Processor. It being understood that the pricing for the BakeStreet and Processor relationship is set by BakeStreet. Restaurant may only use the Processor payment services to accept payment for products and services sold by it to its Consumers and, if applicable, only for the type of sales described in Restaurant’s application for payment services with Processor. Restaurant agrees that the Processor may provide BakeStreet with access to Restaurant’s data and settings in the Processor’s systems, so that BakeStreet may manage Restaurant’s account and provide Services. Restaurant shall only use the payment processing services in the legal name of the registered Restaurant. Restaurant shall not resell, hire or allow third parties to use the payment services available through the Services to enable such third parties to receive payment for their services.Payment processing services for Restaurants may be provided by Stripe. By signing up with BakeStreet or continuing to operate as a Restaurant hereunder, you agree to Stripe’s Terms and Conditions.
   7. Taxes. Unless otherwise required by applicable laws, Restaurant is solely responsible for calculating, reporting and remitting all taxes, levies, duties or similar government assessments of any nature (collectively, “Taxes”), including, for example sales taxes and meal taxes, if applicable, assessable by any jurisdiction whatsoever associated with (i) Orders and (ii) all amounts payable by Restaurant to BakeStreet pursuant to this Agreement. All payments to BakeStreet are payable in full without reduction for Taxes, except as expressly set forth herein. In the event BakeStreet is required under applicable law to calculate, report and remit any Taxes in connection with the transactions described in this Agreement, BakeStreet shall retain the proper amount of such Taxes from the Grand Total and/or, at BakeStreet’s election, invoice Restaurant for such Taxes pursuant to Section 6(b) of the General Terms. Restaurant is responsible for payment of all Taxes, excluding taxes owed by BakeStreet based on BakeStreet’s income. If BakeStreet has the legal obligation to pay or collect Taxes for which Restaurant is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Restaurant, unless Restaurant provides BakeStreet with a valid tax exemption certificate authorized by the appropriate taxing authority.
   8. Overdue Charges. If any invoiced amount is not received by BakeStreet by the due date, then without limiting BakeStreet’s rights or remedies, BakeStreet may, in its sole discretion, (i) charge interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and/or (ii) condition the future provision of Services on payment terms different than those specified in Section 6 herein and the applicable Order Form agreed between the parties.
   9. Card on File. BakeStreet may require Restaurant to have a payment card or other payment method associated with Restaurant’s Account. Restaurant authorizes BakeStreet to charge all Fees to the payment method designated in Restaurant’s Account. If there is a problem charging the selected payment method, BakeStreet may charge any other valid payment method associated with Restaurant’s Account. BakeStreet reserves the right to request additional information from Restaurant if BakeStreet has reason to believe, in its sole discretion, that a payment method may be fraudulent. If Restaurant’s payment card expires or is replaced by Restaurant’s issuing bank, the card network may provide BakeStreet with updated card details associated with the same account. BakeStreet may use these new details to prevent any interruption to Services. In addition, BakeStreet may charge another stored payment card if Restaurant’s default payment is declined or no longer available to BakeStreet.
   10. Suspension of Services for Non-Payment. If any amount owed by Restaurant under this Agreement (including any Order Forms) are thirty (30) or more days overdue, BakeStreet may, without limiting BakeStreet’s other rights and remedies, suspend the provision of any Services to Restaurant and/or Restaurant’s access to the Platform until all such amounts are paid in full.
   11. Refunds to Consumers; Sales Transaction Refunds and Chargebacks.
       1. Refunds to Consumers. BakeStreet reserves the right, in its sole discretion, to issue a refund to a Consumer, and in the event BakeStreet elects to issue a refund, such election shall not obligate BakeStreet to provide a corresponding reimbursement to Restaurant.
       2. Sales Transaction Refunds. Restaurant agrees to pay BakeStreet credit card processing fees and transactions fees as set forth in the Order Form. Restaurant understands that such processing and transaction fees are not refundable, even if Restaurant initiates a refund for a particular sales transaction. Where Restaurant initiates a refund for a particular sales transaction, BakeStreet may deduct the amount of that refund from Restaurant’s Grand Total. Restaurant agrees that it shall not add a surcharge to transactions, except as expressly permitted by, and in full compliance with, applicable law and any relevant Scheme Rules.
       3. Chargebacks. Restaurant agrees to pay chargeback fees as set forth in the Order Form or as otherwise communicated to Restaurant by BakeStreet. Restaurant understands and agrees that it is solely responsible for assessing and disputing any chargebacks, even if BakeStreet assists Restaurant in disputing a chargeback. Restaurant further understands all chargeback fees are nonrefundable, even if Restaurant successfully challenges and reverses a chargeback.
   12. Disputed Fees. If Restaurant disputes any amounts charged as Fees to Restaurant for the Services, Restaurant must notify BakeStreet at support@bakestreet.co (or such other address provided by BakeStreet to Restaurant in writing from time to time) in writing within thirty (30) days of incurring the charge that Restaurant disputes. If Restaurant notifies BakeStreet after thirty (30) days, Restaurant agrees BakeStreet has no obligation to provide any adjustments or refunds with respect to the disputed Fees. Restaurant and BakeStreet shall make good-faith attempts to resolve the dispute within thirty (30) days of Restaurant’s timely notice to BakeStreet. If the dispute is not resolved within the 30-day period, BakeStreet may, at its option, terminate this Agreement (in whole or in part) immediately or suspend Restaurant’s access to the Services. Restaurant agrees that all undisputed amounts shall remain due and payable as specified herein.
   13. Functionality. Restaurant agrees that its subscription or other purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by BakeStreet regarding future functionality or features. Notwithstanding any terms of this Agreement to the contrary, BakeStreet may modify or update any aspects of the Services in its discretion. In the event any modification or update results in a material reduction by BakeStreet of the scope, features or functionality of the Services set forth in the Order Form, Restaurant may, within thirty (30) days of the effective date of such modification or update, terminate this Agreement upon written notice to BakeStreet. Restaurant’s failure to provide notice within such notice period is deemed to be Restaurant’s acceptance of BakeStreet’s modification and/or update to the Services. The Services may contain or use third-party materials, products or services, and BakeStreet reserves the right to replace, supplement or discontinue any such materials, products or services.
   14. Early Termination Fee. If BakeStreet permits Restaurant to terminate a Service prior to the end of the initial Order Form Service Term or any subsequent renewal term (other than due to BakeStreet’s material breach pursuant to Section 8(c)), Restaurant shall immediately pay BakeStreet (i) any amounts due and owing to BakeStreet under this Agreement (including, without limitation, Hardware return fees as set forth in Annex 4) and (ii) an amount equal to the aggregate fees (calculated without any discounts) that would otherwise have been payable by Restaurant during the initial Order Form Service Term or relevant renewal term, as applicable, for all terminated Services (including, without limitation, any subscription Fees and Hardware Fees, and excluding per transaction fees) (collectively, the “Early Termination Fee”). The parties agree that it may be difficult to ascertain the actual damages that would result from such early termination by Restaurant and that the above amount is a reasonable estimate of the damages that would be incurred by BakeStreet. The parties acknowledge that this provision is intended to be a genuine estimate of damages and not a penalty. Payment of this Early Termination Fee shall not limit BakeStreet’s right to seek other remedies available under this Agreement or at law.
7. General Representations and Warranties. Restaurant represents and warrants that: it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of Restaurant and have been duly authorized by all necessary corporate action on the part of Restaurant, and constitute a valid and binding agreement of Restaurant; at all times during the Term, Restaurant will comply with the terms of this Agreement and all applicable laws, regulations and ordinances, including laws governing the sale of food or other products offered by Restaurant;
   1. Restaurant Data (including the Restaurant Marketing Materials, Restaurant’s Trademarks and any images of Restaurant’s items or other marketing material made available by Restaurant to BakeStreet hereunder) and BakeStreet’s exercise of any license granted hereunder, do not and will not, infringe, misappropriate or otherwise violate the rights of any third party, including, without limitation, any Intellectual Property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution or any other rights of third parties not specifically identified in this Agreement;
   2. Restaurant has obtained all third-party clearances, permissions and licenses which are necessary in connection with BakeStreet’s use of the Restaurant Data and/or BakeStreet’s exercise of any rights granted to it hereunder, including, but not limited to, licenses to allow BakeStreet to use and display Restaurant Data on the Platform, and BakeStreet shall not be obligated to pay any fees in connection therewith;
   3. Restaurant shall ensure that the tax rates provided to BakeStreet are accurate, complete and up-to- date and shall immediately update and change such tax rates if the tax rates change;
   4. Restaurant is not barred or otherwise legally prohibited from accessing or using any of the Services;and Neither Restaurant nor any of its Authorized Users are, nor shall be at any time, subject to any sanctions imposed by the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury or restricted from doing business under the regulations of OFAC, and neither Restaurant nor any of its Authorized Users are, nor shall be at any time, listed on the Specially Designated Nationals and Blocked Persons List or any other similar list maintained by OFAC.
8. Term and Termination
   1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms hereunder have expired or been terminated by either party (the “Term”).
   2. Service Periods. BakeStreet will provide the specific Service identified in an Order Form, which may include the use of Hardware, subject to the terms and conditions of this Agreement and the applicable provisions of the Product Specific Terms and Descriptions during the Order Form Service Term specified in the applicable Order Form for such Service. After the initial Order Form Service Term ends, unless otherwise specified in the Product Specific Terms and Descriptions or the Order Form, the Order Form Service Term for each Service will automatically renew for consecutive periods of the same duration as the initial Order Form Service Term, unless either party provides the other with at least thirty (30) days’ written notice of its intent not to renew the then-current Order Form Service Term for such Service. If no Order Form Service Term is specified for a Service in the Order Form, unless otherwise specified in the Product Specific Terms and Descriptions, the initial Order Form Service Term for such Service will be one month, and such Order Form Service Term will renew for consecutive one-month periods unless either party provides the other with at least thirty (30) days’ written notice of its intent not to renew the then-current period. Notwithstanding this Section, sales of Goods shall not be subject to an Order Form Service Term unless expressly provided in the applicable Order Form or Sales Confirmation.
