OrderNext Master Supply, License, and Services Agreement

This Supply, License, and Services Agreement (this “Agreement”) is entered into as of the Effective Date of the Order Form (the “Effective Date”) by and between VenueNext, Inc., a Delaware corporation with offices at 2202 North Irving Street Allentown, PA 18109 (“VenueNext”) and Customer.  Each of VenueNext and Customer are referred to herein sometimes as a “Party” and together as the “Parties.”

WHEREAS, VenueNext has developed a technology platform (the “OrderNext Platform”) that enables visitors of a venue to connect and interact with certain offerings available at the venue through their mobile devices;

WHEREAS, Customer desires to deploy certain functionality of the OrderNext Platform in its venue; and

WHEREAS, VenueNext desires Customer to deploy such functionality of the OrderNext Platform in Customer’s venue and is willing to do so and provide additional services pursuant to the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

1. DEFINITIONS

• (a) “Authorized User” means an employee of Customer that has (i) been assigned a unique username-password combination to access and use the Dashboard Services, and (ii) registered online to access and use the Dashboard Services; provided, however, the Parties will mutually decide on the number of such employees, which in no case will be greater than five (5). 
  
• (b) “Customer Content” means the Customer Trademarks and all images, descriptions, text, videos, and other content and information that Customer submits pursuant to Section 3.2(a) or otherwise delivers to VenueNext. 
  
• (c) “Customer Web Application” means the VenueNext web-based application that is made available pursuant to Section 3.2.
  
• (d) “Customer Trademarks” means all Customer trademarks, logos, tradenames, service marks, and other branding materials that Customer makes available to VenueNext for presentation through the Customer Web Application.
  
• (e) “Dashboard Services” means those features of the Hosted Services identified in Schedule A that VenueNext makes available for Customer to access via the Dashboard Website.
  
• (f) “Dashboard Website” means a website located at a URL to be provided to Customer.  VenueNext may change the Dashboard Website from time to time upon no less than ten (10) days’ notice to Customer.
  
• (g) “Feedback” means comments, suggestions, improvements, and any other feedback from Customer and their personnel regarding the OrderNext Platform. 
  
• (h) “Hosted Services” means VenueNext’s online service that provides the functionality described in Schedule A.
  
• (i) “Intellectual Property Rights” means the rights associated with the following: (i) all United States and foreign patents and applications therefor; (ii) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world; (iii) trademarks, service marks, trade dress rights and similar designation of origin and rights therein; (iv) trade secrets, know-how, and Confidential Information; and (v) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.
  
• (j) “Non-VN Technology and Services” means, excluding the OrderNext Platform, any and all technology and services provided by Customer or any third-party for the Venues that interface, integrate with, or otherwise interact with the OrderNext Platform, including but not limited to those identified in Customer Obligations in Schedule A.
  
• (k) “Order Form” means the form which links/is attached to this Agreement that identifies the relevant Venue(s) and provides pricing and other relevant commercial terms under this Agreement.
  
• (l) “Patrons” means the end-customers who receive access to the Customer Web Application to interact with certain offerings and services provided in the Venues.
  
• (m) “Project Plan” has the meaning set forth in Section 2.2.
  
• (n) “Term” has the meaning set forth in Section 8.1.
  
• (o) “Updates” means any software updates or upgrades to the VenueNext Software that VenueNext provides with Maintenance and Tech Support (as defined in Section 5.1).
  
• (p) “VenueNext Software” means all software provided hereunder by VenueNext, including the Customer Web Application and all Updates thereto.
  
• (q) “Venue” means the venue set forth in Order Form.
  
• (r) “OrderNext Platform” means the proprietary integrated solution comprising the Hosted Services and Customer Web Application that provides the features and functionality set forth in the Order Form.
  

2. IMPLEMENTATION & TRAINING

• 2.1 Installation & Implementation Services.  VenueNext will provide installation and implementation services for the OrderNext Platform Features and Functionality set forth in the Order Form.
  
• 2.2 Development of Project Plan.  A project plan will be mutually developed and agreed to by VenueNext and Customer. (the “Project Plan”).
  
• 2.3 Training Services.  Expect as otherwise provided in this Agreement, VenueNext agrees to train Customer as needed for the OrderNext Platform Features and Functionality set for in the Order Form. The content and timing of such training shall be mutually agreed upon by the Parties.
  

3. ORDERNEXT PLATFORM

• 3.1 Hosted Service.
  
• (a) Subject to the terms and conditions of this Agreement and Customer’s compliance therewith, VenueNext will provide the Hosted Services to Customer during the Term. 
  
