FRANCHISEE EQUIPMENT PLACEMENT AND SUPPLY AGREEMENT
THIS FRANCHISEE EQUIPMENT PLACEMENT AND SUPPLY AGREEMENT (“Agreement”) is effective as of the Initial Order effective date (the “Effective Date”) by and between Botrista Technology, Inc., a Delaware corporation (“Botrista”), and the franchisee identified in the Initial Order (“Franchisee”) (collectively, the “Parties” and each, a “Party”).
WHEREAS, Franchisee, directly or through its Affiliates, has licensed the Company’s trademarks and offerings through a franchise business model to sell the Company’s offerings at Franchisee Restaurants;
WHEREAS, Botrista offers one or more sophisticated equipment offerings for making craft beverages from ingredients supplied by Botrista or its designee; and
WHEREAS, Company and Botrista have entered into a master equipment and supply agreement (“Company Agreement”), whereby Botrista has agreed to lend its equipment and sell its ingredients to Franchisee and its restaurants subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the opportunity to use Botrista’s equipment, in recognition of Botrista’s reliance hereon, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1.1 “Accessories” means any products offered for sale by Botrista to Franchisee for use in connection with the Equipment other than Consumables, which may include drink cups, cup sealing machines, and straws.
1.2 “Affiliate” of an entity means any entity that controls, is controlled by or is under common control with such entity, where “control” and its cognates means beneficial ownership (direct or indirect) of at least fifty percent (50%) of the shares of such entity entitled to vote in the election of directors (or in the case of an entity that is not a corporation, for the election of the corresponding managing authority) or the ability to consolidate such company’s financial statements with those of such entity in accordance with generally accepted accounting principles.
1.3 “Botrista Consumables” means Consumables purchased from Botrista, its Affiliates or their designated suppliers, including the Consumables identified in the Initial Order attached hereto
1.4 “Botrista IP” means the Equipment, the Equipment Guidelines, the Software, the Usage Data, the Botrista Marks, the Accessories, Botrista Consumables, the Products and any other information, reports, program or marketing materials provided by or on behalf of Botrista or its Affiliates and any and all Intellectual Property Rights in or to any of the foregoing.
1.5 “Botrista Marks” means Botrista’s trademarks, trade names, trade dress, trade design, service marks, logos, branding, color schemes, slogans and other marks and all goodwill associated therewith
1.6 “Company” means the company / franchisor identified in the Initial Order.
1.7 “Consumables” means any ingredients for Crafting Craft Beverages, including powders, syrups, grounds (e.g., coffee), herbs (e.g., tea), concentrates, cups, Bag-in-box, pods, alcohol (including spirits, liqueurs, fortified wines and other fermented beverages) and all other beverage bases from which beverages can be made, are deemed to be included in this definition.
1.8 “Craft” and its cognates means to craft, dispense, mix, produce or otherwise make.
1.9 “Craft Beverages” means all craft beverages (e.g., any beverage that requires Crafting), whether or not such beverages (i) contain nutritive, food, or dairy ingredients, or (ii) are in a frozen form. This definition applies without regard to the beverage’s labeling or marketing. For the avoidance of doubt, “flavor enhancers,” “liquid water enhancers,” and non-alcoholic beverages sold as “shots” or “supplements” are considered Craft Beverages. “Craft Beverage(s)” will not include fresh-brewed coffee from coffee grounds, fresh-brewed tea products from tea leaves, branded soda drinks (e.g., Coca-Cola and Pepsi), unflavored dairy products, water drawn from the public water supply, or unbranded juice squeezed fresh at the Franchisee Restaurant.
1.10 “Equipment” means equipment or automated machines provided by Botrista.
1.11 “Equipment Cap” means the maximum amount of Equipment that Botrista will lease to and place, collectively, at Franchisee Restaurant, Company’s restaurants, and Company’s other franchisees’ restaurants, as set by Botrista and Company from time to time.
1.12 “Equipment Guidelines” means the instructions, guidelines, manuals and other information or materials made available or provided by Botrista (in each case, as may be amended from time to time) that pertain to the operation, maintenance, cleaning, sanitizing, handling, storage, refilling or use of the Equipment or Consumables, including the Equipment Usage Guidelines located at https://drinkbot.freshdesk.com/support/solutions, all personnel training manuals and materials, and any of the foregoing related to Crafting Craft Beverages.
1.13 “Franchisee Party(ies)” means Franchisee’s personnel, each Franchisee Restaurant and each Franchisee Restaurant’s personnel.
1.14 “Franchisee Restaurant” means each restaurant owned or operated by or on behalf of Franchisee within the Territory, including all currently existing and future buildings and all grounds, vending and concession areas, sidelines, benches and locker rooms, branded and unbranded food service outlets, and dining facilities.
1.15 “Intellectual Property Rights” means registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
1.16 “Initial Order” means that initial order for Equipment that is executed by Botrista and the Franchisee.
