THIS DEALER TERMS OF SERVICE (“TOS”) governs your ("Dealer") compensation from Aptito,LLC ("APTITO") for use of their digital menus and related service(s) (collectively, the "Service").
1. APPOINTMENT BY APTITO
APTITO hereby appoints Dealer to promote subscriptions (“Subscriptions”) to APTITO's Services, on the terms and conditions contained herein. Dealer will be compensated as set forth in Exhibit A for the sale of Subscriptions to businesses located in the continental United States (“Subscribers”). Dealer hereby accepts such appointment and shall use its reasonable commercial efforts to promote Subscriptions and to promote and enhance APTITO’s business, reputation and goodwill. Dealer understands and agrees that the commission structure set forth in Exhibit A is subject to change upon a written notice from APTITO.
2. DEALER’S GENERAL OBLIGATIONS.
It is Dealer's responsibility to have a thorough knowledge of APTITO's hardware, software and Services. APTITO will provide training and training materials regarding the software and Services to Dealer, including an Internet based training program, as APTITO reasonably deems necessary. Dealer is obligated to complete all training sessions deemed necessary by APTITO. Dealer shall promote and advertise the Services at its sole cost.
2.3 STANDARD OF CONDUCT
In all of its activities for APTITO under this TOS and in its own business, Dealer shall conduct itself in a commercially reputable and ethical manner, shall comply with all applicable laws, and shall engage in no deceptive sales practice or other practice which impugns APTITO’s commercial reputation and goodwill. In all dealings with Subscribers and others, Dealer shall identify itself as an independent business, and shall conduct itself with the highest standards of honesty, integrity and fair dealing. Personnel employed by, or acting under the authority of Dealer shall not be or be deemed to be employees of APTITO, and Dealer assumes full responsibility for their acts and shall have sole responsibility for their supervision and control.
2.4 HARDWARE LIMITATION
Dealer agrees to sell ONLY hardware products provided by APTITO. Sales of any other hardware products shall be deemed a material breach by Dealer that is incurable, and shall entitle APTITO to immediately terminate this TOS as set forth in Section 10.2. In no event may Dealer condition the promotion or solicitation of the Services upon the customer’s acquisition of any other product or service, except as approved by APTITO in writing. It is not Dealer's responsibility to provide or offer technical support to the Subscribers. APTITO shall provide technical support directly to the Subscribers. Dealer shall maintain Internet access and e-mail capability during the term of this TOS and be responsible for all access (authorized and unauthorized) by its employees.
3. DEALER’S BUSINESS REQUIREMENTS
Dealer shall conduct all of its Services sales in accordance with the appropriate laws, rules and regulations. APTITO disclaims any control over Dealer’s business except to the limited extent expressly provided herein to support its promotion and sale of the Services. APTITO may change the content, pricing, terms, conditions, and availability of the Services from time to time in its sole discretion. APTITO shall notify Dealer of such changes in writing as soon as practicable. Dealer shall promptly modify or replace its sale materials as necessary to reflect such change.
5. NO FINANCING OR COLLECTION OF FEES
Dealer shall not provide financing for Subscriptions or collect Subscription fees or other money due to APTITO from Subscribers, and all Subscription fees shall be billed directly to the Subscriber by APTITO, unless otherwise approved in writing by APTITO. Failure to comply with the provisions of this Section 5 shall be deemed a material breach by Dealer that is incurable, and shall entitle APTITO to immediately terminate this TOS as set forth in Section 10.2.
6. DEALER COMPENSATION PROGRAM
In consideration of Dealer’s continuing support of promotion and advertising designed to result in new Subscribers, APTITO shall pay Dealer in accordance with Exhibit A hereof (“Compensation”). APTITO may from time to time add, delete, or modify the Services and the compensation paid for such Services. APTITO reserves the right with twenty (20) day written notice to change the compensation structure in Exhibit A. Any commission or other fee paid by APTITO under this TOS shall not be contested by Dealer unless Dealer shall provide APTITO in writing within fifteen (15) business days of issuance of said commission or fee, notice that Dealer in good faith believes payment to be incorrect, a detailed statement of the reason why the Dealer believes there is an error, and all documentation in support of Dealer’s belief. APTITO shall not be required to pay any Compensation after the termination of this TOS.