• (b) Customer may access and use the Dashboard Services solely for its internal business purposes to access data generated from Patrons’ interaction with the Hosted Services.  Customer’s access and use of the Hosted Services is expressly limited to the number of Authorized Users for which Customer has paid fees in accordance with the Order Form.  Customer shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications and passwords for accessing the Dashboard Services.
  
• 3.2 Web Application.
  
• (a) Customer will use Canopy (as defined in the Order Form) to configure the Customer Web Application to provide and configure the Customer Content and customer branding.
  
• (b) After Customer has configured the Customer Web Application pursuant to Section 3.2(a), VenueNext will make the Customer Web Application available for Patrons to use via a deep link, short URL, or other web-accessible hyperlink.
  

4. CUSTOMER OBLIGATIONS & RESTRICTIONS

• 4.1 Customer Deliverables.  Customer understands that VenueNext’s obligations hereunder are dependent in part on Customer’s performance in a timely manner of the obligations and dependencies assigned to Customer in Schedule A (the “Customer Deliverables”).  Accordingly, Customer will be responsible for and assumes the risk of any problems arising from the Customer Deliverables, and the delivery and installation schedule may be adjusted to account for any delays in completing or otherwise providing the Customer Deliverables.
  
• 4.2 Telecommunication, Internet, Customer Technology, and Third-Party Services.  Excluding the software and hardware set forth in the definition of the OrderNext Platform, Customer is responsible for obtaining, maintaining, and supporting all internet access, connectivity to the OrderNext Platform (Wi-Fi, Ethernet, and/or DAS), the Non-VN Technology and Services, and any other computer hardware, software, and other equipment and technology needed for Customer and Patrons to access the OrderNext Platform (collectively, the “Customer Technology”).  Customer acknowledges and agrees that Patrons’ and Customer’s use of the OrderNext Platform is dependent upon sufficient and adequate access to telecommunications, connectivity to the OrderNext Platform (Wi-Fi, Ethernet, and/or DAS), Internet, and Customer Technology.  Customer shall be solely responsible for acquiring and maintaining all telecommunications, Customer Technology, Internet, including, without limitation, any and all costs, fees, expenses and taxes of any kind related to the foregoing.
  
• 4.3 Restrictions.  Customer will not, nor will Customer allow anyone else to, directly or indirectly: (i) sell, rent, lease, sublicense, distribute or otherwise transfer the OrderNext Platform or any portion thereof; (ii) except as expressly permitted in this Agreement, use, copy, display, or perform the OrderNext Platform or any portion thereof; (iii) modify, translate or create derivative works based on the OrderNext Platform or any portion thereof; (iv) except as expressly permitted in this Agreement, make the OrderNext Platform or any portion thereof available in any manner to any third party for use in the third party’s business operations or to provide hosting, service bureau, time-sharing or similar services to a third party; (v) disable or circumvent any access control or related device, process or procedure established with respect to the OrderNext Platform; (vi) reverse engineer or otherwise attempt to derive source code or other trade secrets from the OrderNext Platform or any portion or component thereof; (vii) use the OrderNext Platform for any purpose that is unlawful or that violates or is inconsistent with applicable laws or regulations; or (viii) use or operate the OrderNext Platform for any purpose other than as explicitly authorized herein.
  

5. PERFORMANCE, SUPPORT, & MAINTENANCE

• 5.1 Maintenance & Tech Support.   During the Term, VenueNext will provide the maintenance and support services for the OrderNext Platform in accordance with Schedule B (the “Maintenance and Tech Support”).  Customer understands that VenueNext’s provision of Maintenance & Tech Support is dependent in part on the Customer’s performance in a timely manner of the obligations and dependencies in Schedule B assigned to any Customer (the “Customer Maintenance Assistance”). VenueNext’s Maintenance & Tech Support obligations will be subject to performance of the Customer Maintenance Assistance in a manner that allows VenueNext to provide its Maintenance & Tech Support obligations.
  
• 5.2 Software Upgrades.  During the Term, at no additional cost to Customer, VenueNext will provide upgrades to the specific features and functionality of the OrderNext Platform that Customer receives under this Agreement and makes generally available to its other customers.
  

6. CONTENT & DATA

• 6.1 Customer Content.  Customer hereby grants to VenueNext a limited, non-exclusive, worldwide, license during the Term to use, copy, publicly display, publicly perform, and distribute the Customer Content and any portion thereof for the purpose of providing the OrderNext Platform hereunder.
  