1.17 “Law(s)” means all federal, state and local laws, regulations, guidelines, orders, ordinances, and standards, applicable to such Party in its performance of its obligations under this Agreement, including all federal, state and local food safety regulations, guidelines, rules, codes, orders, standards and current good manufacturing practices (including any of the foregoing set, promulgated or published by the U.S. Food and Drug Administration, any other federal, state or local agency or any foreign equivalent of any of the foregoing).
1.18 “Order” means an order for Consumables or Accessories.
1.19 “Person” means any individual, corporation, limited liability Franchisee, partnership, joint venture, trust, business, association or other entity.
1.20 “Products” means Craft Beverages Crafted (in whole or in part) through or by the Equipment
1.21 “Regular Business Hours” means Monday through Friday, 8:00 AM to 5:00 PM Pacific Standard Time.
1.22 “Software” means any and all: (i) computer programs, applications, systems (including point of sale systems and applications), application programming interfaces and other software, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or any other form; (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (iii) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing; (iv) screens, user interfaces, user experiences, report formats, firmware, development tools, templates, menus, buttons and icons; (v) documentation, including user manuals and other training documentation, relating to any of the foregoing; and (vi) all Intellectual Property Rights in and to any of the foregoing, in each case (i) through (vi), embedded in, incorporated into, on or provided with the Equipment.
1.23 “Territory” means the United States of America.
1.24 “Third-Party Consumables” means any Consumables not provided by or on behalf of Botrista or its Affiliates or their designees.
2.1 Leasing of Equipment. Subject to the Equipment Cap, Section 2.2, and Franchisee’s and each Franchisee Restaurant’s compliance with the terms and conditions of this Agreement, Botrista will lease Equipment during the Term to each Franchisee Restaurant consistent with the leasing fees set forth on Initial Order or as otherwise negotiated between Company and Botrista (such fees subject to Company’s pricing and placement milestones under the Company Agreement).
2.2 Restaurants and Installation. Prior to Botrista placing the Equipment at a Franchisee Restaurant, Franchisee will (and represents and warrants that it has the legal right, power and authority to) cause each Franchisee Restaurant to be bound by the terms and conditions of this Agreement. Each Franchisee Restaurant must schedule with Botrista or its designee: (a) a site survey of the Franchisee Restaurant’s premises or facilities before Botrista installs the Equipment at such premises or facilities; and (b) an annual site survey within thirty (30) days of each anniversary of the Effective Date (“Survey(s)”), unless Botrista waives the Survey. Botrista or its designee will have the sole right to install and set up the Equipment at each Franchisee Restaurant and may refuse to install the Equipment at a Franchisee Restaurant, in its sole discretion, for any or no reason. Prior to the installation of the Equipment at the Franchisee Restaurant, Botrista will invoice Franchisee for all Survey and delivery fees (including, without limitation, the fees set forth in the Initial Order or as otherwise negotiated between Company and Botrista) (“Installation Statement”). All amounts set forth on the Installation Statement are due and payable by Franchisee immediately upon the issuance of the Installation Statement. Upon Franchisee’s payment of all amounts set forth on the Installation Statement, Botrista or its designee will schedule a day and time to install the Equipment at the Franchisee Restaurant. Franchisee hereby grants (and will cause each Franchisee Restaurant to grant) Botrista and its designees the unrestricted right to enter and access each Franchisee Restaurant’s premises or facilities during Regular Business Hours to perform the Surveys and install and set up the Equipment, and Franchisee and each Franchisee Restaurant will cooperate with and provide reasonable assistance to Botrista and its designee during their performance of the Surveys or installation and set up of the Equipment.
2.3 Restaurant Supplies. Other than the Equipment and Consumables provided by Botrista, Franchisee and each Franchisee Restaurant will provide all other necessary utilities (water, electricity, Wi-Fi, drain, etc.), equipment, supplies, materials and personnel at each Franchisee Restaurant at their own expense.
2.4 Title. Botrista retains all rights, title and interest in and to the Equipment, and each Franchisee Restaurant will hold the Equipment as bailees thereof. In the event of any theft or loss of, or damage (including any damage caused by Franchisee or a Franchisee Party’s failure to comply with the Equipment Guidelines) to, any Equipment placed at a Franchisee Restaurant, Franchisee will pay Botrista, calculated as of the date such Equipment is stolen, lost, damaged or repaired: (i) the full retail value of such Equipment that is lost or stolen or cannot be reasonably repaired (in Botrista’s sole discretion); or (ii) for all costs, expenses and fees arising from or related to the repair of Equipment that can be reasonably repaired.
Exclusivity. In consideration of the prices and other items offered by Botrista under this Agreement, Franchisee hereby grants to Botrista the exclusive right to sell, distribute or otherwise provide equipment, machines and other electronic devices for the Crafting of all Craft Beverages at all Franchisee Restaurants. Franchisee will (and will cause each Franchisee Party to) exclusively purchase all Consumables made available by Botrista or its designated suppliers for all non-hand Craft Beverages directly from Botrista or its designated suppliers. Franchisee will not (and will cause each Franchisee Party to not) use or allow to be used any machines or other electronic devices for Crafting Craft Beverages at any Franchisee Restaurants other than the Equipment. For clarity, the foregoing restrictions do not prohibit Franchisee or a Franchisee Party from Crafting Craft Beverages by hand. In addition, if the Initial Order indicates that Franchisee is participating in Botrista’s Beverage Accessory Program, Franchisee further agrees that it will (and will cause each Franchisee Party to) exclusively purchase its requirements of any such Accessories for use with the Products from Botrista.
