TERMS OF SERVICE
Last updated: 4th of March, 2023
Welcome to the website (the “Site”), an online platform (the “Platform”) that provides access to Cumin Club Indian Kitchen and services including, virtual restaurant and cloud kitchen services (the “Cumin Bowl Services”), meal kit services, food products, features, content, applications, and other products offered by TCC Brands Inc. (“TCC Brands”, “Licensor”, “we”, “us” or “our”) (together with the Platform, including the Site, and Cumin Club Indian Kitchen Services, the “Services”). The Platform is operated by TCC Brands, except and unless otherwise indicated.
These Terms of Service (“Terms of Service”), along with the Other Policies (defined below), govern your use of the Platform, which includes the Site and any other websites, domains, sub-domains, mobile applications and technology products associated therewith, and your access to, and use of, the Services. These Terms of Service, along with the Other Policies, set forth the legally binding terms and conditions, so please read them carefully before you use the Services.
ACCEPTANCE OF TERMS OF SERVICE.
By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Platform, you (“you” or “Licensee”) agree to these Terms of Service, the Privacy Policy (also found here: __________________ (the “Privacy Policy”) and all other operating rules, policies and procedures that may be published from time to time on the Site by us (collectively, with the Privacy Policy, the “Other Policies”), each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
These Terms of Service apply to all users of the Services.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
Eligibility. The Services are offered and available to users who are of legal age and capacity to form a binding contract with TCC Brands and meet all of the eligibility requirements, including purchasing and using our products and Services. If you do not meet all of these requirements, or if you do not want to be bound by these Terms of Service and the Other Policies, you must not access or use the Services.
You represent and warrant that you are of legal age in your state of residence and capacity to form a binding contract with TCC Brands and meet all of the eligibility requirements, including purchasing and using our products and Services (collectively, the “Eligibility Requirements”). If you do not meet any one of the Eligibility Requirements, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that your use of the Services is in compliance with all laws, rules and regulations applicable to you, and the right to access the Services is revoked where your use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third-party.
Registration. To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use, as a username, a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
Consent to Doing Business Electronically; Communications. Because the Platform operates on the Internet, you consent to transact business with us electronically. You agree that we may provide notices to you by electronic means, for example, by posting it on the Site, sending you a notification or message, emailing it to an email address that you have provided us or mailing it to any postal address that you have provided us. All notices by any of these methods will be deemed received by you no later than the earlier of when received or 24 hours after sent to the contact information you provided, except for notice by postal mail, which will be deemed received by you no later than the earlier of when received or three business days after it is mailed to the most recent address we have on file for you.
You consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any purpose relating to your use of the Services, at any telephone number or physical or electronic address you provide or at which you may be reached.
In the event you change or deactivate your e-mail address, mailing address, or any other contact information you have provided, you agree to promptly update your contact information.
LICENSE; INTELLECTUAL PROPERTY.
Definitions.
Content. The term “Content” means information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services.
Gross Revenue. The term “Gross Revenue” means [all revenue generated by Licensee in connection with its use of Cumin Club Indian Kitchen Services].
Intellectual Property. The term “Intellectual Property” means any and all trademarks, trademark applications, trade names, patents, patent applications, copyrights, trade secrets, “know-how”, product concepts or specifications, product formulas, or product samples or prototypes.
Licensor IP. The term “Licensor IP” means all Intellectual Property owned by Licensor, including, without limitation, all Work Product.
License Term means the period of time where you have an active Account and are using Cumin Club Indian Kitchen Services.
Terms of License means the terms and conditions specifically applicable to the Licensee’s License and use of Cumin Club Indian Kitchen Services, as set forth in this section of the Terms of Service.
Work Product. The term “Work Product” means any tangible work product or other deliverables created by Licensee or Licensor, either alone or jointly with others, in connection with the License.
Use License.