• 6.2 Data.
  (a) Customer shall own all data generated based on Patron interaction with the Customer Web Application for events at the Venue (the “End User Data”).  Throughout the Term, VenueNext will have the right, and Customer hereby grants VenueNext a worldwide, irrevocable, royalty-free license, to use and share the End User Data to operate the OrderNext Platform, interact with and otherwise engage End Users in the process of providing the OrderNext Platform to Customer, and share usage, performance, and behavior metrics to Customer to better serve the Patrons.
  
• (b) VenueNext will retain End User Data for a period of five (5) days from collection of the applicable End User Data, and will deliver the End User Data to Customer that is set forth in Schedule A in accordance with the schedule set forth in Schedule A.  In the event of any loss or corruption of End User Data, VenueNext shall use its commercially reasonable efforts to restore the lost or corrupted End User Data from the latest backup of such End User Data maintained by VenueNext.  VenueNext shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of End User Data caused by any third party.  VENUENEXT’S EFFORTS TO RESTORE LOST OR CORRUPTED END USER DATA PURSUANT TO THIS SECTION 6.2(b) SHALL CONSTITUTE VENUENEXT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF END USER DATA.
  
• (c) Customer will deliver to VenueNext a privacy policy that: (i) complies with all applicable laws and regulations; and (ii) provides notice to Patrons and other end-users as to the data it will collect, and how it will use and share such data (the “Privacy Policy”).  VenueNext will post the Privacy Policy on the Customer Web Application, and each Party agrees that it will use and disclose End User Data strictly in accordance with the Privacy Policy.
  

7. PAYMENT

• 7.1 Fees. Customer will pay to VenueNext the Annual License Fees and Set Up Fees, as defined in the Order Form.
  
• 7.2 Additional Fees. Nothing in this Agreement obligates VenueNext to provide any other services, support or development to Customer that is outside the scope of this Agreement.  VenueNext shall charge additional fees for service, support and/or development provided to Customer that is outside the scope of this Agreement including, but not limited to, software customizations, integrations with third parties, mobile application development, and additional custom reporting.
  
• 7.3 Payment Terms
  (a) Invoice Schedule. VenueNext will send an invoice to the Customer pursuant to the Order Form.
  
• (b) Audit Rights. For the purposes of confirming the Sponsorship Activation Fee, if applicable, Customer shall permit VenueNext at its sole cost to inspect Customer’s written records pertaining to this Agreement; provided, however, the scope of any such inspection will be limited to records pertaining to Customer’s sponsorship/partnership agreements, where such agreements reference Customer’s Mobile Application in any way.  Any inspection shall be held no more than one (1) time per calendar year during normal business hours and following reasonable prior written notice (no less than ten (10) business days’ advance written notice), and shall not unduly interrupt or disrupt Customer’s normal business operations.  The information collected during the audit shall be considered Customer’s confidential information. If VenueNext elects to have its authorized representative perform such inspection, the authorized representative, excluding any agency with regulatory authority, shall be required to enter into a separate confidentiality agreement in form and substance reasonably satisfactory to Customer and the party performing such onsite inspection.
  
• (c) Payment. Customer will pay the amount of each invoice within thirty (30) days of the invoice date.  Customer will pay VenueNext by direct deposit payment using wire instructions provided by VenueNext.
  
• (d) Late Payments. Without prejudice to any other remedies available to VenueNext in law or equity: (a) late payments by Customer will be subject to the lesser of one percent (1%) per month, or the highest rate allowed by law, from the original payment due date.
  
• (e) Taxes. All fees payable under this Agreement are net amounts and are payable in full by Customer, and Customer is not entitled to deduct the amount of any taxes, including duties, assessments, value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, or amounts levied in lieu thereof, based on services performed or payments made hereunder, from any payments due to VenueNext under this Agreement without VenueNext’s prior written consent.  Customer is responsible for any federal, state, and local tax arising from its use of the OrderNext Platform.
  

8. TERM AND TERMINATION

• 8.1 Term. The “Initial Term” of this Agreement will commence on the Effective Date set forth in the Order Form and, unless earlier terminated pursuant to the terms of this Agreement, expire on the expiration date set forth on the Order Form (the “Expiration Date”).  This Agreement will renew for additional one (1) year periods (each a “Renewal Term”) unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or thirty (30) days prior to the end of a Renewal Term.  The “Term” of this Agreement will be the Initial Term and Renewal Term (if any).
  
• 8.2 Termination.
  (a) Termination for Breach.  If either Party materially breaches its obligations hereunder, the other Party may terminate this Agreement, at its option and without prejudice to any of its other legal or equitable rights or remedies, by giving the Party who committed the breach thirty (30) days’ prior written notice for failure to make any payment due hereunder (and ninety (90) days’ prior written notice for any other material breaches), unless the notified Party shall have cured the breach within such cure period.
  