   3. Termination. BakeStreet may terminate this Agreement for any reason or no reason, without incurring any liability to you in doing so, upon thirty (30) days’ prior written notice to the other party. In addition, either party may terminate this Agreement at any time for a material breach of this Agreement by the other party if such party fails to remedy such breach within thirty (30) days after receiving notice of the breach. Further, BakeStreet may suspend access to any portion of the Platform, suspend payments to Restaurant, remove some or all Restaurant Data or immediately terminate this Agreement (or any portion thereof), in BakeStreet’s sole discretion, if (i) Restaurant fails to provide BakeStreet or any Processor with any information requested by BakeStreet or Processor about itself including, without limitation, information regarding its owners, financial information, information regarding its products and services or other activities in which it engages, or any other information BakeStreet or its Processor determines is necessary to provide Services to Restaurant or (ii) BakeStreet reasonably believes that Restaurant, its Authorized Users, Restaurant’s Consumers or any third party is engaged in: (x) any activity that may harm BakeStreet, its systems, any BakeStreet IP or any third-party systems; (y) fraudulent or illegal activity or any other activity that could result in legal liability to BakeStreet or any third party; or (z) violation of the terms of this Agreement. In case of a suspension, any such suspension may continue until BakeStreet has received satisfactory assurances that the activity causing the suspension has been cured, and it will not recur.
   4. Effect of Termination. Except as explicitly provided herein, upon termination or expiration of this Agreement, all licenses granted pursuant to this Agreement will cease and Restaurant will immediately cease using the Platform, any Intellectual Property, Confidential Information or other materials licensed or otherwise made available by BakeStreet, subject to any surviving rights that may be granted hereunder. For the avoidance of doubt, the foregoing does not restrict BakeStreet’s rights to the Aggregated Data under Section 9(f) of the General Terms.
   5. Portability and Deletion of Restaurant Data. Upon request by Restaurant made within thirty (30) days after the effective date of termination or expiration of this Agreement, BakeStreet will make Restaurant Data available to Restaurant for export or download. After that thirty (30) day period, BakeStreet will have no obligation to maintain Restaurant Data, and may thereafter delete or destroy all copies of Restaurant Data maintained by BakeStreet. The foregoing does not restrict BakeStreet’s rights to the Aggregated Data under Section 9(f) of the General Terms.
   6. Survival. The terms of this Agreement (including the applicable Annex) which by their nature are intended to survive termination or expiration hereof shall survive, including the following provisions: Sections 1, 5, 6, 7, 8(d), 8(e), 8(f), 9, 10, 11,12(c), 12(e), and 13 of these General Terms; Sections 1(c) and 5 of Annex 1 (BakeStreet Platform Terms); Sections 1(c) and 1(d) of Annex 2 (Professional Services); Sections 2(a), 2(b), 3, 4, 5, and 7 of Annex 3 (BakeStreet POS Terms); Sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Annex 4 (Hardware Terms) identified as surviving therein.
9. Proprietary Rights and Licenses.
   1. Reservation of Rights. Nothing in this Agreement or the performance thereof will operate to grant Restaurant any right, title or interest, whether by implication, estoppel or otherwise, in or to the BakeStreet IP, other than the limited rights expressly granted to Restaurant hereunder. As between the parties, BakeStreet exclusively owns, and reserves all rights, title, and interest in and to the BakeStreet IP.
   2. License to Restaurant Data. Restaurant grants to BakeStreet and its Affiliates a worldwide, non- exclusive, royalty-free, fully paid-up license to access, use, modify, translate, process, copy, distribute, perform, export and display Restaurant Data (i) to provide, maintain, and update the Services; (ii) to prevent or address service, security, support or technical issues; or (iii) as otherwise authorized by Restaurant. Restaurant is solely responsible for Restaurant Data, including, without limitation, its accuracy, quality, content and legality, the means by which it is acquired, and any transfer of Restaurant Data in connection with or outside of the Services by Restaurant, any of its Authorized Users, or any third party authorized by Restaurant. Without limiting the foregoing, Restaurant represents and warrants that it has secured all rights in and to Restaurant Data from its Authorized Users or third parties as may be necessary to grant the license to Restaurant Data, and for BakeStreet to perform the Services using Restaurant Data. As part of this representation and guarantee, Restaurant represents and warrants that it either owns the copyright or other Intellectual Property rights to any images or other Restaurant Data provided to BakeStreet to perform the Services, or Restaurant has acquired all necessary worldwide, fully paid-up license rights for BakeStreet to perform the Services using the Restaurant Data, including but not limited to rights to copy, transmit and display on the Platform or on other website or advertising any images provided by Restaurant or used on the Restaurant Website as may be requested pursuant to an Order Form. Restaurant will provide BakeStreet written proof of ownership or sufficient license rights to Restaurant Data upon demand.
   3. License to Feedback. Restaurant grants to BakeStreet and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Restaurant or Authorized Users relating to any of the Services, Beta Services or any other BakeStreet product or service without obligation or restriction of any kind.
   4. License to Restaurant’s Trademarks and Restaurant Marketing Materials. Restaurant grants to BakeStreet and its Affiliates a worldwide, royalty-free license to use and display any of Restaurant’s Trademarks and all Restaurant Marketing Materials in connection with BakeStreet’s performance of the Services, to disclose that BakeStreet provides services to Restaurant, to market and promote Restaurant’s products and other promotional activities undertaken by BakeStreet relating to the Platform. Restaurant is solely responsible for obtaining all necessary rights, permissions, consents and licenses necessary for BakeStreet to use third-party materials contained in Restaurant Marketing Materials in accordance with this Agreement.
   5. License to BakeStreet’s Trademarks. During the Term, BakeStreet grants to Restaurant a limited, non- exclusive license to use BakeStreet’s Trademarks solely in connection with any co-branded marketing materials developed pursuant to Professional Services or Goods provided by or on behalf of BakeStreet to Restaurant under this Agreement. All goodwill generated from Restaurant’s use of BakeStreet’s Trademarks as set forth herein shall inure to the benefit of BakeStreet.
   6. Aggregated Data. Restaurant agrees that BakeStreet may collect, create, use and disclose Aggregated Data for its business purposes, including, without limitation, industry analysis, benchmarking, analytics, and marketing. Without limiting the foregoing, BakeStreet Aggregated Data may include Restaurant Consumer Data and BakeStreet Consumer Data that has been deidentified such that it no longer constitutes “personal data” or any similar term under applicable privacy and data security laws and process such information for its own lawful business purposes, including without limitation for purposes of creating data insights and analytics.
10. Limitation of Liability.
    1. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BakeStreet’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY RESTAURANT HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY.
    2. Exclusion of Consequential and Related Damages. NEITHER BakeStreet NOR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS WILL BE LIABLE TO RESTAURANT OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING IN EACH CASE OF THE FOLLOWING, WHETHER DIRECT OR INDIRECT, FOR ANY LOSS OF PROFITS, REVENUES, INCOME, DATA, BUSINESS INTERRUPTION OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE SERVICES, WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF BakeStreet HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. Basis of the Bargain. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
11. Indemnification.
    1. Indemnification by BakeStreet. BakeStreet will defend Restaurant against any claim, demand, suit or proceeding made or brought against Restaurant by a third party alleging that the Platform infringes or misappropriates such third party’s Intellectual Property rights (a “Claim Against Restaurant”), and will indemnify Restaurant from any damages, attorney fees and costs finally awarded against Restaurant as a result of a Claim Against Restaurant, or for amounts paid by Restaurant under a court-approved settlement of a Claim Against Restaurant, provided Restaurant (i) promptly gives BakeStreet written notice of the Claim Against Restaurant, (ii) gives BakeStreet sole control of the defense (including selection of attorneys) and settlement of the Claim Against Restaurant (except that BakeStreet may not settle any Claim Against Restaurant unless the settlement releases Restaurant of all liability) and (iii) gives BakeStreet necessary assistance, at BakeStreet’s reasonable expense (not to include payment of wages, travel, or lodging costs for Restaurant employees or officers). The above defense and indemnification obligations do not apply to the extent a Claim Against Restaurant arises from use of Restaurant Data, Restaurant’s breach of this Agreement, misuse of the Platform or Restaurant Website, modification of the Platform or Restaurant Website, or Restaurant’s failure to use any enhancements, modifications or updates to the Platform or Services (including with any Hardware) that have been made available by BakeStreet. If BakeStreet receives information about an alleged infringement or misappropriation claim related to the Platform or Services, BakeStreet may, in its discretion and at no additional cost to Restaurant: (1) modify the Platform or Services to attempt to ameliorate the alleged infringement or misappropriation; (2) obtain a license for Restaurant’s continued use of the Platform or Services in accordance with this Agreement; or (3) terminate Restaurant’s subscriptions for the Services upon 30 days’ written notice and refund Restaurant any prepaid fees covering the remainder of the term of the terminated Order Form. Notwithstanding any contrary provision in this Agreement, if BakeStreet provides any of the remedies set forth in this Section 11(a), Restaurant agrees that such action satisfies BakeStreet’s obligations under this Agreement, and Restaurant is not eligible for further relief. This Section 11(a) states BakeStreet’s sole liability to, and Restaurant’s exclusive remedy against BakeStreet for type of claim described in this Section 11(a).
