SKIPPY TERMS OF SERVICE
Last Updated: March 14, 2022
BEFORE YOU ACCESS OR USE THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS, PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS OR BY ENTERING INTO ANY AGREEMENT WITH CARBON ORIGINS THAT REFERENCES THESE TERMS, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS AGREE TO BE BOUND BY THESE TERMS. CARBON ORIGINS AND MERCHANT ARE EACH A “PARTY” AND COLLECTIVELY THE “PARTIES.”
a. “Agreement” means these Terms as incorporated into the applicable Sign-Up Sheet.
b. “Carbon Origins” means Carbon Origins Inc., a Delaware corporation.
c. “Carbon Origins Data” means any information that Carbon Origins, or any of its affiliates, provides or makes accessible to Merchant through the Skippy Platform, including without limitation Personal Information.
d. “Commission” means the commission fees owed by Merchant to Carbon Origins in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Skippy Platform, which is charged as a percentage of revenues transacted on the Skippy Platform calculated on a pre-tax basis.
e. “Customer” means the customer who places an order for Merchant Products through the Skippy Platform.
f. “Customer Orders” means orders for Merchant Products through the Skippy Platform from Customers for delivery by Skippy.
g. “Merchant” means the restaurant or other entity that has agreed to participate in the Skippy Services by entering into a Sign-Up Sheet.
h. “Merchant Portal” is an online platform, through which Merchant may and regularly should review and confirm its transactions, fees and charges, and account on the Skippy Platform.
i. “Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.
j. “Merchant Stores” means the Merchant store locations that participate in the Skippy Services and includes: (i) Merchant Stores owned and operated by Merchant or its affiliates, and/or (ii) Merchant Stores owned and operated by franchisees of Merchant or its affiliates.
k. “Order Equipment” means and includes any equipment reasonably required by Carbon Origins for Merchant to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.
l. “Personal Information” means any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
m. “Sign-Up Sheet” means a Carbon Origins Sign-Up Sheet that is signed by Merchant and sets forth the fees to be paid by Merchant.
n. “Skippy” means semi-autonomous delivery robot.
o. “Skippy API” means the application programming interface (API) that allows the Merchant to exchange information with Carbon Origins.
p. “Skippy Platform” means Carbon Origins’ online communication platform where Customers can view and search for the menus of Merchant, and other merchants, and place Customer Orders, and any additional digital platform offerings added by Carbon Origins.
q. “Skippy Services” means the provision of the Skippy Platform and all services offered through the Skippy Platform.
r. “Skipster” means independent third-party robot operator.
s. “Terms” means the provisions herein.
2. Structure of Agreement. Each Sign-Up Sheet shall be deemed to incorporate by reference all of the terms and conditions of these Terms and shall constitute a separate and binding contract between Carbon Origins and Merchant. Merchant shall cause all of its affiliates, franchisees, participating locations and Merchant Stores, and all Representatives of the foregoing, (collectively, “Merchant Group”) to comply with all representations, warranties, covenants and obligations of Merchant under this Agreement. Merchant is responsible for any breach of this Agreement by, or caused by, any member of Merchant Group. Merchant and Merchant Group are jointly and severally liable under this Agreement. In the event there are any conflicts or any inconsistencies between the terms and conditions of any Sign-Up Sheet and the terms and conditions of these Terms, the terms and conditions of the Sign-Up Sheet shall govern for purposes of this Agreement.
3. Skippy Platform Core Responsibilities.
a. Carbon Origins Core Responsibilities. During the Platform Term, Carbon Origins will use reasonable efforts to:
i. Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the Skippy Platform;
ii. Forward each Customer Order accepted by Carbon Origins to the relevant Merchant Store;
iii. Forward each Customer Order accepted by Carbon Origins to a Skipster, so that the Skipster can guide a Skippy (via virtual reality technology) to pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer; and
iv. Pay the Merchant in accordance with the Sign-Up Sheet, less the applicable Commission, marketing fees, subscription fees, activation fees, and any other fees (in each case, as may be adjusted by Carbon Origins as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature).