• (b) Termination for Financial Reasons.  Either Party may terminate this Agreement in the event the other Party: (i) seeks the liquidation, reorganization, dissolution or winding up of itself or the composition or readjustment of all or substantially all of its debts;
  
• (b) Audit Rights. For the purposes of confirming the Sponsorship Activation Fee, if applicable, Customer shall permit VenueNext at its sole cost to inspect Customer’s written records pertaining to this Agreement; provided, however, the scope of any such inspection will be limited to records pertaining to Customer’s sponsorship/partnership agreements, where such agreements reference Customer’s Mobile Application in any way.  Any inspection shall be held no more than one (1) time per calendar year during normal business hours and following reasonable prior written notice (no less than ten (10) business days’ advance written notice), and shall not unduly interrupt or disrupt Customer’s normal business operations.  The information collected during the audit shall be considered Customer’s confidential information. If VenueNext elects to have its authorized representative perform such inspection, the authorized representative, excluding any agency with regulatory authority, shall be required to enter into a separate confidentiality agreement in form and substance reasonably satisfactory to Customer and the party performing such onsite inspection.
  
• (ii) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or substantially all of its assets;
  
• (iii) makes a general assignment for the benefit of its creditors;
  
• (iv) commences or has commenced against it a case under the U.S. bankruptcy code; or
  
• (v) files a petition for relief or otherwise seeks relief from or readjustment of its debts under any other law relating to bankruptcy, insolvency, reorganization, winding-up or composition or readjustment of debts (including, without limitation, consenting to the entry of an order for relief in an involuntary bankruptcy case against it).
  
• 8.3 Effect of Termination; Survival.  Upon the expiration or termination of this Agreement: (i) all licenses and other rights granted by VenueNext to Customer or Patrons with respect to the VN Platform for the Venue shall immediately terminate, and
  
• (ii) all payment obligations that have accrued as of the effective date of expiration or termination and the following Sections will survive any termination or expiration of this Agreement: 4.3, 6.2, 8.3, 9, 10, 12, 13, and 14.
  

9. INTELLECTUAL PROPERTY

• 9.1 VenueNext.  Title to and ownership of the VN Platform, and any modifications and improvements made thereto by or on behalf of VenueNext pursuant to services provided herein or otherwise, and all Intellectual Property Rights in and to any of the foregoing, will, at all times and for all purposes, remain with VenueNext and its suppliers and licensors. VenueNext does not transfer any ownership in or the VN Platform or any other technology, content, or other materials, or any Intellectual Property Rights in the foregoing.  VenueNext reserves all rights and licenses in and to the VN Platform not expressly granted to the Customer under this Agreement.
  
• 9.2 Software is Licensed.  Notwithstanding anything to the contrary in this Agreement, VenueNext Software hereunder and all copies thereof, whether Customer Web Application, Hosted Services, or otherwise, is licensed pursuant to the terms herein and is not sold or otherwise transferred.  VenueNext and/or its suppliers retain all title and ownership rights in the VenueNext Software, all copies thereof and all related documentation and materials.
  
• 9.3 Customer Content. Title to and ownership of the Customer Content and all Intellectual Property Rights thereto will, at all times and for all purposes, remain with the Customer.
  
• 9.4 Feedback.  The Customer will have no obligation to provide Feedback to VenueNext.  The Customer acknowledges and agrees that if the Customer does provide any Feedback, the Customer agrees to grant and does hereby grant to VenueNext a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license to make, use, sell, offer for sale, import, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
  

10. CONFIDENTIALITY

• 10.1 Definition.  “Confidential Information” means any and all technical or business information disclosed by one Party to the other Party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days after any such disclosure; and (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.  The terms and conditions of this Agreement is deemed to be the Confidential Information of both Parties.
  
• 10.2 Exclusions. Information will not be Confidential Information if such information, as the receiving Party can demonstrate: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one that has an obligation of confidentiality with respect to such information;
  
• (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one that has an obligation of confidentiality with respect to such information;
  
• (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or
  
• (iv) is independently developed by the receiving Party without use or access to the disclosing Party’s Confidential Information.  The provisions of this Section 10 will not restrict a Party from disclosing the other Party’s Confidential Information to the extent required by any law or regulation; provided that the Party required to make such a disclosure uses reasonable efforts to give the other Party reasonable advance notice of such required disclosure in order to enable the other Party to prevent or limit such disclosure.
  