    2. Indemnification by Restaurant. Restaurant will indemnify, defend (at BakeStreet’s option) and hold BakeStreet and its Affiliates and their respective directors, officers, employees, contractors, agents, successors and assigns harmless from and against any damage, cost, loss, liability and expense (including, without limitation, attorneys’ and experts’ fees and costs) incurred in connection with any claim, demand, suit or proceeding made or brought against BakeStreet by a third party arising out of or alleging that Restaurant Data infringes or misappropriates such third party’s Intellectual Property rights or violates applicable law, or any claims by a third party or by BakeStreet in connection with (i) Restaurant’s breach or alleged breach of this Agreement or of any applicable law, (ii) illness or any harm associated with the provision, handling, delivery and/or consumption of any items in an Order, (iii) any response by BakeStreet to any Legal Process, (iv) Restaurant’s violation of any third-party right, including any right of publicity, confidentiality, property or privacy right, (v) any dispute between Restaurant and a third party, (vi) any activities under Restaurant’s Account, (vii) Restaurant’s use of any BakeStreet Consumer Data and/or Restaurant Consumer Data; (viii) negligent or willful misconduct of Restaurant or any of its officers, directors, employees, contractors, consultants, service providers or agents; (ix) Restaurant’s failure to maintain reasonable security in connection with the use of BakeStreet POS; and (x) any claim that Restaurant is in breach of the terms of any agreement entered into between it and any Processor, as well as any fines, fees, penalties and chargebacks for which BakeStreet is charged as a result of Restaurant’s entering into such agreement or with respect to any claims by a Processor (each a “Claim Against BakeStreet“). Restaurant will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against BakeStreet without the prior written consent and approval of BakeStreet. BakeStreet reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Restaurant (without limiting Restaurant’s indemnification obligations), and Restaurant agrees to cooperate with BakeStreet’s defense of that claim. If the defense or settlement is assumed by Restaurant, BakeStreet may at any time thereafter elect to take over control of the defense and settlement of the claim.
12. Beta Services.
    1. Beta Services. BakeStreet may, but does not have the obligation to, offer Restaurant to try Beta Services at no additional charge. Restaurant may accept or decline any such trial in Restaurant’s sole discretion. Beta Services will be designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes only, and not for production use. They are not considered “Services” under this Agreement, are not supported and may be subject to additional terms.
    2. Term and Availability of Beta Services. Unless otherwise stated in an Order Form, or in the specific terms applicable to such Beta Services, any Beta Services trial period will expire upon the earlier of (i) one (1) year from the trial start date, (ii) the termination by either party of its provision or use, as applicable, of the Beta Services, or (iii) the date that a version of the Beta Services becomes generally available. BakeStreet reserves the right to modify or terminate the Beta Services, or to limit access to the Beta Services, at any time, in its sole discretion, with or without notice. Except as otherwise set forth in an Order Form, Restaurant may discontinue its use of the Beta Services at any time upon notice to BakeStreet.
    3. Data. The content, data and information made available to BakeStreet in connection with the Beta Services shall be considered Restaurant Consumer Data, BakeStreet Consumer Data and/or Restaurant Data, as applicable, and all related terms and conditions shall apply. Further, any data that is derived or aggregated, in deidentified form, regarding Restaurant’s use of the Beta Services shall be considered Aggregated Data under this Agreement and all related terms and conditions shall apply.
    4. Access and Use Restrictions. Restaurant agrees to (a) test the Beta Services and cooperate with BakeStreet in evaluating the Beta Services, (b) access and use the Beta Services only for evaluation and testing purposes and (c) provide BakeStreet with feedback as reasonably requested by BakeStreet from time to time. Restaurant shall not: (a) make the Beta Services available to, or use the Beta Services for the benefit of, anyone other than Restaurant; (b) use the Beta Services for any fraudulent or illegal purposes or in any manner that could damage, disable, overburden, impair or otherwise interfere with BakeStreet making the Beta Services available to its customers generally; or (c) access or use the Beta Services in order to build a competitive product or service.
    5. No Liability or Warranties. BakeStreet will have no liability for any harm or damage arising out of or in connection with the Beta Services, and Restaurant accepts all risk associated with its use of the Beta Services. THE BETA SERVICES AND ANY OTHER MATERIALS PROVIDED BY BakeStreet IN CONNECTION WITH THE BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,”AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BakeStreet SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
13. Miscellaneous.
    1. Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing and if intended for Restaurant shall be directed to Restaurant’s address set forth on the Order Form or such other address provided by Restaurant to BakeStreet pursuant to this Notice provision, and if intended for BakeStreet shall be directed to the attention of Restaurant’s partner success manager at support@bakestreet.co. Such notice will be deemed to have been duly given (i) when received, if personally delivered; (ii) the first business day after sending by email; (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
    2. Amendments. This Agreement may be modified, amended or updated by BakeStreet from time to time by posting updated terms and conditions. BakeStreet shall provide Restaurant with reasonable notice, including via transmission of such updated terms via electronic means and in connection with any Order Forms, of any material updates to this Agreement. Restaurant’s continued use of the Services on or after the date the updated version of this Agreement becomes effective constitutes Restaurant’s acceptance of the updated version of this Agreement. Without limiting the foregoing, the Order Form may be amended to add or subtract Services set forth therein pursuant to the oral agreement of Restaurant and BakeStreet provided that BakeStreet shall not be bound by any such oral agreement unless BakeStreet provides Restaurant with written notice (which may be pursuant to email) of such addition, subtraction or change following such oral agreement (each, a “Service Amendment”). Restaurant agrees that the Services subject to any Service Amendment shall continue to be subject to this Agreement.
    3. Relationship of the Parties. BakeStreet is performing the Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Restaurant and BakeStreet or any BakeStreet employees or other persons performing BakeStreet’s obligations hereunder. Except as expressly set forth herein, neither party will have the authority to act on behalf of or bind the other party in any manner.
    4. Force Majeure. Except for obligations to pay money, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include hosting provider or service provider failure or delay, denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, disease, terrorism and governmental action (each, a “Force Majeure Event”).
    5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver by either party of any default, misrepresentation or covenant in this Agreement, whether intentional or not, will be deemed to extend to any prior or subsequent default, misrepresentation or covenant under this Agreement or affect in any way any rights arising by virtue of any prior or subsequent occurrence.
    6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however that BakeStreet may assign this Agreement in its entirety (including all Order Forms), without Restaurant’s consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Restaurant shall promptly notify BakeStreet of any merger, acquisition, corporate reorganization or sale of all or substantially all of its assets and provide all necessary documentation requested by BakeStreet evidencing such transfer. Upon BakeStreet’s written consent (email is sufficient), Restaurant may transfer this Agreement and all of its rights and obligations hereunder to a third party and shall execute all documentation reasonably requested by BakeStreet to effectuate such transfer. Restaurant shall indemnify and hold harmless each of BakeStreet and its Affiliates’ respective directors, officers, employees, contractors, agents, successors and assigns from and against any damage, cost, loss, liability and expense (including, without limitation, attorneys’ fees and costs) arising out of such assignment or transfer. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment or transfer of this Agreement made in contravention of this provision shall be null and void and of no effect.
    8. Communications With BakeStreet. BakeStreet may now or in the future contact Restaurant for various purposes in connection with the Services. By entering into this Agreement, Restaurant grants its prior express consent to receive all communications, including automated phone calls and text messages, prerecorded phone messages, facsimile messages and electronic mail, from or on behalf of BakeStreet, its Affiliates and its or their employees, agents and contractors (including third-party service providers), for any purpose. Message and data rates may apply. Restaurant represents that it is the owner or authorized user of the phone number(s) associated with Restaurant’s Account, and that the person executing this Agreement on behalf of Restaurant is authorized to approve any applicable charges. This consent shall be irrevocable and shall continue in force so long as Restaurant continues to be subject to this Agreement or continues to use BakeStreet’s Services, unless applicable law requires such consent to be revocable. Nothing in this Section shall be construed as an acknowledgment that BakeStreet is required under applicable law to obtain consent to send any such communications. Restaurant understands and agrees that the calls placed by BakeStreet may be automatically dialed. Restaurant consents to receiving such calls and agrees they will not be considered “unsolicited” calls or telemarketing calls for purposes of applicable state or federal laws. Restaurant agrees that BakeStreet may record and maintain interactions with Restaurant personnel, including by recording phone calls, in accordance with applicable law. Further, BakeStreet and its service providers may receive and store data about text messages exchanged, including the date and time of the text message, the phone number, and the content of the text message.
    9. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York, and the parties irrevocably consent to the personal jurisdiction and venue therein.
    10. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Restaurant and BakeStreet regarding Restaurant’s use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency between an applicable Order Form, and these Terms and Conditions, these Terms and Conditions will govern unless the Order Form expressly provides that it is intended to govern in the event of such conflict or inconsistency. Without limiting the foregoing, this Agreement prevails over any of Restaurant’s general terms and conditions of purchase regardless of whether or when Restaurant has submitted its purchase order or such terms. Fulfillment of Restaurant’s order for Goods or other Services does not constitute acceptance of any of Restaurant’s terms and conditions and does not serve to modify or amend this Agreement.
    11. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