7. CONFIDENTIAL INFORMATION
Dealer acknowledges that Dealer will acquire information, materials and knowledge from APTITO about APTITO’s products, programming techniques, experimental work, customers, suppliers, service and sales methods, advertising, promotion and marketing strategies, programming strategies, and prices, and that all such knowledge, information and materials are and will be the trade secrets and confidential and proprietary information of APTITO (collectively "Confidential Information"). Confidential Information will not include, however, any information which (a) is already known to Dealer, having been disclosed to Dealer by a third party without such third party having an obligation of confidentiality to APTITO; or (b) is or becomes publicly known through no wrongful act of Dealer, its employees, officers, directors, or agents; or (c) is independently developed by Dealer without reference to any Confidential Information disclosed hereunder; or (d) is approved for release (and only to the extent so approved) by APTITO; or (e) is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law. Dealer agrees to hold all such Confidential Information in strict confidence, not to disclose it to others or use it in any way, commercially or otherwise, except in the performance of services by Dealer's employees on a need-to-know basis. Dealer shall not allow any unauthorized person access to Confidential Information, either before or after expiration or termination of this TOS for as long as such Confidential Information remains APTITO’s confidential and proprietary information. Dealer further agrees to take all actions reasonably necessary and satisfactory to protect the confidentiality of the Confidential Information including, without limitation, implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of the Confidential Information. Dealer’s obligations under this Section 7 shall survive the termination or expiration of this TOS for a period of two (2) years. This TOS is made by APTITO in reliance on the financial, business and personal reputation of Dealer and its ownership and management. Accordingly, this TOS may not be assigned or encumbered by Dealer without APTITO’s prior written consent. Subject to the foregoing sentence this TOS is binding upon the parties hereto and their respective executors, administrators, heirs, assigns and successors in interest. The initial term of this TOS shall commence on the effective date hereof and shall continue for one (1) year after the date set forth below. Except as provided below, the term shall automatically renew, upon the same terms and conditions, for an unlimited number of successive renewal terms of one (1) year each, unless either party notifies the other of its intention not to renew this TOS no fewer than thirty (30) days prior to the date of termination advised in writing of other. This TOS shall be terminable upon the following conditions:
10.1 TERMINATION WITHOUT CAUSE
Either party may terminate this TOS at any time for any or no cause, reason or justification, upon at least thirty (30) days prior written notice to the other stating its intention to terminate.
10.2 IMMEDIATE TERMINATION
APTITO may terminate this TOS immediately upon written notice to Dealer, without opportunity to cure, if Dealer (a) knowingly misrepresents the Services to customers or otherwise misleads them as to their content, rates, or terms; (b) violates any law or knowingly breaches the standards of conduct set forth in Section 2.6; (c) knowingly uses or discloses Confidential Information in violation of Section 7; or (d) commits a material breach hereof which by its terms or nature is not curable.
10.3 BANKRUPTCY OR CESSATION OF BUSINESS
Subject to applicable laws, this TOS shall terminate automatically upon Dealer’s cessation of business, election to dissolve, dissolution, insolvency, failure in business, commission of an act of bankruptcy, general assignment for the benefit of creditors, any levy, attachment or foreclosure, or the enforcement of any of the rights of a secured creditor of Dealer or the filing of any petition in bankruptcy or for relief under the provisions of the bankruptcy laws by or with respect to Dealer.
11. RIGHTS AND OBLIGATIONS UPON TERMINATION OR CANCELLATION.
If this TOS is immediately terminated under Section 10.2, APTITO shall not be required to pay any Compensation after the termination. If this TOS is terminated for any other reason, APTITO may withhold payment of compensation then due for up to sixty (60) days after all matters relating to the termination of the Dealer are settled.