Consideration and Orders.
4.1 Pricing. Consumables, Accessories, the Equipment, and all other products, ingredients, items, materials, and services will be made available for purchase by Franchisee and Franchisee Restaurants by Botrista in accordance with the price schedule set forth in the Initial Order or as otherwise negotiated between Company and Botrista. Botrista may modify pricing from time to time upon providing fifteen (15) days’ prior written notice (email will suffice) to Franchisee. In addition, Botrista may increase prices at the beginning of each calendar year by up to five percent (5%) over the then-current pricing; provided that in the event of an increase in a component of Botrista’s cost of goods, manufacture, or delivery, or increase in taxes, deposits and other government related fees, Botrista may increase prices in excess of five percent (5%) to cover such increased costs or fees.
4.2 Ordering. Orders will be placed electronically through the Equipment user interface or the distribution channel designated by Botrista, unless the Parties mutually agree to other written or electronic means. Franchisee will not contest the authority of any Franchisee Restaurant staff member to place Orders through the Equipment. Each Order is final and binding on Customer upon placing the Order and Customer may not cancel or reschedule any Order without Botrista’s prior written consent. Botrista’s acceptance of an Order will be deemed to have occurred only when Botrista issues an invoice corresponding to such Order. The terms and conditions of this Agreement with respect to the subject matter hereof, will prevail notwithstanding any different or additional terms and conditions of any Order, purchase order or other form for purchase or payment submitted by Franchisee or Franchisee Restaurant to Botrista, all of which are hereby rejected. Delivery dates provided with or on an Order are only estimates and Botrista’s acceptance of an Order does not constitute a guarantee by Botrista that the applicable Consumables or Accessories will be delivered in full by the stated delivery dates. Franchisee may cancel or request to reschedule any Order by providing written notice to Botrista prior to shipment thereof. All shipped Orders are final, and no Consumables or Accessories can be returned. Unless otherwise agreed to by Botrista, all Consumables and Accessories will be delivered Ex Works (Incoterms 2020) Botrista’s facility, whereupon title and risk of loss of all Consumables and Accessories passes to Franchisee. All prices are exclusive of shipping costs and applicable taxes, which will be added to each Order and be payable by Franchisee. For the avoidance of doubt, all Orders placed by a Franchisee Restaurant will be deemed to have been placed pursuant to this Agreement and Franchisee will be liable for such Orders.
4.3 Other Fees. Franchisee will pay Botrista such other fees as set forth in the Initial Order or as otherwise negotiated between Company and Botrista.
4.4 Invoicing and Payment. Unless otherwise specified in the Initial Order, Franchisee will pay Botrista all costs, fees, expenses, and other charges: (a) specified in each Order; or (b) specified in any invoice for delivery, installation, set up, repair, and maintenance, in each case (a) through (b), within thirty (30) days of the date of the invoice issued by Botrista. Unless otherwise specified in the Initial Order, Botrista will invoice Franchisee for all lease fees and software service, marketing, or other recurring fees by the last day of each calendar month; and all amounts set forth on such invoice are due and payable by Franchisee immediately upon the issuance of such invoice. Botrista reserves the right to charge interest on overdue payments, which will accrue solely at Botrista’s discretion on any late payments at the rate of one and one-half percent (1.5%) per month.
5.1 Business Plan. Franchisee will comply with the instructions provided by Company or Botrista with respect to the Franchisee’s roll out of the Consumables, Products, and Equipment and promotion of the Consumables and Products, including any schedule and plan for such roll out and promotion. Franchisee and each Franchisee Restaurant will participate in advertising campaigns for the Products as directed by Botrista.
5.2 Promotions at Restaurants. Franchisee and each Franchisee Restaurant will position digital and print signage for the Products provided by Botrista pursuant to Botrista’s instructions, and in any event at all times in such a manner that the advertising message for the advertising campaign as directed by Botrista is in no way obscured (electronically or otherwise) and is clearly visible to the general public and media. Franchisee and each Franchisee Restaurant will, at all times, prominently list the Products on any and all menu, menu boards, and other customer materials located or provided at the Franchisee Restaurants and all Equipment will be prominently identified with the appropriate Botrista Marks.