ANNEX 1

BAKESTREET PLATFORM TERMS

These BakeStreet Platform Terms (“BakeStreet Platform Terms”) govern Restaurant’s access to and use of the Platform and related Services that BakeStreet provides to Restaurant.

1. Platform Access and Use

1. License to Platform. During the applicable Order Form Service Term, and subject to Restaurant’s compliance with the terms and conditions of this Agreement and the applicable Order Form, BakeStreet grants Restaurant a limited, non-sublicensable, non-transferable, non- exclusive license to access and use, solely for Restaurant’s internal business purposes, the portions of the Platform that BakeStreet has agreed pursuant to the applicable Order Form to make available to Restaurant excluding BakeStreet POS .
2. Access to BakeStreet’s Administrative Dashboard. To the extent deemed applicable by BakeStreet, BakeStreet will provide Restaurant with web and mobile access to an administrative dashboard. For purposes of this Agreement, the administrative dashboard shall be deemed a part of the Platform, and all access and usage rights and restrictions set forth in Section 1(c) of this Annex 1 with respect to the Platform shall apply to the administrative dashboard. Restaurant shall keep all Restaurant Data current and accurate by making updates on the administrative dashboard as frequently as needed.
3. Use Restrictions.
   1. Restaurant shall not: (A) make the Platform available to, or use the Platform for the benefit of, anyone other than Restaurant; (B) sell, resell, license, sublicense, distribute, rent or lease the Platform; (C) use the Platform for any fraudulent or illegal purposes or in any manner that could damage, disable, overburden, impair or otherwise interfere with BakeStreet making the Platform available to its customers generally; (D) store or transmit infringing, libelous, obscene, immoral, vulgar or otherwise unlawful or tortious material through the Platform; (E) store, transmit, display or otherwise use malicious code, or material that violates the rights of any third party including, without limitation, Intellectual Property, proprietary, privacy or similar rights through the Platform; (F) interfere with or disrupt the integrity or performance of the Platform or content contained therein; (G) attempt to gain unauthorized access to the Platform or its related systems or networks; (H) permit direct or indirect access to or use of the Platform in a way that circumvents a contractual usage limit, or otherwise in any manner not expressly authorized in this Agreement; (I) copy the Platform or its content or any part, feature, function or user interface thereof; (J) access the Platform or its content in order to build a competitive product or service; (K) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform or any part thereof; (L) modify, translate, or otherwise create derivative works of the Platform or its content; (M) pharm, pretext, spider, crawl, or scrape the Platform or (N) allow the removal, alteration, covering, or obscuring of any of BakeStreet’s Trademarks that appear on the Platform or its content.
   2. BakeStreet reserves the right to, in its sole discretion: (A) suspend or immediately terminate Restaurant’s access to the Platform in the event of a breach by Restaurant, including any Authorized User, of Section 1(c)(i) of this Annex 1; (B) remove or delete any material that BakeStreet determines violates Section 1(c)(i) of this Annex 1 and (C) cancel Orders due to disputed charges, fraudulent sign-ups or Orders, Account deactivations, any violations of BakeStreet’s Terms of Service by any Consumers or as otherwise deemed appropriate by BakeStreet.
4. Restaurant Platform Support and Consumer Support Services; Hardware. Unless otherwise specified in an Order Form for the Platform and related Services, and subject to Restaurant’s compliance with the terms of this Agreement, BakeStreet will provide Restaurant with reasonable support services for the Platform by calling BakeStreet at such customer support number as made available by BakeStreet to Restaurant. Further, BakeStreet may designate a dedicated partner success manager for Restaurant upon acceptance of this Agreement (“Shop Support”).

Restaurant agrees to reasonably cooperate with BakeStreet to troubleshoot any malfunctioning Hardware, including by telephonic support or in-person support. If BakeStreet determines, in its reasonable discretion, that the Hardware should be replaced, BakeStreet will ship replacement Hardware to Restaurant, subject to Restaurant’s compliance with the return procedure communicated by BakeStreet and the terms of Annex 4. Notwithstanding the foregoing, BakeStreet may in its discretion not provide Shop Support with respect to Hardware (including Hardware) not running the most-current version of the Platform, where Restaurant has failed to use any enhancements, modifications or updates to the Platform or Services that BakeStreet has made available or where Restaurant has interfered with BakeStreet’s ability to perform device management as contemplated in Section 4(b) of the General Terms. Separately and in addition to Shop Support, BakeStreet will provide reasonable customer support services to Consumers solely with respect to its Online Ordering Platform pursuant to and in accordance with BakeStreet’s Terms of Service.

BakeStreet may perform maintenance on or provide updates to the Platform, which may result in service interruptions, delays, or errors. BakeStreet will not be liable for any such interruptions, delays, or errors, including without limitation, lost business as a result of such interruptions, delays or errors. BakeStreet may, at its discretion, release enhancements, improvements or other updates to any software. If BakeStreet notifies Restaurant that such update requires an installation, Restaurant shall integrate and install such update into Restaurant’s systems within the earlier of (i) fourteen (14) calendar days of receipt of such notice or (ii) such other date as indicated by BakeStreet. Failure to install any updates in a timely fashion may impair the functionality of the Platform. BakeStreet shall have no liability for Restaurant’s failure to properly install the most current version of any software or any update, and BakeStreet shall have no obligation to provide support or services for any outdated versions. Certain software can automatically install, download and/or deploy updated and/or new components, which may include a new version of the software itself. Restaurant shall not, in any event or in any manner, interrupt, delay or otherwise impede the updating process.

