6. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
6.1 Mutual Representations and Warranties: With the knowledge that the other party is relying upon such representations and warranties to enter into this Agreement, Each Party hereby represents and warrants as follows:
(a) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses provided herein;
(b) it shall comply with all applicable federal, provincial, and municipal laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the internet, privacy, promotions, and unfair business practices; and
(c) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any other contract, agreement, or commitment binding upon it, including, with respect to the Merchant, any franchise agreement.
6.2 Additional Representations and Warranties of the Merchant: In addition to the representations and warranties set forth in Section 6.1, the Merchant represents and warrants that:
(a) the Merchant Content and the Merchant Marks and Lucky To Go’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement;
(b) The Merchant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with Lucky To Go’s use of the Merchant Content and the Merchant Marks and/or Lucky To Go’s exercise of any license granted hereunder, and Lucky To Go shall not be obligated to pay any fees or obtain any third-party licenses in connection therewith; and
(c) the Merchant shall have and accept the following responsibilities in the ongoing support of this Agreement –
(i) all food must be packaged in a presentable manner, with no grease stains on the boxes and clear labels on all the items;
(ii) all containers, boxes, trays, and/or vessels used to transport the food can use a Restaurant’s logo or colours, but must also include a Lucky To Go label.
(iii) the Menu shall contain information about the category of food (such as Vegan, Vegetarian, Non-veg, Gluten-free, etc.);
(iv) the Merchant may need to provide ingredients details on phone to Customer if requested (i.e. for allergy or intolerance confirmation purposes);
(v) confirm the ability to fulfill Orders following receipt;
(vi) to notify Lucky To Go immediately if issues arise that will affect or delay the Order fulfillment so as to revert the payment to Customer.
(vii) to notify on the Menu, disable from the Menu or remove from the Menu any item which is out of stock.
(viii) to fulfill and have complete orders ready within 5 minutes of pickup time indicated in Merchant Panel.
(ix) to use commercially reasonable efforts to engage in environmentally friendly practices, including packaging all Orders using compostable or high-grade recyclable materials.
(x) to provide food Orders on account that will be paid on a bi-monthly basis (meaning twice per month).
(xi) to inform Lucky To Go in writing at email@example.com of any concerns or discrepancies in connection with an Order summary no less than 7 days from the statement date of such Order summary.
(xii) satisfy all local governing health regulations for food preparation.
(xiii) Provide prompt confirmation to acknowledge receipt of Order and confirmation of ability to fulfillment.
(xiv) promptly select a different time slot for delivery if Order fulfillment may get delayed.
(xvi) to call LTG for statement queries only between 11 am to 4 pm
(xvii) to provide Napkins & Utensils for every meal Order, unless otherwise requested.
6.3 Covenants of the Merchant:. The Merchant covenants and agrees as follows:
(a) as far as is reasonably possible, the prices the Merchant charges Customers through the Platform shall be the same prices (or lower) that it charges Customers not using the Platform.
(b) the Merchant shall periodically review and update (as necessary) the prices on the Platform to ensure that the Merchant is in compliance with the representation set forth in Section 6.2.
(c) the Merchant shall properly process (in a timely manner) any and all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform;
(d) if the Merchant has signed up for On-Demand Custom order Delivery, it shall not offer tobacco-based products on the Platform, and if the Merchant attempts to do so, Lucky To Go may, in its sole and unfettered discretion, terminate the Merchant’s participation on the On-Demand CUSTOM Delivery program or terminate this Agreement and the Merchant’s access to the Platform.
6.3 Disclaimer: The Merchant acknowledges and agrees as follows:
(a) LUCKY TO GO CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY Lucky To Go HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Lucky To Go MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY EARN THROUGH THE PLATFORM., NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE BRANDED APPS, THE DATA, THE MERCHANT CONTENT, THE MERCHANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
(b) LUCKY TO GO HAS MADE EVERY EFFORT TO DISPLAY THE ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH Lucky To Go WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE ADDITIONAL PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO AN ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
7. LIMITATION OF LIABILITY
7.1 EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY OTHER PARTY) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS OR LOSS OF OPPORTUNITY) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
Notwithstanding the foregoing, the Exclusions and limitations of liability set forth in this section shall not apply to:
(a) damages arising from a Party’s gross negligence or willful misconduct.