Notwithstanding anything to the contrary herein or elsewhere, Carbon Origins has no obligations to remit payment to Merchant unless and until Carbon Origins as received payment from Customer for the applicable Customer Order.
b. Merchant Core Responsibilities. Merchant will at all times:
i. Provide Carbon Origins with the Merchant’s in-store or take-out menu, including the price of each item on such menu;
ii. Monitor Merchant’s menu and store information on the Skippy Platform, make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or notify Carbon Origins of any errors or changes;
iii. Accept Customer Orders placed on Skippy from Merchant’s menu;
iv. Prepare the Merchant Products for each Customer Order for pickup by a Skippy;
v. Notify Merchant store staff members of the relationship with Skippy; and
vi. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and communicate to Carbon Origins any inaccuracies.
c. Skippy Platform. Subject to the terms and conditions of this Agreement, Carbon Origins hereby grants Merchant a limited, nonexclusive, nonsublicensable, nontransferable, revocable right to access and use the Skippy Platform and Merchant Portal during the Platform Term solely for Merchant’s own business operations. Merchant is responsible for access to the Skippy Platform, Merchant Portal, Merchant Content and Skippy API by other persons as a result of Merchant’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the Skippy Platform, Merchant Portal or Skippy API. Merchant will: (i) prevent unauthorized access to or use of the Skippy Platform, Merchant Portal and Skippy API, and notify Carbon Origins immediately of any such unauthorized access or use; and (ii) promptly deactivate the Skippy Platform and Merchant Portal user account of any individual no longer tasked with the use of the Skippy Platform and Merchant Portal. Merchant will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the Skippy Platform and Merchant Portal available to its users and for the collection, storage and processing of information and/or sensitive information by Carbon Origins according to Merchant’s instructions.
d. Skippy API. During the Platform Term, Carbon Origins grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, license to access the Skippy API solely to transmit information to facilitate the Skippy Services as contemplated herein.
e. Use Restrictions. Merchant will not, directly or indirectly through any third party: (a) use the Skippy Platform, Merchant Portal or Skippy API for any purpose other than its own business purposes; (b) use or access the Skippy Platform, Merchant Portal or Skippy API in violation of any applicable law, rule or regulation, including any data privacy law or regulation; (c) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display or otherwise commercially exploit or make available (collectively, “Distribute”) the Skippy Platform, Merchant Portal or Skippy API; (d) Distribute libelous, defamatory, pornographic, obscene, invasive of privacy or publicity rights, abusing, inciting, harassing, threatening, unlawful, tortious, misleading, false or fraudulent Merchant Content on, to or through the Skippy Platform, Merchant Portal or Skippy API; (e) Distribute Merchant Content on, to or through the Skippy Platform, Merchant Portal or Skippy API that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (f) Distribute malicious or harmful computer code on, to or through the Skippy Platform, Merchant Portal or Skippy API; (g) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Skippy Platform, Merchant Portal or Skippy API; (h) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Skippy Platform, Merchant Portal or Skippy API; or (i) send or transmit an virus or other harmful computer code via the Skippy Platform, Merchant Portal or Skippy API.
4. Refunds and Re-Orders. In the event that Carbon Origins, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer Order, Merchant will prepare the food to the same specifications as the original Customer Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due solely and exclusively to the fault of the Skippy, Skipster or Carbon Origins.
5. Order Equipment. Merchant will install any and all Order Equipment at Merchant’s own cost and expense. If any Order Equipment is provided by Carbon Origins, Merchant will pay Carbon Origins an Order Equipment fee, as set forth in the Sign-Up Sheet. Any Order Equipment provided by Carbon Origins will remain Carbon Origins’ sole property and may be used by Merchant solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Carbon Origins (excluding ordinary wear and tear), which will be reimbursed by Merchant (at the replacement cost thereof). Carbon Origins may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from payments.
6. Payment, Fees, Title and Taxes. Carbon Origins will pay for Customer Orders fulfilled by Merchant on a regular basis as set forth in the Sign-Up Sheet. Carbon Origins shall be entitled to deduct from such payments Commission, marketing fees (for identifiable orders), activation fees, subscription fees, equipment fees, and any other fees which Carbon Origins may notify Merchant regarding with at least 7 days’ advance written notice. Merchant agrees Carbon Origins may charge the Customer fees, including but not limited to a delivery fee, service fee, surcharge fee, and small order fee where applicable in Carbon Origins’ sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.