3. Restaurant Responsibilities.

1. Order Processing. Restaurant agrees to promptly provide BakeStreet with information BakeStreet reasonably requires to provide the Platform and related Services. Without limitation, Restaurant shall provide to BakeStreet and maintain the accuracy of (i) the items offered by Restaurant to Consumers; (ii) the prices of items offered by Restaurant to Consumers, including any applicable fees or taxes; (iii) the descriptions of any items offered by Restaurant to Consumers; and (iv) Restaurant’s hours of operation, including changes due to holidays or other events (collectively, the “Specifications”). The Specifications must be at least as favorable to the Consumer as that which is available for Restaurant’s standard takeout menu or as offered by Restaurant to any Consumer either directly or through any other third-party ordering, pickup or delivery service. Restaurant is solely responsible for accuracy of the Specifications. Restaurant further agrees it will accept and timely honor all Orders placed by Consumers on the Online Ordering Platform, and Restaurant is solely responsible to Consumers for any delay or errors that may occur in connection with any Orders. If Restaurant collects tips from Consumers through the Platform, Restaurant represents and warrants it will distribute such tips in accordance with applicable law.
2. Prohibition on Sale of Alcohol. Restaurant may not offer alcohol through the Platform without BakeStreet’s prior written consent. Restaurant shall only offer alcoholic beverages in compliance with all applicable laws, rules and regulations, and subject to the terms and conditions of this Agreement. Restaurant shall, and will be solely responsible to ensure, that the recipient of any alcoholic beverage is of age to purchase alcohol. Alcoholic beverages may not, under any circumstances, be delivered through contactless delivery. Restaurant acknowledges and agrees that all sales of alcohol made through the Platform are processed and made by Restaurant, and BakeStreet is not a party to the transaction between Restaurant and the Consumer for the sale of alcohol. Restaurant, and not BakeStreet, shall be responsible for the delivery of any Orders containing alcohol.
3. Prohibition on Certain Regulated Goods and Services. Restaurant may not offer any regulated products or services via the Platform, including, without limitation, marijuana or marijuana dispensary services, any cannabis-based products, guns, ammunition, flammable and combustible substances, and gambling services (online gambling, lottery, games of chance or fantasy sports leagues). In addition, Restaurant may not (i) offer any illegal substances, drugs, or drug paraphernalia or any pyramid or Ponzi investment schemes via the Platform or (ii) operate as an adult entertainment business offering adult-related products and services, a psychic business, or currency exchange. BakeStreet may, in addition to other available remedies under this Agreement, suspend access to any portion of the Platform, remove some or all Restaurant Data or immediately terminate this Agreement (or any portion thereof), in BakeStreet’s sole discretion, if BakeStreet believes that Restaurant or its Authorized Users is in violation of this provision.
4. Internet Connectivity. Restaurant is responsible for obtaining and maintaining a high-speed internet connection and all related software, hardware (including network systems) and internet service provider relationships necessary or appropriate for Restaurant to properly access the Platform and the Services, including when utilizing Hardware provided pursuant to Annex 4. BakeStreet has no responsibility or liability under this Agreement for any unavailability or failure of, or non-conformity or defect in the Services that is caused by or related in any manner to any failure of Restaurant to obtain and maintain all such internet connectivity and related software, hardware, equipment and relationships.
5. Promotions and Offers. In its sole discretion, BakeStreet may from time-to-time notify Restaurant (with email notice permissible) of promotions and offers to be extended to Consumers (“Required Promotions”). Restaurant agrees that it will fully participate in all Required Promotions as a condition of using the Platform; provided that if Restaurant objects to any Required Promotions, then Restaurant shall notify BakeStreet of such objection in writing within five (5) days of BakeStreet’s notice of such Required Promotion (the “Objected To Promotion”). If BakeStreet continues to require Restaurant to participate in the Objected To Promotion after receiving such notice, then Restaurant may terminate this Agreement upon written notice to BakeStreet within five (5) days of BakeStreet’s response to Restaurant’s objection. If Restaurant fails to object to a Required Promotion within the time period set out in this Section, Restaurant is deemed to agree to participate in such Required Promotion. Restaurant will honor and fulfill the terms of all Required Promotions to all eligible Consumers who comply with the terms of such Required Promotions.
6. Additional Representations and Warranties. In addition to and without limiting Restaurant’s representations and warranties elsewhere in this Agreement, Restaurant further represents and warrants that:

1. Restaurant’s use of the Platform or execution of this Agreement does not and will not conflict with Restaurant’s obligations to any third parties, including, without limitation, franchise agreements;
2. Restaurant will charge Consumers the same prices (or lower) that it charges for consumers who do not use the Platform;
3. Restaurant will maintain the accuracy of the information made available to Consumers through the Platform, including menu prices;
4. Restaurant will timely and properly process all Orders, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform; and
5. Any images included on the Platform of any items offered by Restaurant through the Platform are accurate representations of such items.
6. Disclaimers. 

1. EXCEPT AS EXPRESSLY PROVIDED IN THESE PLATFORM TERMS, IN ADDITION TO DISCLAIMERS SET FORTH IN THE OTHER ANNEXES OF THIS AGREEMENT, BakeStreet MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PLATFORM OR THE SERVICES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BakeStreet SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
2. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR THE OTHER DISCLAIMERS SET FORTH IN THE OTHER ANNEXES OF THIS AGREEMENT, BakeStreet DISCLAIMS ANY WARRANTY THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, FREE OF ERRORS OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY RESTAURANT WILL BE RESOLVED. THE PLATFORM, THE SERVICES, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY BakeStreet HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FURTHER, BakeStreet MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE RESTAURANT MAY EARN THROUGH THE PLATFORM OR SERVICES.
3. IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE OTHER ANNEXES OF THIS AGREEMENT, IN NO EVENT WILL BakeStreet BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY FOOD OR PRODUCTS DELIVERED BY OR ON BEHALF OF RESTAURANT TO CONSUMERS; (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES OR THE PLATFORM FOR ORDERS, OR LOSS OF DATA), (III) THE PERFORMANCE OR NON-PERFORMANCE OF RESTAURANT IN CONNECTION WITH THE USE OF THE PLATFORM OR SERVICES OR THE FULFILLMENT OF ORDERS, (IV) RESTAURANT’S PROVISION, CALCULATION, REPORTING OR REMISSION OF TAXES, OR (V) RESTAURANT’S FAILURE TO USE ANY ENHANCEMENTS, MODIFICATIONS OR UPDATES TO THE PLATFORM OR SERVICES (INCLUDING WITH ANY HARDWARE) THAT HAVE BEEN MADE AVAILABLE BY BakeStreet.
   THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

ANNEX 2

PROFESSIONAL SERVICES

1. Professional Services

1. BakeStreet Obligations. BakeStreet will provide the Professional Services set forth in the Order Form. 
2. Third-Party Services.
   1. Access Authorization. Certain Professional Services, such as marketing services, reviews management and website design and management services, may require BakeStreet to access accounts or listings maintained by third parties. Restaurant authorizes BakeStreet, and hereby represents and warrants that it has obtained all permissions and consents required to authorize BakeStreet, to access and manage such accounts or listings as reasonably necessary for BakeStreet to provide such Professional Services to Restaurant.
   2. Use of Third-Party Services. Certain Professional Services, such as delivery services, may require or permit Restaurant to utilize Third-Party Services. Restaurant agrees that the Third-Party Services provided by third parties are governed by the terms and conditions imposed by such third parties, and BakeStreet is neither a party to, nor responsible for the transaction between Restaurant and the third party, or any conduct, products, or services arising from such transaction. BakeStreet shall not be responsible for the performance of such third parties and disclaims all liability arising out of or in connection with Restaurant’s use of the Third-Party Services.
3. Website URL. If the Professional Services agreed upon by the parties include website design or management, the parties agree that (i) BakeStreet shall own any website URL acquired by BakeStreet; and (ii) Restaurant shall own any website URL acquired by Restaurant. Where Restaurant acquires the website URL, Restaurant grants BakeStreet a limited, revocable, non-sublicensable, non-transferable license to access and manage the Restaurant-acquired URL to enable the provision by BakeStreet of the Professional Services.
4. Ownership of Professional Services Work Product. Subject to BakeStreet’s rights reserved in this Agreement, including any Order Forms (which, for the avoidance of doubt, includes BakeStreet’s design templates), all content developed by BakeStreet exclusively for Restaurant as a result of the design services provided under this Agreement (the “Professional Services Work Product”) shall be owned by Restaurant as “works made for hire,” and to the extent that Restaurant does not own such Professional Services Work Product as a matter of law, BakeStreet hereby assigns to Restaurant all of its right, title and interest in and to such Professional Services Work Product. To the extent BakeStreet integrates BakeStreet IP, including any design templates, into any Professional Services Work Product, BakeStreet hereby grants Restaurant a worldwide, fully-paid, non-exclusive, non-transferable, royalty-free right and license to use all such BakeStreet IP solely as incorporated into such Professional Services Work Product and to the extent needed to make full use of such Professional Services Work Product during the Term of this Agreement. For the avoidance of doubt, the foregoing license does not in any fashion extend to, permit, or otherwise enable or authorize Restaurant and/or any third party to use such BakeStreet IP separate and apart from the Professional Services Work Product in which it is embedded or the manner in which BakeStreet embedded it.