(b) a Party’s indemnification obligations.
PROVIDED ALWAYS that Lucky To Go’s aggregate liability for damages related to any Order or order for Additional Products and Services shall not, in any event, exceed the sum of money actually paid to (and received by) Lucky To Go for the applicable Order.
8.1 Mutual Indemnification: Each Party shall indemnify, have a duty to defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, representatives, and agents (collectively hereinafter referred to as the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, levies and other costs and expenses, including reasonable legal fees and disbursements and any and all costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively hereinafter referred to as “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding either threatened or initiated to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder.
8.2 Additional Indemnifications by the Merchant: In addition, the Merchant shall indemnify, have a duty to defend, and hold harmless Lucky To Go (and Lucky To Go’s officers, directors, employees, representatives, and agents) from and against any and all Losses incurred by Lucky To Go (or Lucky To Go’s officers, directors, employees, representatives, and agents) in connection with any third-party claim, action, or proceeding either threatened or initiated to the extent arising from or relating to:
(a) the Merchant’s breach or alleged breach of the terms, conditions, representations, warranties or covenants of the Merchant contained in this Agreement.
(b) an Adverse Event; or
During the Term, Lucky To Go shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that you are a client of Lucky To Go and a user of the Platform. In addition, upon the reasonable request of Lucky To Go, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, you, if requested by Lucky To Go, shall make one (1) or more representatives available for a strategic press interview.
10. GENERAL TERMS
10.1 Governing Law and Attornment: This Agreement is governed by and will be interpreted in accordance with the laws in force in the Province of British Columbia, Canada, and the parties hereto hereby attorn to the Courts of the relevant jurisdiction in the City of Victoria, in the Province of Canada.
10.2 Amendment: Any modification or amendment to this Agreement must be in a writing signed by both parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); PROVIDED ALWAYS that Lucky To Go may modify this Agreement at any time by posting such modification on the Merchant’s individual account and any such modification shall go into effect thirty (30) days after it is so posted. It is Merchant’s responsibility to check for such modifications on a regular basis.
10.3 Headings: The headings appearing in this Agreement are inserted for convenience of reference only and will not affect the interpretation of this Agreement.
10.4 Successors and Assigns: This Agreement will ensure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns and their respective present and future affiliated and subsidiary companies and licensees.
10.5 Counterparts: This Agreement may be executed in any number of identical counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart.
10.6 Severability: Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law, but, if any provision of this Agreement shall be invalid or prohibited thereunder, such provision shall be ineffective to the extent of such prohibition without invalidating the remainder of such provision or the remaining provisions of this Agreement.
10.7 No Waiver: The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder and shall not preclude, bar, or estop the non-breaching Party from the right to enforce any other (or any other occurrence of a breach of any) term or condition of this Agreement.
10.8 Gender and Plural: In this Agreement the singular shall be deemed and construed to include the plural (and vice-versa) and the masculine shall be deemed and construed to include the feminine and neutral genders as applicable (and vice-versa).
10.9 Notice: Any notice, request, demand or communication required or permitted to be given under this Agreement shall be in writing and delivered by hand, facsimile transmission, email (with delivery and read receipt activated) or prepaid registered mail (return receipt requested) to the party to which it is to be given as follows:
To “Lucky To Go”: ___100-703 Broughton Street, Victoria
__________________ British Columbia, Canada. V8W 1E2__________
To the Merchant: Name Referred in email
10.10 Further Assurances: Each of the parties shall execute and deliver such further documents and do such further acts and things as may be reasonably required from time to time, either before, on or after the Closing Date, to carry out the full intent and meaning of this Agreement.
10.11 No Partnership: No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other Party in any respect whatsoever.
10.12 No Authority: The Merchant and its employees, representatives and agents will have no authority to represent Lucky To Go or its affiliates without Lucky To Go’s permission or bind Lucky To Go or its affiliates in any way, and the Merchant agrees that neither the Merchant nor its employees will hold themselves out as having authority to act for Lucky To Go or its affiliates.
THE MERCHANT HEREBY ACKNOWLEDGES THAT THE MERCHANT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and year first above written.