During the License Term and subject to the other provisions of these Terms of Service, Licensor grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “License”) to use the Cumin IP within the virtual kitchen, virtual restaurant, cloud kitchen, and restaurant industry (the “Industry”) and in connection with the marketing, promotion, advertisement, of Cumin Club Indian Kitchen subject to the following conditions and restrictions:
- Licensee’s License is limited solely to use in the Industry;
- Licensee is prohibited from operating Indian food focused restaurants, virtual or otherwise, however Licensee may operate other restaurant concepts;
- Licensee agrees to only use an approved menu and set menu pricing as outlined by Licensor, which shall be subject to change from time to time, at the sole and absolute discretion of Licensor, with such changes effective upon seven-day notice to Licensee;
- Licensee and Licensee’s employees and independent contractors (“Licensee Personnel”) must (a) be formally trained by TCC Brand’s management or employees (“Licensor Personnel”) and (b) follow Cumin Club Indian Kitchen Operator Manual for operation of Cumin Club Indian Kitchen Services;
- Prior to using, or providing any training utilizing any Cumin IP, Licensee’s Personnel must sign an agreement (in the form and substance approved by Licensor) that (i) grants Licensor and Licensee the right to use such Licensee Personnel’s name, likeness, image and testimony in internal and external marketing and advertising materials and (ii) includes non-competition, non-solicitation and confidentiality and work-for-hire/assignment of intellectual property provisions;
- Licensee may market through all forms of media Licensor’s brand names and images, provided that such use and marketing materials are (i) approved by Licensor (which shall not be unreasonably withheld, conditioned or delayed) and (ii) in accordance with Licensor’s brand guidelines related to the Cumin IP (“Brand Guidelines”);
- Licensee shall not use the Cumin IP in any manner not expressly permitted by these License Terms or in any manner not expressly permitted in these Terms of Services;
- Licensee shall only use the Cumin IP in the format(s) approved by Licensor, in its sole discretion, and in accordance with Brand Guidelines;
- Licensee shall make no alterations thereto or use any variation of the Cumin IP without the express prior written consent of Licensor;
- Licensee shall provide Licensor, at Licensor’s request, with samples of all materials prepared by or for Licensee and intended to be used by it which bears or otherwise uses or incorporates the Cumin IP;
- Licensor retains the right to make alterations to the Cumin IP, in its sole discretion, and shall notify Licensee of any such changes, and reserves the right to require that Licensee comply with any such changes; and
- Licensee shall not assign or sublicense its rights under its License, either voluntarily or involuntarily, without the express prior written consent of Licensor.
Use of Trademarks. During the License Term, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use Licensor’s trademarks, trade names, trade dress, and other intellectual property (collectively, "Licensor’s Trademarks") in the performance of Licensee’s obligations hereunder. The Licensor’s Trademarks are, and shall remain, the sole property of Licensor. Licensee agrees that its use, display, and representation of the Cumin IP shall, to the extent permitted by law and as applicable to any valid registrations, be accompanied by a “TM” superscript or a notice that the mark is registered in the United States Patent and Trademark Office by displaying the words “Reg. U.S. Pat. & T/M Off.”, the letter “R” enclosed within a circle (i.e. ®), or the letter “C” enclosed within a circle (i.e. ©), depending upon the registration status of the Cumin IP, as may be advised by Licensor from time to time.
Ownership of Intellectual Property.
Licensee agrees that any and all Work Product conceived, written, or created in connection herewith or shall be deemed a “work made for hire” and will be owned exclusively by Licensor. If the Work Product, or any portion thereof, is not deemed a work made for hire or if doing so would cause Licensee to be considered an employee of Licensor, Licensee hereby irrevocably conveys, transfers and assigns to Licensor all right, title and interest in and to such Work Product, including the right to receive all past, present and future proceeds and damages therefrom and waives any so-called “moral rights” and any other non-assignable rights with respect to such Work Product. Licensee shall have no right to use Work Product without the express, written consent of Licensor. Licensee agrees to execute assignments and any other instruments requested by Licensor to obtain, protect, enforce or defend the Work Product for Licensor’s benefit, all without additional compensation to Licensee from Licensor. Licensee appoints Licensor as Licensee’s agent and grants Licensor a power of attorney for the limited purpose of executing all such instruments and to do all other lawful acts that Licensor is entitled to require Licensee to do pursuant to this paragraph. The power of attorney granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of Licensor in connection with the transactions contemplated hereby and, as such, each is coupled with an interest and shall be irrevocable.