11.2 OBLIGATIONS TO APTITO
Upon termination of this TOS for any reason, Dealer shall immediately cease using and shall, upon request of APTITO, deliver to APTITO; (a) any unused APTITO sales literature; and (b) all forms, directives, policy manuals and other written information and materials supplied to it by APTITO pursuant to this TOS. On termination, Dealer shall immediately discontinue all solicitations of the Services and all use of APTITO’s Confidential Information and shall cease to identify itself as an authorized entity promoting and soliciting on behalf of APTITO. Dealer agrees that for a period of three (3) years after termination, Dealer shall not directly solicit any Subscriber, who was procured by Dealer and is a Subscriber as of such termination date to terminate their Service. DEALER WAIVES ANY RIGHT TO COMPENSATION AND DAMAGES IN CONNECTION WITH THE TERMINATION OF THIS TOS IN ACCORDANCE HEREWITH, TO WHICH IT MIGHT OTHERWISE BE ENTITLED UNDER ANY APPLICABLE LAW. BY WAY OF EXAMPLE, DEALER SHALL HAVE NO RIGHT, BASED ON SUCH TERMINATION, TO ANY PAYMENT FROM APTITO FOR LOST BUSINESS, FUTURE PROFITS, LOSS OF GOODWILL, REIMBURSEMENT OF EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS ENTERED INTO, ADVERTISING COSTS, OVERHEAD OR OTHER COSTS INCURRED OR ACQUIRED BASED UPON THE BUSINESS DERIVED OR ANTICIPATED UNDER THIS TOS OR FOR ANY OTHER DAMAGES. The covenants and conditions herein, which, by their terms or nature, extend beyond the termination or expiration of this TOS, shall survive such termination or expiration until fully performed. Neither party shall be liable for any loss, damage, cost, delay, or failure to perform in whole or in part resulting from causes beyond such party’s control, including but not limited to, fires, strikes, insurrections, riots, or requirements of any governmental authority.
11.6 INDEPENDENT CONTRACTOR RELATIONSHIP
Dealer is an independent contractor authorized during the term hereof to promote orders for the Services. Dealer is not a partner, franchisee or employee of APTITO for any purpose whatsoever. The provisions of this TOS are for the benefit only of the parties hereto and no third party may seek to enforce, or benefit from these provisions. Dealer shall defend, hold harmless and indemnify APTITO and its affiliates and their respective employees, officers, and directors from and against any and all third party claims and resulting damages, costs, and other liabilities arising out of Dealer’s negligent performance, breach or alleged breach of its obligations under this TOS.
11.8 LIMITATION OF LIABILITY
IN NO EVENT SHALL APTITO BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF USE EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APTITO’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS TOS EXCEED THE AMOUNTS PAID TO DEALER FOR THE SALE OF SERVICES DURING THE PREVIOUS TWELVE (12) MONTH PERIOD. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE. All issues with respect to the construction of this TOS and the rights and liabilities of the parties shall be governed by the laws of the State of New York, without regard to its conflicts of law rules. Each party hereby agrees that any dispute, claim or other litigation arising out of this TOS shall be arbitrated in accordance with Section 12.9 hereof. This TOS contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. This TOS will not be varied except by an instrument in writing subsequently executed by an authorized representative of each party. Dealer shall comply with all applicable laws, rules and regulations of all governmental authorities. Each party shall pay all of its costs and expenses under this TOS and shall be solely responsible for the acts and expenses of its own employees. The failure of APTITO to require the performance by Dealer of any provision of this TOS shall not affect in any way the right to require such performance at any later time nor shall the waiver by APTITO of a breach of any provision hereof be deemed a waiver of such provision. Any notice or other written communication required or permitted to be given by this TOS shall be deemed given when personally delivered (which includes delivery by a major courier or overnight delivery service), electronically mailed or sent via telecopy, or three (3) business days after it has been sent by United States first-class, certified, or registered mail, postage prepaid, properly addressed to the addresses set forth below the signatures herein.