5.3 Machine Usage Data. Botrista will provide insights to seasonal beverage trends and menu suggestions on an ongoing basis, as determined by Botrista, during the Term. Franchisee acknowledges that the Equipment will automatically collect and send to Botrista usage and other information, including drink Crafting history/timestamps, operator interactions with user interface, user experience, cleaning and sanitizing history, and machine telemetry (all such information, “Usage Data”). Franchisee acknowledges and agrees that Botrista may use the Usage Data to operate, improve and support the Equipment, user interface and user experience, analyze the usage of the Equipment and compliance with the Equipment Guidelines, develop new products, ingredients and services, provide training or develop and publish benchmarks and similar informational reports or for any other lawful purpose. Botrista may transmit the Usage Data for the foregoing purposes to Botrista’s Affiliates and other third parties, including to Botrista’s suppliers, service providers, consultants, contractors, manufacturers and distributors. Botrista may publish or otherwise disclose Usage Data in any manner that does not identify Franchisee or a Franchisee Restaurant.
5.4 Equipment Operations and Training. Franchisee will (and will cause all Franchisee Parties to) follow the Equipment Guidelines. Botrista will certify assigned Franchisee personnel in a train-the-trainer program, whereby Franchisee will have the ability to assign operations and training leadership teams to be able to manage basic operations and troubleshooting of the Equipment. For clarity, Franchisee is responsible for training and will train its personnel how to operate, maintain, clean, sanitize, refill and otherwise use the Equipment based on and in accordance with all Laws and the Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws). Franchisee will (and will cause all Franchisee Parties to) only permit trained personnel to operate, maintain, clean, sanitize, refill and otherwise use the Equipment.
5.5 Relocating the Equipment. Franchisee will not (and will cause each Franchisee Party to not) relocate the Equipment without the written authorization of Botrista. Franchisee will pay Botrista all costs, expenses and fees (including attorneys’ fees and shipping, repair and replacement costs) incurred by Botrista arising from or related to any such unauthorized relocation.
5.6 Maintenance and Repair.
5.6.1 Botrista may provide limited support services in the United States of America during Regular Business Hours via the phone or email provided with or on the Equipment, or Franchisee Parties may submit support tickets through the Equipment. FRANCHISEE HEREBY GRANTS (AND HAS CAUSED EACH FRANCHISEE RESTAURANT TO GRANT TO) BOTRISTA AND ITS SERVICE PROVIDERS AND DESIGNEES THE UNRESTRICTED RIGHT TO REMOTELY ACCESS THE EQUIPMENT (OR TO THE EXTENT BOTRISTA OR ITS SERVICE PROVIDERS OR DESIGNEES REQUIRE ACCESS TO A FRANCHISEE RESTAURANT’S PREMISES OR FACILITIES AND UPON REASONABLE NOTICE TO THE FRANCHISEE RESTAURANT, THE UNRESTRICTED RIGHT TO ENTER AND ACCESS THE PREMISES AND FACILITIES) TO UPDATE THE EQUIPMENT OR SOFTWARE.
5.6.2 Botrista will provide repair services for the Equipment for the entire Term (“Repair Period”). Franchisee agrees that all repairs will be performed only by Botrista or by service providers authorized by Botrista. During the Repair Period, in the event that the Equipment is unable to produce Products due to a defect in the Equipment that renders it inoperable (each, a “Defect”), Franchisee or the applicable Franchisee Restaurant will submit a ticket for such Defect to Botrista through the Equipment (“Defect Notice”). After receiving the Defect Notice, Botrista may require the applicable Franchisee Party to, and such Franchisee Party will, take certain actions to resolve the Defect before Botrista sends its personnel, service provider or designee to resolve the Defect at the Franchisee Restaurant’s premises or facilities. If Botrista determines, in its sole discretion if Botrista determines that the Defect requires Botrista’s or its service provider’s designee’s assistance to resolve the Defect, Botrista or its designee will use commercially reasonable efforts to resolve such Defect within a target time of seven (7) business days.
5.6.3 Notwithstanding anything to the contrary, Botrista has no obligation, and Franchisee will be solely liable for all support, maintenance and repair costs, expenses and services, with respect to any Defect, loss or damage to the Equipment arising from or in connection with: (i) human error, negligence or willful misconduct (including damages arising from disassembly of the Equipment by any Person other than those authorized by Botrista; failure to operate, maintain, clean, sanitize, handle, store, refill and otherwise use the Equipment pursuant to the Equipment Guidelines; subjecting the Equipment to falls, bumps or water damage; or operating the Equipment under inappropriate conditions, such as high humidity or temperature); (ii) unauthorized disassembly, repair, augmentation, or modification to the Equipment (including to any Software thereof); or (iii) failure to comply with or adhere to the Equipment Guidelines or any other maintenance procedures, guidelines or instructions.
5.7 Cleaning and Sanitizing Equipment. Customer hereby represents that it understands the risks described in Exhibit A and irrevocably and unconditionally agrees to all the terms and conditions set forth in Exhibit A.