Licensee recognizes Licensor’s exclusive title in and to the Cumin IP and the validity thereof. Licensee shall not in any way, during or after the License Term , (a) dispute or impugn such title or the validity of the Cumin IP or any registrations therefor or the right of Licensor to use the Cumin IP, (b) file any applications for registration of the Cumin IP or any similar words in the United States Patent and Trademark Office, any state or foreign country, or adopt or use, without Licensor’s express prior written consent, any word or mark which is likely to be similar to or confused with the Cumin IP, or (c) otherwise do or permit to be done any act or thing which may in any way impair the right of Licensor in and to the Cumin IP or any applications or registrations therefor. Licensee shall obtain no right, title or interest in or to the Cumin IP, except as set forth herein. All uses of the Cumin IP by Licensee, and all goodwill associated therewith, shall inure to the benefit of Licensor and its successors and assigns. Nothing herein restricts Licensor’s right to sell, assign, or license the Cumin IP.
Licensor may, in its sole discretion, take whatever steps it deems appropriate with regard to the filing and prosecution of application(s) for registrations of the Cumin IP and maintenance of its registrations for the Cumin IP. Licensee agrees to cooperate with Licensor with respect to any such filings, prosecution, and maintenance of the Cumin IP.
Data. As between Licensee and Licensor, Licensor shall exclusively own all end customer data collected, accessed or processed in connection with Licensee’s License and use of the Services (“End Customer Data”). Licensee shall (a) maintain appropriate technical and organizational measures to protect any End Customer Data against unauthorized or unlawful use, disclosure, processing or alteration; (b) act in accordance with Licensor‘s policies, including Licensor’s Privacy Policy and, if applicable, Data Protection Addendum (DPA), in relation to the collection, use, disclosure and processing of any End Customer Data, but in all instances in accordance with all applicable laws, rules and regulations; and (c) transfer all End User Data (including any sales order information) to Licensor on a weekly basis via a CSV flat file.
Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users and such info is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Infringement.
Licensee agrees that it shall promptly notify Licensor in writing upon receipt by Licensee of notice or becoming aware of any conflicting uses of, or any applications or registrations for, any copyright, trademark, or service mark that conflicts with the Cumin IP or of any acts of infringement or unfair competition involving the Cumin IP; or upon receipt by Licensee of notice or becoming aware that the Cumin IP infringes or is alleged to infringe upon the trademark or service mark or other rights (including but not limited to rights relating to unfair competition) of any other entity.
Licensor shall have the right to deal with any infringement, unfair competition, or other action involving the Cumin IP as it deems appropriate, in its sole and absolute discretion (including the right to direct the conduct of any litigation). Licensor shall not be required to prosecute or defend any infringement, unfair competition, or any other action involving the Cumin IP, and Licensor shall have the right to settle or compromise such action without the consent of Licensee. If Licensor does not initiate appropriate action to abate the infringement within 60 days after it has received notice of any infringement from Licensee, Licensee may, at its own expense , pursue such action it deems appropriate. In the event Licensee pursues such action, Licensor agrees to join in and remain a party to such action provided Licensee pays Licensor’s legal fees and expenses as and when the same become due.
RULES OF CONDUCT.
Training.
During the License Term, subject to the other provisions of the Terms of Service (including the Terms of License) and as part of the consideration set forth in the License Fee provisions above, Licensor agrees to provide the following training services:
- Licensor’s Personnel will train Licensee’s Personnel and Licensee’s other staff members, on a regular basis according to Cumin Club Indian Kitchen Operator Manual;
- Licensor’s Personnel will train at least one of Licensee’s Personnel (the “Head Personnel”) in the according to Cumin Club Indian Kitchen Operator Manual, and the Head Personnel shall be responsible for hiring, firing, training and managing all of Licensee’s other employees and independent contractors; and
- Licensor’s Personnel will continue training the Head Personnel, on a regular basis according to Cumin Club Indian Kitchen Operator Manual.
Product Purchases.
In order to ensure quality control and timely delivery of certain products, Licensee has agreed to purchase certain spices, herbs, condiments, and other food products required for the preparation of Cumin Club Indian Kitchen menu items (the “Proprietary Products”) directly from Licensor and certain other food products (“Food Service Products”) from select food service providers. Licensee agrees that the Food Service Products shall be pre-approved by Licensor and failure of Licensee to obtain such pre-approval of the Food Service Products shall constitute a breach of these Terms of Service.
Licensor agrees to furnish Licensee with such access and login information as reasonably necessary to purchase the Proprietary Products through Licensor. As a condition to purchase, Licensee agrees that it will not reverse engineer, modify, or use the Proprietary Products for any use other than in connection with these Terms of Service.
