inKind
STANDARD TERMS OF BUSINESS
The inKind rules of working together
1. Gift Card Program

A. inKind is authorized to promote and sell Gift Cards on Merchant's behalf subject to the terms of this Agreement and the "Terms of Sale" located at https://www.inKind.com/resources/terms. The Gift Card will evidence the dollar amount of goods and services redeemable at the F&B Outlet and will be sent to the Purchaser electronically once payment is received. The Purchaser will then redeem the Gift Card for products sold by the Merchant by presenting the Gift Card in electronic form at the F&B Outlet. Merchant is the issuer of the Gift Cards and seller of the products for which the Gift Cards can be used to purchase. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.

B. inKind is authorized to promote and sell Gift Cards on Merchant's behalf through any platform, affiliates, business partner network, marketplace, or referral network. The Gift Cards may be offered to all or part of inKind's user base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, www.inKind.com, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by inKind, its affiliates or business partners.

C. inKind reserves the continuing right to reject, revise, or discontinue any Offering, at any time and for any reason in inKind's sole discretion, and to terminate the Offering and to remove all references to the Offering and Gift Card from the Offering Website; and redirect or delete any URL used in connection with the Offering.
2. Role of inKind

The Merchant acknowledges and agrees that it will rely on its own judgment in using inKind's services. inKind (i) makes no representations with respect to the quality of any opportunity; (ii) does not guarantee the performance of any Purchaser; (iii) will make commercially reasonable efforts to ensure that the Offering Website will function in accordance with its specifications; and (iv) is not an investment adviser, does not provide investment advice and does not recommend securities transactions and any display of information about an investment opportunity does not constitute a recommendation as to the appropriateness, suitability, legality, validity or profitability of any Offering.
3. Role of Merchant

A. Merchant is responsible for all purchaser service in connection with the use of Gift Cards and for supplying all goods and services paid for with the Gift Cards by a Purchaser. Merchant shall honor all Gift Cards until redeemed in full.

B. Merchant agrees to comply with the Gift Cards terms and conditions as stated on the Offering Website, including but not limited to the "Terms of Use" http://www.inKind.com/terms, and to ensure that the Gift Cards comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees. Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Merchant, but only when required, inKind will provide Merchant with information in inKind's possession that the Merchant needs to comply with its obligations under this Agreement.
4. Representations

The Merchant represents and warrants that:

(a) as of the Effective Date, Merchant is not the subject of a bankruptcy or reorganization proceeding that has not been discharged or dismissed, do not have a plan to make a bankruptcy filing and have not met with a bankruptcy attorney within the past six months;

(b) it is current with rent payments;

(c) it has no intention to close the F&B Outlet;

(d) there is no pending, threatened or actual litigation against the Merchant;

(e) the historical revenue figures provided are accurate and true;

(f) it will not treat Purchasers differently from other paying customers in the scheduling or delivery of services, and shall price items at the same level and on the same terms as other paying customers, and not charge any additional fees;

(g) all information provided is true, correct and accurate;

(h) it has all required permits, licenses, approval, consents and authorizations necessary to conduct its business;

(i) F&B Outlet is in compliance with all laws, regulations and requirements that affect it;

(j) it has the legal right and ability to execute this Agreement and perform all of its obligations under this Agreement without violating any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which it is subject;

(k) it is duly qualified, licensed and in good standing in each state in which it is doing business;

(l) it's papers and all amendments thereto have been duly filed and are in proper order.
5. Confidentiality

Each party acknowledges that it will have access to certain Confidential Information of the other party and each party agrees that it will not use in any, for its own account or the account of any third party nor disclose to any third party (except as expressly permitted), any of the other party's Confidential Information.