ANNEX 3

BakeStreet POS TERMS

These BakeStreet POS terms (“BakeStreet POS Terms”) apply to BakeStreet’s provision of BakeStreet Standalone Payments and BakeStreet POS.

1. License to Access BakeStreet POS. Subject to Restaurant’s compliance with this Agreement and all other terms governing Restaurant’s use of BakeStreet POS and BakeStreet Standalone Payments or other related Services offered by BakeStreet, and as consistent with the services set forth in the applicable Order Form, BakeStreet grants Restaurant a personal, limited, non-exclusive, revocable, non-transferable, non- sublicensable, and non-assignable license to access and use BakeStreet POS and/or BakeStreet Standalone Payments (as specified in the Order Form) for Restaurant’s internal business use solely to conduct point of sale activities and analyze Restaurant’s Restaurant Data.

2.Additional Terms and Policies for BakeStreet POS.

1. Order Form, Restaurant Agreement and Other Terms. Certain areas and/or products available to Restaurant from BakeStreet may have different terms and conditions posted, or they may require Restaurant to agree with and accept additional terms and conditions or policies. If there is a conflict between these BakeStreet POS Terms and the General Terms or other Annexes, the BakeStreet POS Terms take precedence only to the extent of the conflict. If there is a conflict between these BakeStreet POS Terms and an Order Form, the BakeStreet POS Terms takes precedence unless the Order Form expressly provides that it is intended to govern in the event of such conflict or inconsistency.
2. Payment Processor. BakeStreet does not receive full payment card details in its provision of BakeStreet POS and BakeStreet Standalone Payments. BakeStreet has engaged a Processor that conducts payment processing of transactions submitted through BakeStreet POS and BakeStreet Standalone Payments. Restaurant understands and agrees that BakeStreet may share any of Restaurant’s information with BakeStreet’s Processor and that Restaurant is subject to Section 6(e) of the General Terms in connection with such Processor.
3. Sole Solution. If Restaurant has agreed to use BakeStreet POS, Restaurant further agrees that, during the applicable Order Form Service Term for BakeStreet POS, Restaurant shall use BakeStreet POS as its exclusive point of sale system. If Restaurant has agreed to use BakeStreet Standalone Payments, Restaurant further agrees that, during the Order Form Service Term for BakeStreet Standalone Payments, Restaurant shall use BakeStreet Standalone Payments as its exclusive card processing system.
4. Prohibitions. In addition to and without limiting use restrictions elsewhere in this Agreement, in connection with BakeStreet POS and/ or BakeStreet Standalone Payments, Restaurant may not:

1. Use another business’s BakeStreet account;
2. Take any action that (i) may unreasonably encumber the infrastructure of BakeStreet POS and/or BakeStreet Standalone Payments; (ii) interferes or attempts to interfere with the proper working of BakeStreet Services, including BakeStreet POS and BakeStreet Standalone Payments; (iii) bypasses measures that are used to prevent or restrict access to BakeStreet POS and/or BakeStreet Standalone Payments; (iv) circumvents, disables or otherwise interferes with security features of BakeStreet POS and/or BakeStreet Standalone Payments; or (v) uses BakeStreet POS and/or BakeStreet Payments in a way that violates any copyrights, trade secrets, or other rights of BakeStreet or any third party, including privacy or publicity rights;
3. Use BakeStreet POS and/or BakeStreet Standalone Payments in any manner that circumvents Restaurant’s obligation to pay Fees owed to BakeStreet;
4. Access or use BakeStreet POS and/or BakeStreet Standalone Payments through any time-sharing service, service bureau, network, consortium, or other means;
5. Engage in fraudulent or illegal conduct, including but not limited to using BakeStreet POS and/or BakeStreet Standalone Payments to process unauthorized charges or engage in money laundering;
6. Use BakeStreet POS and/or BakeStreet Standalone Payments from a location not authorized by BakeStreet;
7. Attempt to indirectly undertake any of the foregoing; or
8. Engage in any activities when using the BakeStreet POS and/or BakeStreet Standalone Payments that violate any applicable laws, regulations, rules or ordinances.
9. Restaurant Responsibilities.

1. BakeStreet POS and BakeStreet Standalone Payments provide only a payment processing platform. Without limitation, Restaurant is solely responsible for:
   1. Fulfilling and delivering Orders;
   2. Refunding Orders;
   3. Customer service;
   4. Accuracy of any data Restaurant provides to BakeStreet;
   5. Paying taxes, fees and costs associated with Restaurant’s business, including appropriate charging of taxes to Restaurant’s customers;
   6. Reporting, collection and remitting obligations to applicable governmental authorities in connection with Restaurant’s business;
   7. Handling disputes with Restaurant’s customers, including disputes related to chargebacks;
   8. Notifying Restaurant’s customers or end users of taxes or associated obligations; and
   9. Restaurant’s collection, handling and use of any cardholder data, Restaurant Consumer Data, customer information, and other point of sale information collected.
2. In addition to the terms in these BakeStreet POS Terms, Restaurant otherwise agrees to comply with all applicable laws, rules, regulations and ordinances in Restaurant’s use of BakeStreet POS and/or BakeStreet Standalone Payments including, without limitation, any consumer protection, privacy, and data security laws.
3. BakeStreet may use Restaurant’s information to verify compliance with federal laws and regulations, and Restaurant further agrees to provide BakeStreet with additional information reasonably necessary for such verification purposes.
4. Additional Representations and Warranties. In addition to and without limiting Restaurant’s representations and warranties elsewhere in this Agreement, Restaurant further represents and warrants that:

1. Any sales transaction submitted through BakeStreet POS and/or BakeStreet Standalone Payments (a) is genuine and arises from a genuine sale or service that Restaurant directly sold or provided; (b) accurately describes the goods or services sold and delivered to its customer ; and (c) represents the correct amount of goods or services purchased from Restaurant;
2. Restaurant shall fulfill all of its obligations to each of its customers for whom a transaction is submitted through BakeStreet POS and/or BakeStreet Standalone Payments;
3. Restaurant shall resolve any dispute or complaint from a customer directly with that customer;
4. Any transactions or other information submitted through BakeStreet POS and/or BakeStreet Standalone Payments complies with all laws, rules and regulations applicable to Restaurant, including tax laws and regulations and card association rules and regulations;
5. Except in the ordinary course of business, no sales transaction submitted by Restaurant through BakeStreet POS and/or BakeStreet Standalone Payments will represent a sale to any principal, partner, proprietor or owner of the Restaurant; and
6. Restaurant is not engaged in and shall not accept payment for any illegal activity.

Restaurant shall remain solely responsible for compliance with all applicable laws relating to its transactions with its customers, including without limitation any tax laws and card association regulations.

6. Telecommunications.

1. Internet Connection. BakeStreet POS requires a consistent wired or wireless broadband connection to the Internet. Even where the applicable Order Form includes a BakeStreet-provided wireless router, BakeStreet does not provide Internet access or any related services needed to access the Internet. Restaurant is solely responsible for obtaining such connection. Restaurant is solely responsible for the payment of any fees that may be imposed by Restaurant’s Internet or telecommunications service provider. Restaurant’s use of BakeStreet POS and BakeStreet Standalone Payments is subject to: (a) the terms of any agreements Restaurant has with its Internet or telecommunications provider; and (b) availability, transmission range and uptime of Restaurant’s wireless equipment, for which Restaurant and Restaurant’s Internet service provider are solely responsible. Restaurant agrees that BakeStreet shall not bear any liability arising directly or indirectly from or otherwise concerning any termination, suspension, delay or disruption of BakeStreet POS and/or BakeStreet Standalone Payments caused by any issues in relation to Restaurant’s Internet access, any common carrier or any third-party service provider.
2. Offline Transactions. Except as provided in an Order Form, Restaurant may use BakeStreet POS and BakeStreet Standalone Payments to conduct point of sale activities offline. Transactions initiated offline will be queued and submitted for authorization when Internet connectivity to the applicable Hardware is restored. BakeStreet reserves the right to limit the number of offline transactions that may be queued. Unless otherwise specified in an Order Form, offline transactions may not exceed $100 per transaction. Restaurant assumes all risk, responsibility and liability associated with any transaction that Restaurant conducts while BakeStreet POS and/or BakeStreet Standalone Payments is offline.
3. BakeStreet POS Fees.