Licensee agrees that Proprietary Products must and shall be purchased and paid in full by Licensee from Licensor at Licensee’s sole cost and expense according to pricing as outlined by Licensor, which shall be subject to change from time to time at the sole and absolute discretion of Licensor. Licensor agrees that upon purchase of Proprietary Products, the Proprietary Products shall be delivered to Licensee within six to eight business days from the date of order and shall have a shelf- stable life of six to eight months from date of delivery to Licensee.
Licensee purchase of Proprietary Products is nonrefundable, and Licensee will be responsible for the risk of loss from expiration. Licensor agrees to fulfill orders from Propriety Products and Food Service Products on a FIFO (First In, First Out) basis.
Promotions. Licensee shall, at the direction of the Licensor, use marketing materials, such as bag stuffers on orders, as supplied by Licensor to promote the Services and Cumin Club Indian Kitchen brand. From time to time Licensor may engage with Licensee or a third-party to promote the Services, Cumin Club Indian Kitchen Services, and Cumin Club Indian Kitchen brand (the “Promotions”). As a condition to Licensee’s License, Licensee agrees to participate in such Promotions as required by Licensor. Licensor agrees that at no time will Promotions exceed 10% of gross revenue in a month.
Performance Obligations. Licensee shall, in good faith and at its own expense: (a) perform all of its obligations, and otherwise conduct its business, consistent with good business practices and in a manner that reflects favorably at all times on the Licensor and the good name, goodwill, and reputation of Licensor and Cumin Club Indian Kitchen; (b) have sufficient knowledge of the industry and restaurants competitive with Cumin Club Indian Kitchen (c) comply with all applicable laws, rules and regulations, including, without limitation, any governmentally mandated compliance standards; and (d) maintain books, records and accounts of all transactions and activities covered by these Terms of Service (including the Terns of License) and permit full examination thereof by Licensor and its representatives in accordance with the inspection rights as set forth below.
Prohibited Acts. As a condition of use, Licensee agrees to not to use the Services for any purpose that is prohibited by these Terms of Service. Licensee is responsible for all of Licensee’s activity in connection with the Services and the License.
Licensee shall not (directly or indirectly): (a) take any action adverse to, or otherwise interfere with, Licensor’s ownership of Licensor’s Intellectual Property rights; (b) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Licensor or Cumin Club Indian Kitchen; (c) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments (i) actually, apparently, or ostensibly on behalf of Licensor, or (ii) to any customer regarding the Licensor or Cumin Club Indian Kitchen, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in any written documentation provided by Licensor to Licensee; (d) engage in any unfair, competitive, misleading, or deceptive practices with respect to the Licensor and Cumin Club Indian Kitchen; or (e) sell, either directly or indirectly, or assign or transfer, any Licensor Products or Proprietary Products.
Licensee shall not (directly or indirectly) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty; (ii) Licensee knows is false, misleading, untruthful or inaccurate; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Licensor in its sole discretion; (iv) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third-party; or (v) impersonates any person or entity, including any of our employees or representatives; or includes anyone’s identification documents or sensitive financial information.
Licensee shall not (directly or indirectly ):(i) take any action that imposes or may impose (as determined by Licensor in its sole discretion) an unreasonable or disproportionately large load on Licensor’s (or our third-party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures Licensor may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
Licensee shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. Licensee shall abide by all applicable local, state, national and international laws and regulations.
Licensor reserves the right to access, read, preserve, and disclose any information as Licensor reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of Licensor, our users and the public.
Inspection Rights.
Licensor has the right to send its personnel or their designee to the Licensee’s facilities to conduct on-site assessments or audits to ensure that the Licensee has appropriate food preparation operations and meets the operating standards outlined in Cumin Club Indian Kitchen Operator Manual for operation of Cumin Club Indian Kitchen Services. The Licensee must provide any supporting documents as requested by the Licensor inspector, so as to ensure the inspection is completed satisfactorily. Licensor commits to maintain confidentiality of any information that is obtained from the Licensee during the inspection process.
TERM AND TERMINATION.
The term of the Services shall commence as of the earlier of: (a) the date you register an Account or (b) the date you first begin using the Services and continue for a period of six months thereafter (the "Initial Term") unless sooner terminated as provided in these Terms of Service. Upon the expiration of the Initial Term and any Renewal Term (as defined herein), the term of Services shall automatically renew for additional one year periods (each, a "Renewal Term," and together with the Initial Term, the "Term"), unless either party delivers written notice of non-renewal to the other party at least 30 days' prior to the expiration of the Initial Term or the then-current Renewal Term.