• 10.3 Restrictions & Obligations.  Neither Party shall use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party any of the other Party’s Confidential Information.  Each Party shall take precautions to protect the confidentiality of such information that are no less protective than the precautions it takes to protect its own confidential information of like nature and importance, but in any event, no less than reasonable measures. Each Party may disclose the Confidential Information of the other Party to its employees and consultants and who have a bona fide need to know such Confidential Information, but solely to the extent necessary to perform the obligations or exercise the rights granted herein for no other purpose; provided that each such employee and consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other Party’s Confidential Information as those set forth in this Agreement, and each Party will be liable for the conduct of its employees, consultants and contractors to the same extent as if such Party had directly engaged in such conduct.
  

11. REPRESENTATIONS & WARRANTIES

• 11.1 Warranties.
  (a) By VenueNext.  VenueNext represents and warrants to the Customer that: (i) it is authorized to enter into this Agreement; (ii) the execution and performance of this Agreement will not conflict with or result in a material breach of the terms of any other agreement to which it is a party; (iii) it will comply with all laws and regulations applicable to VenueNext in the performance of its obligations hereunder, including but not limited to all federal, state and local laws and regulations; and (iv) to the best of VenueNext’s knowledge, the OrderNext Platform (excluding any Non-VN Technology and Services) do not and will not infringe, misappropriate, or violate the Intellectual Property Rights of any third-party.
  
• (b) The Customer represents and warrants that: (i) it is authorized to enter into this Agreement; (ii) the execution and performance of this Agreement will not conflict with or result in a material breach of the terms of any other agreement to which it is a party; (iii) it will comply with all laws and regulations applicable to the Customer in the performance of its obligations and exercise of its rights hereunder, including but not limited to all federal, state and local laws and regulations; and (iv) the Customer Content will not infringe, misappropriate, or violate the rights of any third-party, including without limitation Intellectual Property Rights, rights of publicity, and rights of privacy.
  
• 11.2 Disclaimer. THE WARRANTIES SET FORTH IN SECTION 11.1 ARE IN LIEU OF, AND EACH PARTY HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARISING OUT OF THIS AGREEMENT.  EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LICENSOR OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. VENUENEXT DOES NOT WARRANT THAT THE ORDERNEXT PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. VENUENEXT MAKES NO REPRESENTATIONS OR WARRANTIES AND WILL HAVE NO, AND HEREBY DISCLAIMS, ANY OBLIGATION HEREUNDER OR LIABILITY ARISING FROM OR CAUSED BY ANY NON-VN TECHNOLOGY AND SERVICES.
  

12. INDEMNIFICATION

• 12.1 Indemnification by VenueNext.  VenueNext will defend, indemnify, and hold harmless the Customer and their directors, officers, and employees from and against any damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action or proceeding initiated by a third party resulting from: (i) a breach by VenueNext of the warranties set forth in Sections 11.1(a); and (ii) grossly negligent acts or omissions or willful misconduct of VenueNext or its employees relating to this Agreement.  The Customer shall notify VenueNext promptly in writing of any such claim and shall give VenueNext full control, authority, information, and assistance (at the expense of VenueNext) in settling and/or defending such claim; provided that VenueNext will not settle any such claim in a manner that imposes any obligation or admits guilt on behalf of the Customer.  VenueNext shall have no liability whatsoever with respect to any claims settled by the Customer without VenueNext’s prior written consent.
  
• 12.2 Indemnification by the Customer. The Customer shall indemnify, defend and hold harmless VenueNext and its directors, officers, and employees from and against any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent caused by:  (i) a breach by a Customer of the warranties set forth in Section 11.1(b); (ii) grossly negligent acts or omissions or willful misconduct of the Customer, its employees, or subcontractors relating to this Agreement; (iii) the Customer Technology or Non-VN Technology and Services; and (iv) Patrons dissatisfied with their experience or transactions involving the services and other offerings at the Venue.  VenueNext shall notify the Customer promptly in writing of any such claim and shall give the Customer full control, authority, information, and assistance (at the expense of Customer) in settling and/or defending such claim; provided that Customer will not settle any such claim in a manner that imposes any obligation or admits guilt on behalf of VenueNext.  The Customer shall have no liability whatsoever with respect to any claims settled by VenueNext without the Customer’s prior written consent.
  
• 12.3 Indemnity Carve-outs. VenueNext shall have no obligation under Section 12.1 if and to the extent that such claim arises from the OrderNext Platform or portions or components thereof: (i) not supplied by VenueNext, (ii) made in whole or in part in accordance to requests from specific Customer or Customer’s specifications, (iii) that are modified after delivery by VenueNext, (iv) that are combined with other products, processes, services, or materials where the alleged infringement relates to such combination, (v) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) third-party technologies VenueNext delivers with the OrderNext Platform, or (vii) where Customer’s use of the OrderNext Platform is not in accordance with this Agreement.
  