5.8 Authorization Limitations and Restrictions. Whether directly or indirectly, Franchisee will (and will cause each Franchisee Party to) not, and will not permit any other Person to, access, use, clean, sanitize, or repair the Equipment except as expressly permitted by this Agreement. Franchisee covenants (and will cause each Franchisee Party) to use the Equipment strictly for the purpose of preparing Products pursuant to the Equipment Guidelines. For purposes of clarity and without limiting the generality of the foregoing, Franchisee will (and will cause each Franchisee Party to) not attempt to (i) copy, modify, reverse engineer, repair, replace, make available, encumber, rent, lease or sublease, assign, disassemble, decompile, decode, gain unauthorized access to, or create derivative works or improvements of the Botrista IP; (ii) damage, destroy, disrupt, disable, impair, interfere or tamper with or otherwise impede or harm in any manner the Equipment or Software or bypass or breach any security measures provided with or on the Equipment or Software; (iii) remove, delete, alter, obstruct or obscure any printed or on screen notices, serial numbers, tags, markings, warnings, trademarks, warranties or disclaimers on, from or provided with any Botrista IP; or (iv) access, disclose or use the Botrista IP in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any Laws.
5.9 Reservation of Rights and Botrista Marks. As between Botrista, the Franchisee and any the Franchisee Restaurants, Botrista owns all right, title, and interest in and to the Botrista IP. Other than the right to use the Equipment, the Software, Botrista Consumables, the Botrista Marks, and Accessories for the promotion, production and sale of Products during the Term as contemplated hereunder, all rights in and to the Botrista IP not expressly granted to Franchisee in this Agreement are reserved by Botrista and nothing herein grants any license, title, interest or other right in or to any Botrista IP, whether expressly, by implication, estoppel or otherwise. Franchisee will not (and Franchisee will cause each Franchisee Party to not) take or encourage any action during or after the Term that will in any way impair the rights of Botrista in and to the Botrista Marks or the goodwill inherent therein. Franchisee’s and each Franchisee Party’s use of the Botrista Marks and all goodwill therein inures solely to the benefit of Botrista. Franchisee will (and Franchisee will cause each Franchisee Party Franchisee Party to) ensure that the nature and quality of all services rendered by Franchisee or a Franchisee Party in connection with the Botrista Marks, and all advertising, promotional or other uses of the Botrista Marks will at all times: (i) conform to the quality standards and brand identity guidelines and style sheets specified by Botrista from time to time; and (ii) be in full compliance with all Laws. Botrista has the right, at all reasonable times, to inspect the manner in which Franchisee or a Franchisee Party uses the Botrista Marks and the quality of any goods and services associated therewith. Such inspection may, at the election of Botrista, be by personal visit to Franchisee or a Franchisee Restaurant or by written request for information or samples. Franchisee will (and Franchisee will cause each Franchisee Party to) cooperate with such inspections.
5.10 Feedback. Franchisee may (but is not obligated to) provide Botrista with suggestions, ideas, enhancement requests, or other feedback (“Feedback”). If Franchisee provides any such Feedback to Botrista, Franchisee hereby grants Botrista a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and otherwise practice such Feedback without restriction.
Term and Termination.
6.1 Term. The initial term of this Agreement will begin on the Effective Date and will continue for a period of five (5) years (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional two (2) year periods (each, a “Renewal Term”, and together, with the Initial Term, the “Term”), unless either Party provides a written notice of termination to the other Party at least thirty (30) days prior to the expiration of the then-current Term. Notwithstanding the foregoing, this Agreement will automatically terminate on the date the Company Agreement terminates.
6.2 Termination Rights and Suspension. Notwithstanding anything to the contrary in this Agreement: (i) either Party may terminate this Agreement if the other Party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty (30) days after written notice describing the breach; (ii) Franchisee may terminate the Initial Order and this Agreement without cause as set forth in the Initial Order, provided that Franchisee pays Botrista all restocking, de-installation, disassembly, delivery, and other costs, fees, and expenses for such termination as set forth in the Initial Order and all outstanding costs, fees, and expenses under this Agreement, in each case, prior to such termination; and (iii) either Party may terminate this Agreement if the other Party becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within sixty (60) days after filing. Such termination rights will be in addition to any other remedies the Parties may have available to them at law or in equity. No termination or expiration of this Agreement will derogate from any liabilities accrued hereunder prior to such termination or expiration. BOTRISTA MAY IMMEDIATELY DISABLE OR SUSPEND FRANCHISEE’S AND ANY OR ALL OF THE FRANCHISEE RESTAURANTS’ ACCESS TO OR USE OF THE EQUIPMENT OR SOFTWARE IF: (A) FRANCHISEE OR ANY FRANCHISEE RESTAURANT BREACHES THIS AGREEMENT; OR (B) FRANCHISEE FAILS TO PAY ANY AMOUNTS DUE TO BOTRISTA UNDER THIS AGREEMENT AND FAILS TO CURE SUCH FAILURE WITHIN TEN (10) DAYS AFTER BOTRISTA NOTIFIES (EMAIL WILL SUFFICE) FRANCHISEE OF SUCH FAILURE; AND IN EACH CASE, FRANCHISEE HEREBY GRANTS (AND HAS CAUSED EACH FRANCHISEE RESTAURANT TO GRANT TO) BOTRISTA AND ITS SERVICE PROVIDERS AND DESIGNEES THE UNRESTRICTED RIGHT TO REMOTELY DISABLE OR SUSPEND FRANCHISEE’S AND ANY OR ALL OF THE FRANCHISEE RESTAURANTS’ ACCESS TO OR USE OF THE EQUIPMENT OR SOFTWARE, OR TO THE EXTENT BOTRISTA OR ITS SERVICE PROVIDERS OR DESIGNEES REQUIRE ACCESS TO ANY FRANCHISEE RESTAURANT’S PREMISES OR FACILITIES, THE UNRESTRICTED RIGHT TO ENTER AND ACCESS SUCH FRANCHISEE RESTAURANT’S PREMISES AND FACILITIES TO DISABLE OR SUSPEND ACCESS TO THE EQUIPMENT OR SOFTWARE.