Licensor shall have the right to terminate the Licensee’s Licensee and/or your Account upon notice to Licensee of breach of any provision of these Terms of Service (including the Terms of License), including as follows: (a) engaging in any acts or omissions that cause, or could in the reasonable discretion of Licensor cause reputational harm or damage to the goodwill and value of the Cumin IP; (b) failure to maintain compliance with all applicable laws; (c) failure to maintain appropriate insurance, as set forth below; (d) failure to comply with the payment requirements set forth in these Terms of Service; or (e) commission of a material breach of any other term herein. In the event that Licensor provides notice of termination of these Terms of Service due to a breach by Licensee, Licensee shall have 10 days to cure such breach before such termination becomes effective; provided, however, that Licensor is not obligated to provide such cure period if Licensor determines, in its sole discretion, that such cure would be impossible, or that continued use of the Cumin IP would cause irreparable harm to the Licensor or the Cumin IP under the circumstances
These Terms of Service (including the Terms of License) shall terminate automatically if: (a) Licensee ceases providing services in the Industry; (b) Licensee is dissolved or liquidates; (c) Licensee is sold to any third-party, or otherwise transfers any rights under these Terms of Service (including the Terms of License) without the express written consent of Licensor; (d) Licensee become insolvent or bankrupt, or bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors are instituted against Licensee and are not dismissed within 30 days after such institution or a decree or order for the appointment of a trustee or receiver for Licensee for the major part of its properties is entered and the trustee or receiver appointed pursuant to such decree or order is not discharged within 30 days after such appointment; (e) Licensee institutes bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such proceedings against it by others or to the entry of any decree or order adjudging Licensee bankrupt or insolvent or approve as filed any petition seeking reorganization under any bankruptcy or similar law or shall apply for or shall consent to the appointment of a receiver or trustee for any major part of its properties or Licensee shall make an assignment for the benefit of creditors; or (f) a court order or judgment is entered that prohibits Licensor, or any agent or affiliate of Licensor, from licensing the Cumin IP.
In the event of termination of these Terms of Service in accordance with the terms herein, then (a) the License shall immediately terminate; (b) Licensee shall thereupon cease to use and shall never again use the Cumin IP, or any derivative thereof; (c) Licensee shall deliver to Licensor all written or tangible forms of the Cumin IP then in its possession, or shall certify that all such materials have been destroyed; (d) Licensee shall never again disclose or distribute the content of the Cumin IP or create any content that is derivative of the Cumin IP; and (e) Licensee shall immediately pay Licensor any Licensee Fees and any other fees due and owing to Licensor.
Licensor may terminate Licensee’s access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with Licensee’s license pursuant to these Terms of Service. Any fees paid or hereunder or and Proprietary Products purchased by Licensee are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
When this agreement, regardless of the cause, the parties will continue in place any rights or obligations accrued, or existing on, the date of expiration or termination. The parties agree to continue to cooperate with each other to carry out an orderly termination. The expiration or termination of this agreement will not relieve Licensor of its obligation to fill any Proprietary Product orders submitted by Licensee to Licensor prior to the expiration or termination, and Licensee will be obligated to pay for such Products in accordance with the payment terms as set forth in these Terms of Service.
REVENUE REMITTANCE, FEES AND TAXES; AUDIT RIGHTS.
Payment of Fees.
Licensee will pay the License Fee from the Services as set forth in these Terms of Service. In the event payments are not received by Licensor when due, Licensor may terminate or suspend Licensee’s Account for all Services until payment has been made in full if Licensee fails to cure such nonpayment within 30 days after written notice of such nonpayment.
Taxes.
Licensee shall be responsible for payment of all sales, service, value-added, use, excise, consumption, and other taxes and duties assessed directly on the Proprietary Products and Food Service Products purchased, and Services performed in accordance with these Terms of Service, including Internet-based taxes and duties (“Licensee Taxes”). Licensee will inform Licensor of the sales tax treatment for all Licensee Taxes. Licensee hereby agrees to indemnify Licensor for any Licensee Taxes and related interest, costs and penalties paid or payable by Licensor. Licensee is not responsible for any taxes imposed on, or regarding, Licensor’s income, revenues, gross receipts, personnel, or real or personal property or other assets (“Licensor’s Taxes”). Licensor hereby agrees to indemnify Licensee for any of Licensor’s Taxes and related interest, costs and penalties paid or payable by Licensee.