• 12.4 Infringement Remedies. In the event that the OrderNext Platform is held by a court or believed by VenueNext to infringe Intellectual Property Rights, VenueNext shall have the option at its expense to: (a) modify the OrderNext Platform to be non-infringing; (b) obtain for Customer a license to continue using the OrderNext Platform; or (c) terminate the license and refund the fees paid for the, pro-rated based on the portion of the Term that has transpired from the Effective Date.  THIS SECTION 12 STATES THE ENTIRE LIABILITY AND OBLIGATION OF VENUENEXT AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED BREACH OF SECTION 11.1(a)(iv) OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE ORDERNEXT PLATFORM.
  

13. LIMITATION OF LIABILITY

• EXCEPT FOR A BREACH OF SECTIONS 4.3, OR 10, AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 12: (A) IN NO EVENT WILL THE PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF THE ORDERNEXT PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: AND (B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO  THE AMOUNTS DUE THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM AGREEMENT.  THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 
  

14. MISCELLANEOUS

• 14.1 Publicity. Upon execution of this Agreement, the Parties shall issue a mutually agreed upon press release announcing the relationship governed by this Agreement and may identify the Customer as a VenueNext customer in its marketing materials, press releases, and on its website.
  
• 14.2 Assignment. No Party may assign or transfer this Agreement without the other Party’s prior written consent except that VenueNext may, without the Customer’s consent, assign this Agreement to a successor in interest as a result of a corporate reorganization or a merger or other acquisition transaction involving VenueNext, or a sale of all or substantially all of the assets of VenueNext relating to the subject matter of this Agreement.  Any attempted assignment by a Party in violation of this Section will be null and void.  Except as above limited, this Agreement is binding upon and will inure to the benefit of each of the Parties, its successors and permitted assigns.
  
• 14.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of laws principles.  The Parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New Castle County and the Parties hereby irrevocably consent to the personal jurisdiction and venue therein.
  
• 14.4 Injunctive Relief. Notwithstanding Section 14.3, either Party may commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction or other equitable relief for protection of its Intellectual Property Rights or Confidential Information. Each Party acknowledges that the unauthorized use or disclosure of the disclosing Party’s Confidential Information or Intellectual Property Rights would cause the disclosing Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain.  Accordingly, each Party agrees that the disclosing Party will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information or Intellectual Property Rights, in addition to any other rights and remedies that it may have at law or otherwise.
  
• 14.5 Relationship. The Parties hereto are independent contractors.  Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture between the Parties.  No Party hereto (nor any agent or employee of such Party) will make any representations or warranties or incur any obligation on behalf of the other. 
  
• 14.6 Force Majeure. VenueNext will not be in breach or liable for under this Agreement resulting from failure to perform hereunder, including but not limited to delay in delivery of the VN Platform or inaccessibility of the VN Platform, when such failure, delay or inaccessibility is due to causes beyond the reasonable control of VenueNext, including without limitation, acts of government, pandemic, supplier delay, force majeure, act of God, labor unrest, fire, explosion or earthquake, or other similar causes beyond the control of VenueNext (a “Force Majeure Event”).
  
• 14.7 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.  If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
  
• 14.8 Waiver. No delay or omission by a Party hereto to exercise any right occurring upon any noncompliance or default by another Party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof.  A waiver by one of the Parties hereto of any of the covenants, conditions or agreements to be performed by one of the other Parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition or agreement contained herein.
  
• 14.9 Notices. Any notices to be provided hereunder will be deemed delivered: (i) five (5) calendar days after deposit in certified or registered mail; (ii) three (3) calendar days after deposit with a national overnight courier or one (1) business day after confirmation of delivery by such courier; or (iii) upon delivery if delivered in person or by messenger, in each case, addressed to the following addresses (or such other address as any Party may be notified of as described above):
  
• (a) If to VenueNext:
  2202 North Irving Street
  Allentown, PA 18109
  Attn: Legal Counsel
  Copy to: Legal Department
  (b) If to Customer:
  As provided in the Order Form
  
• 14.10 Entire Agreement; Counterparts.  The Exhibits attached hereto are incorporated herein by this reference.  This Agreement (including all Exhibits attached hereto) sets forth the complete, exclusive and final statement of the agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the Parties regarding such subject matter.  VenueNext hereby rejects any terms or conditions in the Customer purchase orders or in any other Customer communication that conflict with or that purport to add to or modify this Agreement.  All such terms and conditions will be deemed stricken and will be null and of no effect.  This Agreement may only be modified or amended, or any rights under it waived, by a written document executed by VenueNext and Customer.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
  

SCHEDULE A
Hosted Services

• AWS high availability cloud infrastructure, data exports.
  