In this clause, "Confidential Information" means any information disclosed by either party to the other party, which is designated as "Confidential," "Proprietary" or some similar designation. Notwithstanding the foregoing, Confidential Information shall not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is required by law or supervisory authority, the provisions of a law or ordinance, stock exchange regulation, a legal proceeding or a court judgment to be disclosed by the receiving party.
6. Merchant Content

Merchant may be asked to provide a logo, photograph, or other marketing materials ("Merchant Content") to be used to market the Gift Cards. During the Term only, Merchant hereby grants inKind a non-exclusive, irrevocable, royalty-free and worldwide license to reproduce, use, display, perform, distribute, adapt, reformat, and create derivative works based upon some or all of the Merchant Content for the purpose of developing, distributing, and otherwise promoting the Gift Cards. Merchant will not provide any Merchant Content for which it cannot grant the licenses described in this paragraph.
7. inKind Intellectual Property

Merchant acknowledges and agrees that, as between the parties, inKind owns all interest in and to the Offering Website, inKind trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Offering Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by inKind or at inKind's direction, or assigned to inKind, and any materials, software, technology or tools used or provided by inKind to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively "inKind IP"). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the inKind IP or any portion thereof, or use such inKind IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that inKind grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license to use inKind's mobile merchant software application, solely for the purposes permitted by that software until all Gift Cards have been redeemed. Merchant shall keep the inKind IP confidential, and shall not prepare any derivative work based on the inKind IP or translate, reverse engineer, decompile or disassemble the inKind IP.

Merchant shall not take any action to challenge or object to the validity of inKind's rights in the inKind IP or inKind's ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use inKind IP in any medium without prior written approval from an authorized representative of inKind. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of inKind or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any inKind IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and inKind. All rights to the inKind IP not expressly granted in this Agreement are reserved by inKind.
8. Customer Data Restrictions

"Customer Data" means all identifiable information about Purchasers generated or collected by inKind or Merchant, including, but not limited to, purchasers' name, addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Offering as authorized by this Agreement. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

As long as Merchant uses Customer Data in compliance with applicable law and Merchant's posted privacy policy, restrictions stated in this Agreement on Merchant's use of Customer Data do not apply to: (i) data from any Purchaser who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Merchant who becomes a Purchaser of Merchant in connection with such Purchaser explicitly opting in to receive communications from Merchant.
9. Payment

Merchant will not attempt to bill or collect reimbursement from any third-party payor, for any of Merchant's services. Merchant will accept the amount received from inKind as payment in full for all services provided by Merchant to a Purchaser using GIft Cards to purchase food, beverages and other products offered by the Merchant.
10. Enforcement of Payment

In the event inKind is required to engage an attorney for the purposes of collecting any amounts due, the attorneys' fees and all costs incurred by inKind in connection with the collection shall be the solely responsibility of inKind and due to inKind upon demand.
11. Force Majeure

inKind and its Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond inKind' reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In the event the force majeure event continues for a period of more than sixty (60) days, either party may terminate this Agreement upon written notice to the other party.
12. Third Party Beneficiaries

This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13. Taxes

Merchant will be solely responsible for calculating, collecting and remitting any value added, use, occupancy, restaurant, privilege, gross receipts, sales or other applicable taxes (each a "Tax" and collectively, "Taxes") owed to federal, state, or local taxing authorities in connection with the sale or redemption of Gift Cards.
14. Notifications

All notices, requests, demands, required disclosures and other communications from inKind to the Merchant will be transmitted to the Merchant by email to the address provided under the Merchant's signature in the Credit Purchase Agreement. The Merchant shall send all notices or other communications required to be given hereunder to the Company via email at notices@inKind.com with a hard copy sent to: inKind, 1300 N St NW, #405, Washington, DC 20005, Attention: Merchant Support. A notice delivered personally will be deemed given only when acknowledged in writing by the person to whom it is delivered.

A notice that is sent by certified or registered mail will be deemed given three (3) business days after it is mailed. A notice that is sent by Federal Express or other recognized and reputable national overnight courier will be deemed given on the business day following the date such notice is accepted by such overnight courier for delivery to the intended recipient. Any email notice given by inKind shall be deemed to have been delivered and received on the first business day following that on which the electronic mail has been sent (assuming that there is no error in delivery). Any party may designate, by notice to all of the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed to those substitute addresses or addressees.
15. Assignment

The Merchant will not assign this Agreement, or delegate or sublicense any of the Merchant' rights under this Agreement, without inKind' prior written consent. Any assignment or transfer without inKind' prior written consent is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
16. Waiver