6.3 Effect of Termination. Upon termination of this Agreement:
6.3.1 Franchisee, at its own cost and expense, will either: (i) immediately surrender and deliver the Equipment, and direct the Franchisee Restaurants to properly package and ship the Equipment Delivered Duty Paid (Incoterms 2020), to Botrista at the location designated by Botrista and in good condition and working order (ordinary wear and tear excepted) as it was at the time of installation of the Equipment; or (ii) upon Botrista’s request, grant (and Franchisee hereby does grant and has caused each Franchisee Restaurant and all others, including any and all landlords or lessors, to grant to) Botrista and its designees the unrestricted right to enter and access Franchisee’s, each Franchisee Restaurant’s and any and all other premises or facilities where the Equipment is located or held, during Regular Business Hours, to reclaim and repossess the Equipment, and Franchisee and each Franchisee Restaurant will cooperate with Botrista’s and its designee’s reclamation and repossession of such Equipment. Risk of loss passes to Botrista upon delivery of the Equipment at the location designed by Botrista or upon Botrista’s or its designee’s reclamation and repossession of the Equipment (provided that Franchisee will remain liable for any damage to the Equipment caused by Franchisee). Franchisee will promptly reimburse Botrista for any damages to or loss of the Equipment used at Franchisee Restaurants, including all costs, expenses or fees required to repair or replace such Equipment, due and owning upon receipt of the invoice from Botrista; and
6.3.2 Any outstanding Orders for Accessories or Consumables which have not shipped will be deemed cancelled, and Botrista will refund any amounts already paid with respect to such cancelled Orders.
6.4 Survival. Sections 1, 2.4, 4.4 (with respect to any accrued payment obligations), 5.3, 5.7, 5.8, 5.9, 5.10, 6.2, 6.3, 6.4, 7.2, 7.3, 8.1, 8.3, 9, 10, and 11, as well as all accrued payment obligations, will remain in force after any termination or expiration of the Agreement.
Warranties; Limitation of Liability.
7.1 Each Party represents, warrants and covenants to the other Party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a Party; (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered; and (iv) it will, in its performance of its obligations hereunder, fully comply with all Laws. Franchisee represents, warrants and covenants that it has the legal right, power and authority to: (a) cause, and it will cause, each Franchisee Party to comply with the obligations of Franchisee, releases, waivers, representations, covenants and other terms and conditions of this Agreement; and (b) bind, and it will bind, each Franchisee Restaurant to the obligations of Franchisee, releases, waivers, representations, covenants and other terms and conditions of this Agreement.
7.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BOTRISTA IP AND ANY OTHER INFORMATION IS PROVIDED BY BOTRISTA “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND; AND BOTRISTA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER (INCLUDING WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE USE OF, OR THE RESULTS FROM THE USE OF, THE EQUIPMENT, THE BOTRISTA IP, ANY CONSUMABLES, ANY ACCESSORIES OR THE EQUIPMENT GUIDELINES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, OR THAT THE BOTRISTA IP OR ANY OTHER INFORMATION PROVIDED BY BOTRISTA IS OR WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE. FRANCHISEE HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BOTRISTA TO ANY PERSON. BOTRISTA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY) AND IN NO EVENT WILL BOTRISTA BE LIABLE FOR ANY INJURY, ILLNESS, OR DEATH OF PERSONS, DAMAGE TO PROPERTY, OR ANY OTHER DAMAGE, LOSS, COSTS, EXPENSES, REPAIRS, CLAIMS, DEMANDS, SUITS, ACTIONS, OR FEES ARISING FROM OR RELATED TO BOTRISTA’S OR ITS DESIGNEE’S OR THEIR RESPECTIVE PERSONNEL’S MOVEMENT, REARRANGEMENT, DISASSEMBLY, ADJUSTMENT, DISCONNECTION, RECONNECTION, OR OTHER ALTERATION OF OR TO ANY EQUIPMENT (OTHER THAN THE EQUIPMENT PROVIDED BY BOTRISTA), CONNECTIONS, WIRES, HOSES, MACHINES, FURNITURE, OR OTHER TANGIBLE ITEMS LOCATED AT ANY FRANCHISEE RESTAURANT.