1. Deposit of Transactions. In connection with the BakeStreet POS, Restaurant must maintain a deposit account (“Merchant Deposit Account”) to enable BakeStreet or its vendors or partners to deposit proceeds of sales transactions Restaurant processes through BakeStreet POS (the “Sales Proceeds”). Restaurant agrees that BakeStreet is not responsible for any delays in deposits of Sales Proceeds due to actions not within BakeStreet’s reasonable control, such as delays caused by banks, hosting providers, payment processors, or other third parties.
2. Debit Authorization. In connection with the BakeStreet POS, Restaurant understands and authorizes BakeStreet to debit all Fees for the BakeStreet POS owed to BakeStreet from the Merchant Deposit Account and/or Sales Proceeds. Restaurant will not change the Merchant Deposit Account without obtaining prior written consent from BakeStreet. If the applicable Fees and other amounts owed under the BakeStreet POS Terms or a debit for such amounts causes the balance in the Merchant Deposit Account to be less than zero ($0), BakeStreet or its partners may (i) charge a late payment fee; (ii) require that Restaurant makes a wire transfer to the Merchant Deposit Account within one (1) banking business day of notice; (iii) collect under any guaranty, (iv) charge the outstanding Fees under the BakeStreet POS Terms to any other payment card designated in Restaurant’s Account; and/or (iv) take any other action authorized by law.

ANNEX 4

HARDWARE TERMS

The following provisions apply to Hardware (“Hardware Terms”). 

The following provisions 1 to 6 of these Hardware Terms apply (i) with respect to Hardware acquired at any time by Restaurant from BakeStreet for use in connection with the Online Order Platform and (ii) with respect to any other Hardware acquired after April 16, 2024 (the “Hardware Measurement Date”).

1. General. BakeStreet will provide Restaurant with the Hardware specified in the applicable Order Form. Any Hardware (including, without limitation, printers, tablets or other hardware) provided by BakeStreet will remain BakeStreet’s sole property and Restaurant shall only use the Hardware in connection with, as applicable, the Platform or other Services provided by BakeStreet pursuant to this Agreement. Without limiting the foregoing, Restaurant’s use of the Hardware is governed by this Agreement and any other instructions that BakeStreet may communicate to Restaurant from time to time. Restaurant is solely responsible for any use of the Hardware not expressly contemplated by this Agreement. Restaurant will not upload, download or otherwise transmit any material on the Hardware that contains viruses or any other computer code, files or programs that could disable, overburden, impair the proper working order, interrupt, destroy or limit the functionality of the Hardware or the Platform. Restaurant shall have no right, title or interest in or to the Hardware except the right to possession and use thereof during the applicable Order Form Service Term and pursuant to the conditions in this Agreement. The Hardware shall remain personal property, regardless of whether or not it is affixed to any real property at Restaurant’s location. Restaurant shall at all times protect and defend, at Restaurant’s own cost and expense, the title and interest of BakeStreet from and against all claims, liens and legal processes of any trustee in bankruptcy, receiver, creditor or other successor of Restaurant and keep the Hardware free and clear from all such claims, liens, processes and any other encumbrance. Restaurant shall not sublease, transfer or dispose of the Hardware or grant or permit any lien on them. Restaurant agrees that it will not mortgage or otherwise encumber the Hardware. The Hardware shall be located in the Restaurant’s facility, and neither Restaurant, nor its employees shall remove, or permit (by act or omission) the Hardware to be removed from the Restaurant’s facility without the prior written consent of BakeStreet. BakeStreet will use commercially reasonable efforts to meet the estimated delivery dates specified in the applicable Order Form, but Restaurant hereby acknowledges that such dates are estimates only. Further, BakeStreet reserves the right to cancel or delay shipment of the Hardware if Restaurant fails to make any payment due to BakeStreet, or otherwise fails to comply with this Agreement or the terms and conditions of any other agreement between Restaurant and BakeStreet. BakeStreet will not be liable to Restaurant or to any other party for any delay in the delivery of the Hardware. Restaurant shall comply with any end user license agreements to which the Hardware is subject. BakeStreet may elect to replace any Hardware with such other Hardware as BakeStreet deems appropriate and Restaurant shall cooperate with BakeStreet with respect to such replacement, including, without limitation, returning Hardware to BakeStreet promptly following BakeStreet’s request. BakeStreet does not support hardware purchased from third-party vendors and use of such unauthorized hardware is at Restaurant’s sole risk.
2. Installation. BakeStreet may provide installation services of certain Hardware to Restaurant at Restaurant’s location, which shall be considered a “Service” under the Agreement. Installation services may be performed by a third-party service provider. Restaurant agrees to cooperate with BakeStreet or such third- party service provider and promptly provide information as requested to schedule and perform the installation, including, without limitation, allowing access to the premises at the time of the scheduled installation. If installation cannot be completed at the scheduled time due to Restaurant’s failure or rescheduling within 24 hours of the scheduled installation, BakeStreet may charge Restaurant a rescheduling fee. Restaurant acknowledges and agrees that the following services shall not be performed as part of installation services: (i) set up of internet services or connectivity systems, (ii) migration or transfer of data, (iii) warranty service or support, as the installation service is a one-time event, (iv) configuration of IP addresses, (v) virus removal or disaster recovery, (vi) configuration of third-party systems, (vii) network troubleshooting, or (viii) system or network security. BakeStreet does not assume any responsibility for damages due to or during the removal or modification of existing materials or surfaces during the installation. BakeStreet does not represent or warrant Hardware or software compatibility. BakeStreet SHALL NOT BE RESPONSIBLE FOR DAMAGE TO THE HARDWARE OR ANY OTHER INSTALLATION MATERIALS. BakeStreet IS NOT LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO ANY CAUSE BEYOND ITS CONTROL.
3. Hardware Fee. In exchange for the provision of the Hardware during the applicable Order Form Service Term, Restaurant will pay BakeStreet the non-refundable monthly fee set forth in the applicable Order Form (“Hardware Fee”). Restaurant acknowledges that should these Hardware Terms and/or any Order Form be terminated before the end of the Order Form Service Term of any applicable Order Form, Restaurant will not be refunded for any Hardware Fee already paid to BakeStreet pursuant to the applicable Order Form.
4. Return. Upon termination of the applicable Order Form or this Agreement for any reason, or as otherwise requested by BakeStreet, Restaurant shall promptly return the Hardware to BakeStreet, or such third party as designated by BakeStreet, in good working order (at Restaurant’s expense), by delivering the Hardware in an appropriate manner (packed properly and in accordance with BakeStreet’s instructions) and by such date as BakeStreet shall specify. BakeStreet may charge Restaurant, subject to these Hardware Terms, a restocking fee of up to $100.00 with respect to each item of returned Hardware (the “Restocking Fee”). If Restaurant fails to return any item of Hardware to BakeStreet in good working order by such date as requested by BakeStreet, then BakeStreet further reserves the right to charge Restaurant a fee of up to $349.00 with respect to each such item of Hardware (“Failure to Return Fee”). BakeStreet may, in its sole discretion, obtain payment from Restaurant’s credit card, bank account or other approved facility previously provided to BakeStreet for the amount of the Restocking Fee and/or the Failure to Return Fee, as applicable, or otherwise deduct such amount from the Merchant Deposit Account, Sales Proceeds or Grand Total, as applicable. Restaurant shall ensure that the Hardware will be returned to BakeStreet free and clear of all claims, liens, processes and any other encumbrances.
5. Damage or Loss of Hardware. Restaurant shall take reasonable care of any Hardware, and Restaurant is solely responsible for any loss of the Hardware or any damage to the Hardware beyond normal wear and tear. If BakeStreet determines in its reasonable discretion that Restaurant’s violation of this obligation caused damage to any item of Hardware, then BakeStreet may charge Restaurant a $100.00 refurbishment fee with respect to each such item of Hardware or such other amount up to $349.00 per item as BakeStreet deems appropriate given the condition of such Hardware (the “Damaged Hardware Fee”). Restaurant shall notify BakeStreet immediately if it learns that Hardware has been lost or stolen. If any item of Hardware is lost or stolen, then BakeStreet may charge Restaurant a fee of up to $349.00 with respect to each such item of Hardware (“Lost Hardware Fee”). BakeStreet may, in its sole discretion, obtain payment from Restaurant’s credit card, bank account or other approved facility previously provided to BakeStreet for the amount of the Damaged Hardware Fee and Lost Hardware Fee, as applicable, or otherwise deduct such amount from the Merchant Deposit Account, Sales Proceeds or Grand Total, as applicable. Restaurant is responsible for all costs of shipping in connection with any repair or replacement of Hardware. For the avoidance of doubt, BakeStreet may charge Restaurant multiple fees pursuant to these Hardware Terms and charging a fee under these Hardware Terms does not preclude charging additional fees under these Hardware Terms, or any other applicable section of this Agreement, as determined appropriate by BakeStreet.
6. Hardware Related Limitations of Liability. 