• Standard event reports and NOC monitoring services.
  
• Data Services – Daily raw mobile data export and data storage for five (5) days.
  

Customer Obligations

• Connectivity – Customer must provide sufficient connectivity to its mobile application and OrderNext Platform, such that ninety-eight percent (98%) of all guests can access the OrderNext Platform Features and Functionality at the Venue at any given time through Ethernet, WiFi and/or DAS.  Customer acknowledges that without such connectivity, VenueNext cannot provide complete functionality or possibly any of the functionality on the OrderNext Platform delineated in this Schedule A.
  
• Non-VN Technology & Services – Customer will be responsible for any and all issues related to any Non-VN Technology & Services including, but not limited to, Priority Situations as defined in Schedule B. 
  
• Customer Deliverables – Customer will be responsible for content, digitals assets, use cases or other materials as requested by VenueNext, for which Customer represents Customer has rights.
  
• Equipment – Customer will procure the equipment, software license and support plan for all Non-VN Technology and Services under this Agreement for on-site deployment.
  
• Project Manager – Customer will be responsible for assigning a Project Manager from its staff to be the primary point of contact with VenueNext for all issues related to this Agreement.  Project Manager will be responsible for managing all Customer Obligations, implementation of the OrderNext Platform from the Customer’s side, reporting all Priority Situations, and making any requests for work outside the scope of this Agreement.
  

1. SCHEDULE B
   
   Maintenance & Service 
   ‍
   1. VenueNext shall attempt to provide VN Platform availability to Customer 99% of each calendar
   month (“Uptime Commitment”) commencing with the first full calendar month throughout the
   Term.  Such availability shall be calculated by subtracting the cumulative minutes of Downtime
   (as defined below) in a given month from the total number of minutes in the applicable month,
   and dividing the foregoing by the total number of minutes in that month(i.e., (total monthly
   minutes – cumulative minutes of Downtime) / total monthly minutes).   
   ‍
   2. Calculation of Downtime.
   a. Downtime. “Downtime” shall mean the VN Platform is not available to Customer.
   b. Exclusions. 
   ‍
   i. Scheduled maintenance (up to 8 hours per calendar month) otherwise resulting in
   Downtime shall not be included in the definition of Downtime.  All scheduled maintenance
   shall only be conducted after supplying Customer two (2) days advance notice except
   emergency maintenance. To the extent that, in the aggregate, VenueNext conducts
   maintenance on the VN Platform resulting in Downtime in excess of the permitted time, or
   outside of the scheduled windows, then such Downtime shall be included in the calculation
   of Downtime. 
   ‍
   ‍ii. Any VN Platform unavailability caused by Non-VN Technology and Services or other
   factors that are completely outside of the control of VenueNext shall not be considered
   Downtime. (Amazon AWS Outage, WiFi Outage at Customer, etc.)
   ‍
   iii. Any VN Platform unavailability caused, directly or indirectly, by Customer or any of
   Customer’s third-party vendors.
   3. Response and Resolution Times for Services. VenueNext agrees to respond to a report by
   Customer (given in accordance with the following Section 4 hereof) of any of the following
   “Priority Situations” within the stated Response Time and use its best efforts to fix such
   situations and underlying issues as set forth below:
   
   ● Critical (Priority 0)
   ‍
   ○ All ordering is down in at least one revenue center for one of POS, Marketplace e-
   commerce, Merchandise e-commerce or F&B e-commerce.
   ■ Time to begin resolution work:
   ● Within 30 minutes● All hands on deck - immediate internal escalation to Director of Technical
   Services as well as engineering management. Sales team and Operations
   team representatives should be notified.● High (Priority 1)
   
   ○ A financially impactful issue.
   
   ○ A significant number of users cannot place orders or operations are affected in a
   significant way.
   ■ Time to begin resolution work:
   ● Within 1 hour
   ● Escalation to Director of Technical Services immediately if resolution is
   not obvious● Medium (Priority 2)
   
   ○ Operations or end-user functionality is impacted such that the user experience is poor
   and/or staff have difficulty performing their duties. This can include issues that affect a
   single user or device.
   ■ Time to begin resolution work:
   ● Within 3 business days
   ● Escalation to on-call Director of Technical Services during normal
   business hours if resolution is not obvious.● Low (Priority 3)
   
   ○ Operations or end-user functionality is impacted such that the user experience is poor
   and/or staff have difficulty performing their duties but there is a workaround available to
   circumvent the issue.
   ■ Time to begin resolution work:
   ● Within 2 weeks
   ● Feature Request (Priority 4)
   
   ○ Customer reports an occurrence that represents expected behavior but is not their desired
   behavior
   ■ Time to begin resolution work:
   ● NA
   ● Refer customer to their Sales and Operations team representatives
   
   Customer should report each of Priority Situation and other incidents (“Incidents”) to VenueNext by
   sending an e-mail describing the incident and the contact information of the person reporting the
   Incident to the VenueNext contact provided for in the Order Form. 
   