7. Payment Processing. Payment processing services for Merchant on the Skippy Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Carbon Origins enabling payment processing services through Stripe, Merchant agrees to provide Carbon Origins accurate and complete information about Merchant’s representative and its business, and Merchant authorizes Carbon Origins to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Upon account creation, Merchant shall be solely responsible for the accuracy and integrity of the information associated with their Stripe account(s). Carbon Origins will not be responsible for making additional payments to Merchant due to missing or inaccurate information. To the best of Carbon Origins’ knowledge, Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.
8. Merchant Content and Trademark; Photographs of Menu Items; Intellectual Property.
a. Merchant Content. Merchant grants to Carbon Origins a perpetual, irrevocable, royalty-free, non-exclusive, sublicensable right and license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Merchant Content for all purposes relating to the provision of Carbon Origins’ services, including, where applicable and without limitation, listing Merchant as a merchant on the Skippy Platform, creating Aggregated Data, referencing Merchant as a Skippy partner, promoting Carbon Origins’ products and services, and sharing Merchant Content with third parties, including third party services which enable Customers to access the Skippy Platform (including its web pages) for Customer Orders. As used herein, “Merchant Content” means any and all menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to Carbon Origins. Merchant Content also includes any and all information that Merchant or any member of Merchant Group provides or makes available via the Skippy API.
b. Photos. If photographs of Merchant’s menu items are not available or if they do not meet Carbon Origins’ requirements, as reasonably determined by Carbon Origins, then Merchant consents to Carbon Origins: (i) engaging a professional photographer to take photographs of Merchant’s menu items or other products, (ii) enhancing the quality of Merchant’s existing photographs, (iii) using stock photographs of the menu item or other products, or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the Skippy Platform as representations of Merchant’s menu items.
c. Intellectual Property. Carbon Origins or its licensors shall own all intellectual property rights in any copy, translation, modification or adaptation of the Skippy API, Skippy Platform, Merchant Portal or any other deliverable, technology, product, good, services, or work processes, or any development based thereon, which may be created by or for Carbon Origins, or by or for Merchant. Merchant agrees not to take any action that interferes with said intellectual property rights of Carbon Origins. No right or license is granted to Merchant hereunder by implication, estoppel, or otherwise to any know-how, patent or other intellectual property right owned or controlled by Carbon Origins or its affiliates, except by an express right or license granted hereunder.
d. Aggregated Data and Usage Data. “Aggregated Data” means data that is aggregated with data of other merchants or customers of Carbon Origins. “Usage Data” means any and all data that is generated by or derived from use of the Skippy Platform or Merchant Portal by Merchant, any member of Merchant Group or any Customer. Merchant hereby irrevocably assigns to Carbon Origins all of its right, title and interest, including, without limitation, intellectual property rights, in, to or covering Aggregated Data and/or Usage Data. In any event, Merchant grants to Carbon Origins a perpetual, irrevocable, royalty-free, non-exclusive, sublicensable right and license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Aggregated Data and/or Usage Data for any purposes related to the business of Carbon Origins or any of its affiliates or business partners.
9. Confidential Information.
a. Definition. The term “Confidential Information” means any nonpublic or proprietary business, technical or financial information or materials of a Party (“Disclosing Party”) provided to the other Party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, and notwithstanding anything to the contrary herein or elsewhere, Carbon Origins Data is the Confidential Information of Carbon Origins. Carbon Origins may disclose and Merchant may receive Confidential Information directly or indirectly through its respective affiliates or Representatives and all such disclosures and receipts shall be deemed disclosures by Carbon Origins, and receipts by Merchant, of Carbon Origins’ Confidential Information.
b. Exceptions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
c. Obligations. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care. Receiving Party will ensure that all of its Representatives comply with such Receiving Party’s obligations under this Section 9. Receiving Party will be liable for any breach of this Section 9 by, or caused by, its Representatives.
d. Required Disclosure. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
10. Data Privacy and Security. Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Carbon Origins Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Carbon Origins Data secure from unauthorized access and maintain the accuracy and integrity of Carbon Origins Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Carbon Origins Data, Merchant will immediately notify Carbon Origins, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Carbon Origins. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Carbon Origins and will be responsible for damages resulting from Merchant’s failure to comply. Merchant may not and shall not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Skippy Platform; damage, destroy or impede the services provided through the Skippy Platform; transmit injurious code; or bypass or breach any security protection on the Skippy Platform.