1. IN ADDITION TO THE DISCLAIMERS SET FORTH IN OTHER ANNEXES OF THIS AGREEMENT, BakeStreet EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, IN CONNECTION WITH THE HARDWARE AND RELATED INSTALLATION SERVICES, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
2. BakeStreet’S TOTAL LIABILITY TO RESTAURANT IN CONNECTION WITH THE HARDWARE AND RELATED INSTALLATION SERVICES WILL BE LIMITED TO AND WILL NOT EXCEED THE ACTUAL AMOUNTS PAID TO BakeStreet BY RESTAURANT FOR THE HARDWARE. IN NO EVENT WILL BakeStreet BE LIABLE TO RESTAURANT FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY HARDWARE OR RELATED INSTALLATION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BakeStreet HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS SECTION 5 (HARDWARE RELATED LIMITATIONS OF LIABILITY) IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

The following provisions 7 to 10 of these Hardware Terms only apply with respect to (i) Hardware acquired by Restaurant, other than for use in connection with the Online Order Platform, from BakeStreet prior to the Hardware Measurement Date or (ii) any Hardware designated as purchased (or other similar term) on the Order Form.

7. Shipment and Delivery. BakeStreet will provide Restaurant with the Hardware specified in the applicable Order Form prior to the Hardware Measurement Date (the “Designated Hardware”). BakeStreet will ship the Designated Hardware FOB, Restaurant’s point of shipment. Shipments will be made to the address identified by Restaurant in the applicable Order Form. Unless specified in an accepted purchase order, BakeStreet will select the mode of delivery and the carrier. Title and all risk of loss of or damage to the Designated Hardware will pass to Restaurant upon delivery by BakeStreet to the carrier. BakeStreet will use its commercially reasonable efforts to meet the delivery dates specified in the applicable Order Form, but BakeStreet reserves the right to cancel or delay shipment of the Designated Hardware if Restaurant fails to make any payment as provided in this Agreement, or otherwise fails to comply with the terms and conditions of this Agreement. BakeStreet will not be liable to Restaurant or to any other party for any delay in the delivery of the Designated Hardware. Restaurant’s use of the Designated Hardware is governed by the terms of this Agreement and any other instructions that BakeStreet may communicate to you or any restaurant customer from time to time. Restaurant is solely responsible for its use of the Designated Hardware not expressly contemplated in this Agreement.
8. Limited Hardware Warranty for Designated Hardware. 

1. BakeStreet warrants that for six (6) months after the installation date (“Warranty Period”), the Designated Hardware will perform in accordance with the specifications provided together with the Designated Hardware. As Restaurant’s sole and exclusive remedy and BakeStreet’s entire liability for any breach of this limited warranty, BakeStreet will provide Restaurant with the support services for Designated Hardware described in these Hardware Terms, or in the applicable Order Form, as applicable. If BakeStreet determines, in its sole discretion, that the Designated Hardware initially provided must be replaced during the Warranty Period, BakeStreet will communicate to Restaurant the procedure to be followed for the return of the original Designated Hardware. Unless otherwise provided by BakeStreet, Restaurant shall return the malfunctioning Designated Hardware to BakeStreet within thirty (30) days of Restaurant’s receipt of the replacement Designated Hardware. If Restaurant does not return the malfunctioning Designated Hardware in accordance with these requirements, Restaurant agrees that BakeStreet may either charge or invoice Restaurant for the replacement value of the applicable Designated Hardware, and Restaurant agrees to pay for such costs within thirty (30) days of the date of BakeStreet’s invoice to Restaurant for these costs. Only Designated Hardware returned in accordance with such procedure will be accepted by BakeStreet. Except for damages to Designated Hardware as described in these Hardware Terms that are not caused by Restaurant (including its personnel or agents), the risk of damage or loss of Designated Hardware remains solely with Restaurant until BakeStreet receives Restaurant’s return. Designated Hardware should be securely packaged during the return process, such as in the original packaging Restaurant received. BakeStreet is not responsible for any damage to Designated Hardware during the return shipping process. Replacement Hardware may consist of both new and used components and is warranted for the unexpired portion of the original Warranty Period. All replacement Hardware becomes the property of Restaurant, unless BakeStreet expressly specifies that such replacement Hardware is provided on a temporary basis while the initial Designated Hardware is being repaired. BakeStreet will not be responsible for Restaurant’s or any third party’s software, firmware, information or data contained in or stored on any Designated Hardware returned to BakeStreet, whether under warranty or not.
2. Notwithstanding the foregoing, Restaurant shall take reasonable care of any and all Designated Hardware (including replacement Hardware), and Restaurant is solely responsible for any damage to the Designated Hardware (including replacement Hardware) beyond normal wear and tear. If BakeStreet determines in its reasonable discretion that Restaurant’s violation of this obligation caused damage to Designated Hardware and/or replacement Hardware, Restaurant agrees that BakeStreet may either charge or invoice Restaurant for all costs associated with the repair or replacement of the damaged Hardware, and Restaurant agrees to pay for such costs within thirty (30) days of the date of BakeStreet’s invoice to Restaurant for these costs.
3. Restaurant shall notify BakeStreet immediately if it learns that Designated Hardware has been lost or stolen. If Designated Hardware has been lost or stolen, Restaurant agrees that BakeStreet may charge or invoice Restaurant for all costs associated with the replacement of the lost Designated Hardware, and Restaurant agrees to pay for such costs within thirty (30) days of the date of BakeStreet’s invoice to Restaurant for these costs.
4. Early Termination and Return of Designated Hardware.

1. Account termination requests within thirty (30) days of installation of the Designated Hardware are eligible for a full refund of the fees paid by Restaurant for the Designated Hardware, provided all Designated Hardware is returned within thirty (30) days of account termination, in working resalable condition, as reasonably determined by BakeStreet. Restaurant must contact BakeStreet at support@bakestreet.co (or such other address provided by BakeStreet to Restaurant from time to time) to receive a return label for such return. Failure to use the supplied return label may lead to loss of the Designated Hardware, for which Restaurant will be solely responsible.
2. For any account terminations that occur within twelve (12) months of installation of the Designated Hardware, Restaurant agrees to pay the original invoiced MSRP hardware balance for Designated Hardware in full within thirty (30) days of termination. For any account terminations that occur more than twelve (12) months after installation of the Designated Hardware, Restaurant must pay any balance on discounted hardware package within thirty (30) days of account termination.
3. As is the case for damaged Designated Hardware, the risk of damage or loss of such Designated Hardware remains solely with Restaurant until BakeStreet receives Restaurant’s return. Designated Hardware should be securely packaged during the return process, such as in the original packaging Restaurant received. BakeStreet is not responsible for any damage to Designated Hardware during the return shipping process.
4. Designated Hardware Related Limitations of Liability.

1. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 9 (DESIGNATED HARDWARE RELATED LIMITATIONS OF LIABILITY) ARE IN LIEU OF, AND BakeStreet EXPRESSLY DISCLAIMS, IN ADDITION TO THE DISCLAIMERS IN THE ANNEXES OF THIS AGREEMENT, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, IN CONNECTION WITH THE DESIGNATED HARDWARE, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
2. BAKESTREET’S TOTAL LIABILITY TO RESTAURANT IN CONNECTION WITH THE DESIGNATED HARDWARE WILL BE LIMITED TO AND WILL NOT EXCEED THE ACTUAL AMOUNTS PAID TO BakeStreet BY RESTAURANT FOR THE DESIGNATED HARDWARE. IN NO EVENT WILL BakeStreet BE LIABLE TO RESTAURANT FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY DESIGNATED HARDWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BakeStreet HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS SECTION 9 (DESIGNATED HARDWARE RELATED LIMITATIONS OF LIABILITY) IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.