   THE TERMS AND CONDITIONS OF THIS SCHEDULE B GOVERN THE PROVISION OF
   SUPPORT SERVICES BY VENUENEXT AND ARE NOT A PRODUCT WARRANTY.
   1. VenueNext shall attempt to provide VN Platform availability to Customer 99% of each calendar
   month (“Uptime Commitment”) commencing with the first full calendar month throughout the
   Term.  Such availability shall be calculated by subtracting the cumulative minutes of Downtime
   (as defined below) in a given month from the total number of minutes in the applicable month,
   and dividing the foregoing by the total number of minutes in that month(i.e., (total monthly
   minutes – cumulative minutes of Downtime) / total monthly minutes).   
   ‍
   2. Calculation of Downtime.
   a. Downtime. “Downtime” shall mean the VN Platform is not available to Customer.
   b. Exclusions. 
   ‍
   i. Scheduled maintenance (up to 8 hours per calendar month) otherwise resulting in
   Downtime shall not be included in the definition of Downtime.  All scheduled maintenance
   shall only be conducted after supplying Customer two (2) days advance notice except
   emergency maintenance. To the extent that, in the aggregate, VenueNext conducts
   maintenance on the VN Platform resulting in Downtime in excess of the permitted time, or
   outside of the scheduled windows, then such Downtime shall be included in the calculation
   of Downtime. 
   ‍
   ‍ii. Any VN Platform unavailability caused by Non-VN Technology and Services or other
   factors that are completely outside of the control of VenueNext shall not be considered
   Downtime. (Amazon AWS Outage, WiFi Outage at Customer, etc.)
   ‍
   iii. Any VN Platform unavailability caused, directly or indirectly, by Customer or any of
   Customer’s third-party vendors.
   3. Response and Resolution Times for Services. VenueNext agrees to respond to a report by
   Customer (given in accordance with the following Section 4 hereof) of any of the following
   “Priority Situations” within the stated Response Time and use its best efforts to fix such
   situations and underlying issues as set forth below:
   
   ● Critical (Priority 0)
   ‍
   ○ All ordering is down in at least one revenue center for one of POS, Marketplace e-
   commerce, Merchandise e-commerce or F&B e-commerce.
   ■ Time to begin resolution work:
   ● Within 30 minutes● All hands on deck - immediate internal escalation to Director of Technical
   Services as well as engineering management. Sales team and Operations
   team representatives should be notified.● High (Priority 1)
   
   ○ A financially impactful issue.
   
   ○ A significant number of users cannot place orders or operations are affected in a
   significant way.
   ■ Time to begin resolution work:
   ● Within 1 hour
   ● Escalation to Director of Technical Services immediately if resolution is
   not obvious● Medium (Priority 2)
   
   ○ Operations or end-user functionality is impacted such that the user experience is poor
   and/or staff have difficulty performing their duties. This can include issues that affect a
   single user or device.
   ■ Time to begin resolution work:
   ● Within 3 business days
   ● Escalation to on-call Director of Technical Services during normal
   business hours if resolution is not obvious.● Low (Priority 3)
   
   ○ Operations or end-user functionality is impacted such that the user experience is poor
   and/or staff have difficulty performing their duties but there is a workaround available to
   circumvent the issue.
   ■ Time to begin resolution work:
   ● Within 2 weeks
   ● Feature Request (Priority 4)
   
   ○ Customer reports an occurrence that represents expected behavior but is not their desired
   behavior
   ■ Time to begin resolution work:
   ● NA
   ● Refer customer to their Sales and Operations team representatives
   
   Customer should report each of Priority Situation and other incidents (“Incidents”) to VenueNext by
   sending an e-mail describing the incident and the contact information of the person reporting the
   Incident to the VenueNext contact provided for in the Order Form. 
   
   THE TERMS AND CONDITIONS OF THIS SCHEDULE B GOVERN THE PROVISION OF
   SUPPORT SERVICES BY VENUENEXT AND ARE NOT A PRODUCT WARRANTY.