11. Term; Effect of Termination.
a. Term; Renewal. This Agreement shall commence on the effective date of the Sign-Up Sheet and remain in full force and effect until terminated in accordance with the terms set forth herein (“Platform Term”). Merchant may terminate this Agreement, for any reason or no reason, upon delivery of not less than 30 days’ prior written notice to Carbon Origins. Carbon Origins may terminate this Agreement, for any reason or no reason, upon delivery of notice to Merchant.
b. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Merchant to access and use the Skippy API, Skippy Platform and Skippy Services shall terminate immediately; (ii) all obligations of Carbon Origins’ under this Agreement shall terminate immediately (except for those expressly set forth in Section 11(c)); and (iii) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party. Merchant acknowledges and agrees that Carbon Origins has no obligation to retain Merchant Content after termination or expiration of this Agreement, and may delete such Merchant Content thirty (30) days after termination or expiration of this Agreement.
c. Survival. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1, 2, 3(e), 4, 5, 8, 9, 11(b), 11(c), 12, 13, 14, 15, 16, 17 and 18, and any other provisions which by their nature should survive such termination or expiration.
12. Modifications. Carbon Origins reserves the right, at its sole discretion, to change, suspend, or discontinue the Skippy Platform (including without limitation, the availability of any feature or content) at any time. Carbon Origins may, at its sole discretion, remove Merchant Products or Merchant Stores from the Skippy Platform if Carbon Origins determines that such Merchant Product or Merchant Store could subject Carbon Origins to undue regulatory risk, health and safety risk, or other liability. Carbon Origins may amend this Agreement from time to time by posting an amended version of these Terms on Carbon Origins’ website at the Website or on the Skippy Platform or sending Merchant notice thereof. Such amendment will become effective 30 days after such notice, unless Merchant first terminates this Agreement pursuant to Section 11. Merchant’s continued use of the Skippy Services after such 30-day notice period will confirm Merchant’s consent to such amendment. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each Party.
13. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
a. Mutual. Each Party represents and warrants to the other Party that: (i) such Party is an entity duly formed, organized and existing in good standing in such Party’s state of formation; (ii) such Party has full power and all requisite legal and entity authority to enter into this Agreement; and (iii) such Party’s execution, delivery, and performance of this shall not constitute (a) a violation of any judgment, order, or decree; (b) a material default under any material contract by which such Party or any of its material assets are bound; or (c) an event that would, with notice or lapse of time, or both, constitute such a default.
b. Merchant. Merchant further represents, warrants and agrees that: (i) it does and at all times will comply with all applicable laws, rules, standards and regulations; (ii) it has informed, and at all times throughout the Platform Term it will inform, Carbon Origins of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Carbon Origins of any such warnings, charges, opt-ins, and instructions that become required in the future; (iii) it will disclose common allergens in any Merchant’s menu items listed on the Skippy Platform; (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Skippy Platform; (vii) it will comply with the guidelines Carbon Origins publishes that govern any content Merchant posts on the Skippy Platform or Merchant Portal; (viii) it has, and at all times will maintain, all right, title and interest in and to Merchant Content; and (ix) neither Merchant Content, nor any use or disclosure thereof by Carbon Origins or any of its affiliates, violate or infringe upon any right of any party or violate any law, rule or regulation.
c. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CARBON ORIGINS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Skippy Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Carbon Origins shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Skippy Platform nor for any guarantee of results with respect to the Skippy services or Skippy Platform. Both Parties acknowledge that neither Party has any expectation or has received any assurances for future business or that any investment by a Party will be recovered or recouped or that such Party will obtain any anticipated amount of profits by virtue of this Agreement.