Audit Rights.
On reasonable request (of at least 48 hours), during the Term and within one year thereafter, Licensor may audit Licensee’s files relating to its performance under these Terms of Service regarding transactions that took place since the last audit or beginning of the Term (if no audit has been conducted). Licensors may conduct any audit under this paragraph at any time during regular business hours but no more frequently than quarterly (except if it has been determined that Licensor has violated these Terms of Service.
ADDITIONAL LEGAL TERMS.
Warranty Disclaimer.
LICENSEE ACKNOWLEDGES AND AGREES THAT NOTHING IN THESE TERMS OF SERVICE OR AGREEMENT SHALL BE CONSTRUED AS CREATING A FIDUCIARY DUTY BY LICENSOR TO LICENSEE AND THAT LICENSOR HAS NO DUTY TO TAKE ANY ACTION REGARDING USER ACCESS TO THE SERVICES, THE CONTENT LICENSEE ACCESSES AND HOW LICENSEE MAY INTERPRET OR USE THE CONTENT.
THE SERVICES AND ALL OTHER PRODUCTS, INCLUDING PROPRIETARY PRODUCTS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE RESULTS OBTAINED FROM PERFORMANCE OF THE AGREEMENT OR USE OF SERVICES OR PRODUCTS PROVIDED BY LICENSOR, AND THE CONCLUSIONS, DECISIONS OR ACTIONS BASED ON SUCH USE, ARE IN THE SOLE CONTROL OF LICENSEE AND ARE THE SOLE RESPONSIBILITY OF LICENSEE.
WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PRODUCTS PROVIDED BY LICENSOR, WILL MEET LICENSEE’S BUSINESS REQUIREMENTS, THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE SERVICES (INCLUDING Cumin Club Indian Kitchen SERVICES) WILL BE FIT FOR LICENSEE’S PURPOSE, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE OR COMPLETE. ALL THIRD-PARTY MATERIALS AND SOFTWARE ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Licensor will not be responsible for, and Licensee shall hold Licensor harmless against: (a) the Content contained in or accessed through the Services; (b) the inability of Licensee to access or interact with any other service provider, including third-party service providers, through the Internet; (c) any loss of Content, End Customer Data or other security incident that occurs on any third-party platform or Services or as a result of any third-party products; (d) the inability of Licensee to access and/or use the Services as a result of Licensee’s failure to obtain and maintain all computer hardware, software and communications equipment needed to access the Services; or (e) any accuracy, copyright compliance, or legality of material or Content contained in or accessed through, or data derived from, the Services.
Insurance. During the Term and for a period of 36 months thereafter, Licensee shall, at its own expense, maintain, and carry in full force and effect commercial general liability (including product liability and contractual liability) insurance, specifically naming Licensor as an additional insured, in a sum no less than $5,000,000, statutory workers compensation insurance, and Employe’s Liability insurance with limits no less than $1,000,000 per occurance, all with an insurance company with an AM Best Rating of A- or better. On Licensor‘s request, Licensee shall provide Licensor with a certificate of insurance from Licensee‘s insurer evidencing the insurance coverage specified in this Paragraph. Licensee shall provide Licensor with 30 days' advance notice in the event of a cancellation or material change in its insurance policies. Except where prohibited by Law, Licensee shall require its insurer to waive all rights of subrogation against Licensor and its insurers.
Indemnification. Licensor shall indemnify, defend and hold Licensee harmless from and against any and all claims, judgments, liabilities, losses, damages, penalties, fines or costs (including reasonable attorneys’ fees and costs), which arise from or are related to any alleged or actual violation or infringement of any intellectual property rights of any third-party caused by use of the Cumin IP, except to the extent that any such claim, judgment, liability, loss, damage, penalty, fine or cost is caused, in whole or in part, by Licensee’s breach or violation of these Terms of Service.
Licensee will defend, indemnify and hold harmless Licensor and its divisions, subsidiaries, directors, employees, agents, distributors, dealers, customers or representatives (the “Licensor Indemnified Parties”) from and against all actions, proceedings, claims, demands, suits, losses, damages and expenses, including reasonable attorneys’ fees and costs, which arise from or are related to: (i) Licensee’s use or misuse of, or access to, the Services (including any Content); (ii) Licensee’s violation of these Terms of Service (including any of the Terms of License); (iii) Licensee’s negligence, breach of representation, or other default on the part of Licensee in connection with Licensee’s License and use of the Services; or (iv) an alleged infringement by any of Licensee’s assets or processes, or any, or any component thereof, of any copyright or patent or other intellectual property rights of any third-party.