7.3 EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, FRANCHISEE’S OR A FRANCHISEE PARTY’S UNAUTHORIZED USE OR MODIFICATION OF BOTRISTA IP, FRANCHISEE OR A FRANCHISEE PARTY’S BREACH OF SECTION 10, FRANCHISEE’S OR A FRANCHISEE PARTY’S BREACH OF SECTIONS 5.7 OR 5.8, FRANCHISEE’S FAILURE TO PAY ANY AMOUNTS DUE UNDER THIS AGREEMENT, FRANCHISEE’S OR A FRANCHISEE PARTY’S BREACH OF SECTION 3, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE, IN NO EVENT WILL: (I) EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE EQUIPMENT, CONSUMABLES, ACCESSORIES, OR THE EQUIPMENT GUIDELINES; (II) EITHER PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS FRANCHISEE PAID TO BOTRISTA PURSUANT TO THIS AGREEMENT WITHIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT.
Indemnification and Insurance.
8.1 Franchisee Indemnification. Franchisee will indemnify, defend and hold harmless Botrista and its directors, officers, employees, agents, contractors, representatives and other personnel from and against any and all actual or threatened third-party claims, actions, damages, losses, liabilities, costs and expenses, including reasonable attorneys’, experts’ and investigators’ fees and expenses, (collectively, “Actions”), to the extent arising out of or related to: (i) Franchisee’s or a Franchisee Party’s failure to comply with any Laws; (ii) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of Franchisee’s representations, warranties, covenants or duties arising out of, or in connection with, this Agreement; (iii) the Products Crafted using the Equipment including, the making, marketing, or sale, or recall thereof, including any alleged defects, imperfection, adulteration and/or inherent dangers (whether obvious or hidden) in the Products or the use or consumption thereof, any product liability issues or claims, the packaging or labeling of a Product, the failure of a Product to confirm to its published specifications or promotional or other informational materials, or a failure to warn; (iv) any injury, illness or death of persons, damage to property or any other damage or loss arising out of or in connection with the Products or due to Franchisee’s or a Franchisee Restaurant’s use of untrained personnel; (v) any theft or loss of, or damage (including any damage caused by a Franchisee Party’s failure to comply with the Equipment Guidelines) to the Equipment; (vi) Franchisee’s or a Franchisee Party’s use of Third-Party Consumables; (vii) Franchisee’s or a Franchisee Party’s cleaning or sanitizing of the Equipment (including cleaning or sanitizing related to the use of Third-Party Consumables with the Equipment) or Franchisee’s or a Franchisee Party’s failure to properly clean or sanitize the Equipment in accordance with the Laws or the Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws); or (viii) any act or omission, willful or negligent, by Franchisee or a Franchisee Party arising out of or related to the performance of its obligations and rights under this Agreement.
8.2 Botrista Indemnification. Botrista will defend Franchisee and its directors, officers, employees, agents, contractors, representatives and other personnel from and against any and all actual or threatened third-party Actions and will pay for the resulting costs and damages finally awarded against Franchisee to such third party by a court of competent jurisdiction or agreed to in settlement by Botrista, to the extent arising from actual or alleged infringement of such third party’s Intellectual Property Rights by the Botrista IP. Notwithstanding the foregoing, Botrista will have no indemnification obligations arising from this Section 8.2, to the extent such Action arises from or relates to: (i) the use or combination of any Botrista IP with any hardware, software, products, information, accessories, processes, data, or other materials not provided by Botrista, including any Third-Party Consumables or Franchisee’s own systems, data, products, supplies, goods, Consumables, or other materials; (ii) modification or alteration of the Botrista IP by anyone other than Botrista; or, (iii) Franchisee’s, its personnel’s or a Franchisee Restaurant’s misuse of the Equipment or Botrista IP or use of the Equipment or Botrista IP in excess of the rights granted under this Agreement.
8.3 Insurance. Franchisee will, at its own cost and expense, obtain and maintain for so long as Franchisee possesses or controls Equipment, and for two (2) years thereafter, the following insurance from an insurance company whose A.M. Best rating is A-VIII or better, providing adequate protection for Franchisee and Botrista against any such claims or suits in the following amounts Commercial General Liability Insurance (including food and beverage coverage and equipment coverage that covers any Equipment and any beverages produced by the Equipment) with limits not less than one million dollars ($1,000,000USD) per occurrence and two million dollars ($2,000,000USD) in the aggregate. Franchisee may purchase an umbrella insurance policy to meet the foregoing minimum liability insurance limits; provided that in all instances, the combination of primary and umbrella liability coverage must equal or exceed the foregoing minimum liability insurance limits. Within thirty (30) days after the execution of this Agreement and thereafter within thirty (30) days from the date of renewal of Franchisee’s insurance policies, Franchisee will submit to Botrista a fully paid policies or certificates of insurance naming Botrista as an additional insured party and requiring that the insurer will not terminate or materially modify such policies or certificates of insurance without written notice to Botrista at least twenty (20) days in advance thereof. All insurance maintained by Franchisee will be primary and non-contributory with respect to any insurance maintained by Botrista and include a waiver of subrogation in favor of Botrista and its employees, officers, owners, and agents, except for those employees and/or agents provided by Franchisee under the Agreement. Obtaining and maintaining such insurance and the delivery to Botrista of the policy or certificate are material obligations of Franchisee. On an annual basis, Botrista may audit the Franchisee’s insurance or request the Franchisee’s policies or certificates of insurance (and Franchisee will provide its policies or certificates of insurance no later than five (5) days following such request) to verify Franchisee’s compliance with its obligations set forth in this Section 8.3.