14. Indemnification. Merchant (the “Indemnifying Party”) will defend, indemnify, and hold harmless Carbon Origins, its subsidiaries and affiliates, and its and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, actions, causes of actions, demands, suits, litigation, investigations, subpoenas, proceedings, damages, losses, costs, liabilities, judgements, awards, fines, fees, penalties, interest and expenses of any nature whatsoever (including, but not limited to, reasonable attorney’s fees) that arise from, relate to, are based upon or allege: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel or Merchant Products; (ii) any actual or alleged breach of this Agreement by Indemnifying Party; (iii) any claim that the use or disclosure of Merchant Content infringes, misappropriates or violates any right or property of any party or violates any law, rule or regulation; (iii) Indemnifying Party’s actual or alleged failure to distribute tips as required by applicable law; (iv) Merchant Products; (v) any receipt of any text message or SMS message from any member of Merchant Group; or (vi) the access or use by or on behalf of Merchant or any member of Merchant Group of any goods, services, products or technology provided or made available by a third party, including, without limitation, third-party payment processing services. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.
15. Limitation of Liability. IN NO EVENT SHALL CARBON ORIGINS OR ITS AFFILIATES BE LIABLE TO MERCHANT, ITS AFFILIATES OR ANY THIRD PARTY FOR LOST PROFITS, LOSS OF DATA, SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. THE TOTAL CUMULATIVE LIABILITY OF CARBON ORIGINS AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES ACTUALLY PAID BY MERCHANT TO CARBON ORIGINS UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE FIRST CLAIM BY MERCHANT UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 15 SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF MERCHANT UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
17. Class Action Waiver. HEREBY AGREES THAT: (I) EACH DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS IS PERSONAL TO MERCHANT, AND SHALL ONLY BE CONDUCTED AS AN INDIVIDUAL COURT PROCEEDING AND NOT AS A CLASS ACTION OR OTHER FORM OF REPRESENTATIVE ACTION; (II) IT HEREBY EXPRESSLY WAIVES ANY RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN CONNECTION WITH ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS; AND (III) THE COURT MAY ONLY CONDUCT AN INDIVIDUAL COURT ACTION, MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING RELATING TO ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SKIPPY API, SKIPPY PLATFORM, SKIPPY SERVICES, MERCHANT PORTAL, SKIPPY, OR ANY OTHER GOODS, PRODUCTS, SERVICES OR TECHNOLOGY PROVIDED OR MADE AVAILABLE BY CARBON ORIGINS. MERCHANT AGREES THAT IT MAY NOT AND WILL NOT BRING ANY CLAIM AGAINST CARBON ORIGINS OR ANY OF ITS AFFILIATES AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
18. General Provisions. As set forth on the Sign-Up Sheet between Merchant and Carbon Origins, the Sign-Up Sheet and these Terms constitute an integrated Agreement between the Parties, which supersedes all prior agreements and communications of the Parties, oral or written, with respect to the subject matter hereof. This Agreement is governed by and interpreted in accordance with the laws of the State of Minnesota without regard to the conflicts of laws principles thereof. Any dispute, controversy or claim arising out of, or relating to, this Agreement, or the existence, validity, breach, or termination hereof, whether during or after its term, shall be submitted for resolution in the federal or state courts located in Minneapolis, Minnesota; and the Parties hereby irrevocably consent to the jurisdiction of such courts. Notwithstanding the foregoing, Carbon Origins may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such controversy or claim. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY AND ALL DISPUTES, CONTROVERSIES OR CLAIMS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, OR THE EXISTENCE, VALIDITY, BREACH, OR TERMINATION HEREOF, WHETHER DURING OR AFTER ITS TERM. Merchant may not assign this Agreement in whole or in part without Carbon Origins’ prior written consent. Carbon Origins may freely assign, transfer, delegate or subcontract this Agreement and any rights or obligations hereunder. This Agreement is binding upon, and inures to the benefit of, the Parties and their successors and permitted assigns, but shall not confer any rights or remedies upon any third party (except for indemnified parties expressly identified herein). The Parties are independent contractors. Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Carbon Origins and Merchant (or Merchant’s employees, representatives or locations), Carbon Origins and Skipster, or Carbon Origins and Customers. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here. Merchant covenants and agrees that, subsequent to the execution and delivery of the Sign-Up Sheet, and without any additional consideration, Merchant shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement. During the Platform Term and for a period of one (1) year thereafter, Merchant agrees not to hire or retain, either as an employee or as or through a consultant, any employee of Carbon Origins without the prior written consent of Carbon Origins. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. Except as specifically provided herein, the Parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. All references to and mentions of the words “including”, “include” or “includes” shall be deemed to be followed by “without limitation.” “Or” is not exclusive.
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