Limitation of Liability.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE ACTION(S) GIVING RISE TO SUCH LIABILITY.
IN NO EVENT WILL LICENSOR NOR LICENSOR’S DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY: (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (C) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION; (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; OR (E) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (II) $500.00.
THIS PARAGRAPH SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED DIRECT OR THIRD PARTY CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF.
Confidentiality.
Confidential Information means any and all information of or relating to a Party (such Party, the “Disclosing Party”), the Disclosing Party’s affiliates, customers, or suppliers that is not available to the public, including, without limitation financial and other information, formulas, ideas, concepts, inventions, processes, prototypes, flavors, menus, sources of ingredients, future plans, data, process layouts, studies, forecasts, compilations, reports, interpretations, records, statements, documents and notes (whether oral, written or electronic) technology and nonpublic methodology underlying the Services of or related to the Disclosing Party, its affiliates, its assets, businesses, or operations, each of its affiliates, or any of each of its assets, businesses or operations (collectively, the "Items") obtained, directly or indirectly, whether in the past of in the future, by the other Party (such Party, the “Receiving Party”), or any of the Receiving Party’s directors, managers, officers, employees, agents, representatives or advisors (each a “Representative”). The Receiving Party shall agree to hold the Confidential Information in confidence, not disclose, orally or in writing, directly or indirectly, any Confidential Information to any person (except as provided below) and use the Confidential Information only as required to perform its obligations hereunder. Without limiting the generality of the foregoing, the Receiving Party agrees as follows:
- The Confidential Information will be disclosed only to those Representatives of the Receiving Party who need access to the Confidential Information to enable the Receiving Party to use the Confidential Information to perform its obligations hereunder; and
- The Receiving Party shall, at the Disclosing Party’s written request, return to the Disclosing Party or destroy all copies of documents within its possession or control containing any Confidential Information, and certify in writing that all such Confidential Information was returned or destroyed, as applicable. Destruction shall include the deletion of all readily accessible electronic Confidential Information.
- All Representatives of the Receiving Party shall be subject to all the obligations set forth in this paragraph and the Receiving Party shall be responsible and liable for any breach by any such person of any of the obligations set forth in this paragraph.
Nothing herein shall be construed as granting any right, title, grant, option, ownership, interest in or license from the Disclosing Party to the Receiving Party relating to any Confidential Information, including, without limitation, any patents, copyrights, trademarks, trade secrets or any other intellectual property. All proprietary rights (including, without limitation, all rights related to patents, copyrights, trademarks or trade secrets) in and to any Confidential Information shall remain the property of the Disclosing Party.
Each Party acknowledges that the foregoing obligations of confidentiality and non-use shall not apply to information disclosed, conveyed to or obtained by the Receiving Party regarding the Disclosing Party which: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (ii) was within the Receiving Party’s possession prior to its being furnished by the Disclosing Party, provided that the source of such information was not known by Receiving Party to be bound by a confidentiality agreement or non-disclosure restrictions with respect to such information; (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement or non-disclosure restrictions with respect to such information; or (iv) is independently developed by the Receiving Party. With respect to disclosures of the Confidential Information as may be required by law or court order, such disclosures shall be permitted without the consent of the Disclosing Party provided that the Receiving Party furnishes the Disclosing Party prior written notification (as soon as practicably possible after the request for disclosure is made and solely to the extent allowed by applicable law).
Licensee agrees that upon termination of the License, all Licensor’s Confidential Information will be destroyed.
Privacy Policy. By using the Site and/or the Services, you are agreeing to be bound by these Terms of Service and our privacy policy (the “Privacy Policy”). If you do not agree to be bound by these Terms of Service and the Privacy Policy, please do not use the Site or the Services. If you violate any of these terms, we reserve the right to cancel your Account or block access to your Account without notice.
Governing Law and Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of the State of Illinois, including its conflicts of law rules, and the United States of America. Subject to the Arbitration Section above, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Cook County, Illinois.
Feedback. Licensor welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing us at hello@thecuminbowl.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of us and you hereby irrevocably assign to us and agree to irrevocably assign to us all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as Licensor may reasonably request to assist us to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Entire Agreement and Severability. These Terms of Service (including the Terms of License) are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. 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
Force Majeure. Licensor shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. Licensor may assign, transfer or delegate any of our rights and obligations hereunder without consent.
Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that Licensor will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, Licensor must provide you with written notice of such waiver through one of our authorized representatives.
Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
Contact. All feedback, comments, requests for technical support and other communications relating to the Services should be directed to hello@thecuminbowl.com. Mailings may be sent to us at the following address: 222 W. Merchandise Mart Plaza, Suite 1212 Chicago, IL 60654.
TERMS FROM THIRD PARTIES.
Third Party Services. The Services may permit Licensee to engage with first- and third-party service providers and applications, link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When Licensee accesses third-party resources on the Internet, Licensee does so at Licensee’s own risk. These other resources are not under Licensor’s control, and Licensee acknowledges that Licensor is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources or fees arising from such use. The inclusion of any such link does not imply Licensor’s endorsement or any association between Licensor and their operators. Licensee acknowledges and agrees that Licensor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. Licensee further acknowledges that any engagement or use of a first- or third-party service provider or application used in accordance with, or in furtherance of, these Terms of Service may obligate Licensee to pay fees associated with use of such first or third-party. Licensee agrees that all such fees are at the sole expense and responsibility of the Licensee.
ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS (THE “ARBITRATION SECTION”)
ARBITRATION; CLASS ACTION WAIVER. LICENSEE AGREES THAT ALL DISPUTES BETWEEN LICENSEE AND LICENSOR OR OUR OFFICERS, DIRECTORS OR EMPLOYEES IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO LICENSEE’S RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, LICENSEE’S USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF TCC BRANDS, INC. THEN IN EFFECT, AND LICENSEE AND LICENSOR HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT LICENSEE HAS IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, LICENSOR MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF ILLINOIS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT LICENSEE AND LICENSOR WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. AS AN ALTERNATIVE, LICENSEE MAY BRING LICENSEE’S CLAIM IN LICENSEE’S LOCAL “SMALL CLAIMS” COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT'S RULES AND IF WITHIN SUCH COURT’S JURISDICTION, UNLESS SUCH ACTION IS TRANSFERRED, REMOVED OR APPEALED TO A DIFFERENT COURT. LICENSEE MAY BRING CLAIMS ONLY ON LICENSEE’S OWN BEHALF. NEITHER LICENSEE NOR LICENSOR WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. LICENSEE IS GIVING UP LICENSEE’S RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM LICENSEE MAY HAVE AGAINST LICENSOR INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
Licensee also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Licensor is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event TCC Brands Inc. is unwilling or unable to set a hearing date within 160 days of filing the case, then either Licensee or Licensor can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. The arbitration shall be conducted in the English language. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. Licensee agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Service must be filed within one year after such claim of action arose or be forever banned.
30-Day Opt-Out Period. If Licensee does not wish to be bound by the arbitration and class-action waiver provisions in this Arbitration Section, Licensee must notify Licensor in writing within 30 days of the date that Licensee first accepts these Terms (unless a longer period is required by applicable law). Licensee’s written notification must be mailed to Licensor at the following address: 222 W Merchandise Mart Plaza, Suite 1212 Chicago, IL 60654. If you do not notify us in accordance with this Arbitration Section, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (i) Licensee’s name; (ii) Licensee’s mailing address and (iv) a statement that Licensee does not wish to resolve disputes with Licensor through arbitration. If Licensor make any changes to the Arbitration Section of these Terms (other than a change to the address at which Licensor will receive notices of dispute, opt-out notices, or rejections of future changes to the Arbitration Section), Licensor may reject any such change by sending Licensor written notice within 30 days of the change to the address set forth in this Arbitration Section. It is not necessary to send us a rejection of a future change to the Arbitration and Class Action Waiver section of these Terms if Licensee had properly opted out of the arbitration and class-action waiver provisions in this Arbitration Section within the first 30 days after Licensee first accepted these Terms. If Licensee has not properly opted out of the arbitration and class-action waiver provisions in this Arbitration Section, by rejecting a future change, Licensee is agreeing that Licensee will arbitrate any dispute between Licensor in accordance with the language of this arbitration provision, as modified by any changes Licensor did not reject. This notification affects these Terms only; if Licensee previously entered into other arbitration agreements with Licensor or enter into other such agreements in the future, Licensee’s notification that Licensee is opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between Licensee and Licensor.
Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Licensor.