The failure by a party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit that party's right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.
17. Severability

If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
18. Survival of Terms

The following clauses of this agreement shall survive the termination or expiration of this Agreement for any reason: clauses 3A, 5, 7, 13, 18, 19 and any other terms herein which expressly state that such terms will survive or which by their nature are required to survive to give effect to the surviving terms stated to survive, shall survive the termination or expiration of this Agreement for any reason and will continue in full force and effect subsequent to and notwithstanding such termination, until such provisions are satisfied or by their nature expire.
19. Governing Law; Venue

The laws of the State of Delaware, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between the Merchant and inKind. In the event of any dispute, claim, or disagreement arising from or relating to this Agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 30 days, then, upon notice by either Party to the other, all disputes, claims, or differences shall be finally settled by a single arbitrator in an arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Such arbitration shall take place by telephone or video-conference, if practicable as determined by the arbitrator, or in the District of Columbia, if in-person hearings are required. Merchant agrees that by entering into this Agreement, you and inKind are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may seek relief in a court of competent jurisdiction solely to seek immediate injunctive relief where such Party stands to suffer irreparable harm absent such relief.
20. Term and termination

A. This Agreement will continue in full force and effect until all Gift Cards sold have been redeemed. However, either party may, on 30 days' written notice to the other party, request that no further Gift Cards are sold.

B. In the event Merchant ceases operations prior to all Gift Cards being redeemed, Merchant, not inKind shall be liable to Purchasers for any outstanding Gift Card balances.

C. In the event that a party materially breaches this Agreement (including but not limited to, the honoring of Gift Cards to be redeemed), such party shall have three days to rectify such breach.
21. Disclaimers

INKIND AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO SERVICES. THE MERCHANT UNDERSTANDS THAT USE OF THE SERVICES IS AT THEIR OWN RISK AND THAT INKIND PROVIDES THE SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." INKIND DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. TO THE EXTENT PERMITTED UNDER THE LAW, INKIND EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT.
22. Limitations of Liability

INKIND & ITS AFFILIATES WILL NOT BE LIABLE TO THE MERCHANT FOR ANY DAMAGES WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER INKIND NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE MERCHANT'S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR THE Merchant' USE OF OR ACCESS TO THE SERVICES, (II) INKIND'S DISCONTINUATION OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY THE MERCHANT IN CONNECTION WITH THIS AGREEMENT OR THE MERCHANT'S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY DATA, OTHER THAN IN THE CASE OF GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT. IN ANY CASE, INKIND AND ITS AFFILIATES' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THE Merchant ACTUALLY PAYS INKIND UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM.
23. Indemnity

The Merchant shall indemnify against, and hold inKind, its affiliates and their representatives and agents harmless from, any and all actual or direct losses, liabilities, judgments, arbitration awards, settlements, damages and costs (collectively, "Losses"), resulting from or arising out of any third party suits, actions, claims, demands or similar proceedings (collectively, "Proceedings") to the extent they are based upon the acts or omissions of the Merchant, or the Merchant's business' directors, officers, managers, employees or other agents or from the receipt or use of the Services (including representations about the services) by the Merchant, or the Merchant's business' directors, officers, managers, employees or other agents. The Merchant shall indemnify inKind, its affiliates and their representatives and agents harmless from, any and all Losses arising from or related to the Merchant' breach of laws, rules or regulations.
24. Entire Agreement

This Agreement is the entire agreement between the Merchant and inKind regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Merchant and inKind, whether written or verbal, regarding the subject matter of this Agreement.
25. Authority

Each party hereto represents and warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement, and that the person signing this Agreement on behalf of such party has been properly authorized and empowered to enter into this Agreement on its behalf.
26. Counterparts; Electronic delivery

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
27. Definitions

In these Standard Terms of Business, the following definitions apply:

"Affiliate" means an entity that is controlled by or controls a party to this Agreement or is controlled by the same entity that controls a party to this Agreement.

"Offering" means the offering of Gift Cards.

"Offering Website" means the website hosted and built by inKind which will display the Offering.