12.7 INVALID OR UNENFORCEABLE PROVISIONS
If any provision of this TOS is determined to be invalid or unenforceable, that provision shall be deemed severed from the remainder, which shall remain enforceable. If any provision of this TOS does not comply with any law, ordinance or regulation of any governmental or quasi- governmental authority, now existing or hereinafter enacted, such provision shall to the extent possible be interpreted in such a manner so as to comply with such law, ordinance or regulation, or if such interpretation is not possible, it shall be deemed amended, to satisfy the minimum requirements thereof. Any taxes asserted against Dealer or APTITO by any governmental authority as a result of this TOS shall be the responsibility of the parties as follows: (a) Dealer shall be responsible for any taxes or levies arising out of its performance hereunder; and (b) each party shall be responsible for any taxes related to its income derived hereunder. Any dispute or claim arising out of the interpretation, performance, or breach of this TOS, including without limitation claims alleging fraud in the inducement, shall be resolved only by binding arbitration, at the request of either party, in accordance with the rules of the American Arbitration Association, modified as herein provided. In any arbitration, the arbitrators shall: (1) apply the substantive law of the State of New York, except with respect to that State’s application of choice of law considerations; and (2) shall not admit any evidence with respect to settlement negotiations. In the event of any litigation or arbitration between the parties with respect to this TOS, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs of litigation/ arbitration as the court or tribunal may determine. Subject to the restrictions against assignment herein provided, this TOS shall bind and inure to the benefit of the successors and permitted assigns of each of the parties hereto.
12.12 AUTHORIZATION; CAPACITY
Each party represents that the execution, delivery and performance of this TOS have been duly authorized, that it has the full right, power, and authority to execute, deliver and perform this TOS, and that such execution, delivery and performance do not and will not conflict with any agreement, instrument, order, judgment or decree to which a party is a party or by which it is bound. [REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] Date: EXHIBIT A DEALER COMPENSATION SCHEDULE APTITO will compensate Dealer for all sales of Services made by Dealer. For the purpose of this TOS, “Customers Obtained by Dealer” shall be those persons or entities that are brought to the Service provider network directly by the Dealer who is registered with APTITO. Dealer’s compensation credits will be based on revenues collected from Customers Obtained by Dealer except for any applicable taxes (“Revenues”) as set forth below (“Compensation”). APTITO shall apply the Compensation credits to Dealer’s account on a monthly basis commencing thirty (30) days after the last day of the calendar month in which Compensation is first received by APTITO. All Compensation shall be deemed exclusive of income or other taxes or fees, the payment of which shall be the sole responsibility of Dealer. Compensation for a given customer will end if and when the customer’s service is terminated by the customer or the Aptito. Dealer’s compensation is based upon monthly collected Revenue, i.e. Dealer will not be paid on bills that were not paid by customers. Compensations will not be paid on any state or federal taxes or any other fees that APTITO bills for and passes through to a federal or state agency. The monthly compensation credits generated by Dealer will be posted by APTITO to the Dealer’s account and automatically applied to the oldest open invoices on the 15th of every month. In the event no open invoices exist on the Dealer’s account, the credit will revert to APTITO after one year from date of issuance. A customer means an end-user of the Service who executes a Service Agreement and who has become an end user of the Services as a direct result of Dealer’s performance under this TOS. Customers shall not include: (a) an individual or entity who was a customer of the Service provider for any period of time during one hundred and eighty (180) days immediately preceding the date Dealer first submits such individual or entity to Service provider to become a customer under this TOS; (b) any existing Service provider customer account that upgrades a Service initially obtained prior to the customer being submitted by Dealer to become a customer under this TOS, or (c) the consolidation into a single account or multiple accounts that initially contracted for Services prior to being submitted by Dealer to become a customer under this TOS.