9.1 Definition of Confidential Information. As used herein, “Confidential Information” means any nonpublic or proprietary information disclosed by a Party (“Discloser”) to the other Party (“Recipient”) (including prior to the Effective Date), whether orally or in writing, that: (i) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; or (ii) based upon the facts and circumstances of the disclosure, information that a reasonable person would consider confidential. For clarity, this Agreement, all nonpublic Botrista IP and all pricing information under this Agreement or an applicable Order, is the Confidential Information of Botrista. Confidential Information does not include any information that: (a) was publicly available prior to the time of disclosure by the Discloser; (b) becomes publicly available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (c) is already in the lawful possession of the Recipient at the time of disclosure, as shown by documentation; (d) is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
9.2 Protection of Confidential Information. Recipient will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information for any purpose outside the scope of this Agreement; and (iii) only disclose Confidential Information of the Discloser to those of its and its Affiliates’ employees, contractors, and agents (“Representative(s)”) who are bound in writing by confidentiality obligations at least as protective as this Agreement and need such access for purposes consistent with this Agreement. If any Representative discloses or uses Confidential Information other than as authorized in this Agreement, Recipient will be liable to Discloser for such disclosure or use to the same extent that Recipient would have been liable had Recipient performed such unauthorized disclosure or use.
9.3 Compelled Access or Disclosure. Notwithstanding any language to the contrary, if Recipient is required to disclose Confidential Information pursuant to a valid judicial or administrative order, Recipient may make such disclosure on the condition that Recipient: (i) provides timely written notice of such order to Discloser and reasonably cooperates with any efforts by Discloser to contest or limit the scope of such order; and (ii) uses all reasonable efforts to limit the disclosure of such Confidential Information and seek a protective order or an equivalent order to prevent or protect the disclosure of such Confidential Information.
Governing Law; Jurisdiction. This Agreement and any dispute arising out of or relating to this Agreement will be governed by the laws of Delaware, without reference to its conflict of law provisions. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be within the nonexclusive jurisdiction of the state and federal courts located in the Northern District of California; and the Parties hereby consent and submit to such nonexclusive jurisdiction and waive objections to venue therein. The Parties expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement. ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO FRANCHISEE AND BOTRISTA AND ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
11.1 Relationship of the Parties. Botrista (including any and all Botrista employees, agents, consultants or subcontractors), in performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Franchisee. Botrista will have exclusive control of the manner and means of performing its obligations under this Agreement. Each Party is solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including withholding of appropriate payroll taxes), workers’ compensation, disability, health insurance and other benefits. Nothing in this Agreement will be construed as making either Party the agent of the other Party, as granting to the other Party the right to enter into any contract on behalf of the other Party, or as establishing a partnership, franchise or joint venture between the Parties. Under no circumstances will the employees of one Party be deemed to be employees of the other Party for any purpose. No Franchisee, Franchisee Restaurant or other third party will be deemed to constitute a third-party beneficiary of this Agreement.
11.2 Assignment. Franchisee may not assign any of its rights or obligations under this Agreement without the prior written consent of Botrista. Notwithstanding the foregoing, Franchisee may assign its rights and obligations under this Agreement in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction to an entity organized under the laws of a State in the United States; provided, however: (i) Franchisee notifies Botrista at least thirty (30) days prior to the signing of such transaction; and (ii) the Franchisee’s purchaser, successor, transferee, assignee or resulting entity agrees to be bound by the terms and conditions of this Agreement or if the purchaser, successor, assignee or resulting entity is a Franchisee, the Equipment Purchase Agreement. Botrista may assign, transfer or otherwise delegate this Agreement or any of its rights or obligations (in whole or in part) under this Agreement to any Person without the consent of the Franchisee. This Agreement inures to the benefit of and will be binding on the Parties’ permitted assignees, transferees and successors.
11.3 Force Majeure. Neither Party will be liable to the other Party for the nonperformance of any obligation under this Agreement (other than any payment obligation) arising from any cause beyond such Party’s reasonable control, regardless of whether such cause is foreseeable, including any: (i) act of God; (ii) flood, fire, explosion, earthquake, or natural disaster; (iii) act of terrorism, war, revolution, invasion, riot, or other civil or military disturbances or acts of public enemies; (iv) act, regulation, order, or Law of any government, civil or military authority, or any injunction of any nature; (v) embargo, blockade, tariff, or other trade restriction in effect on or after the Effective Date; (vi) national or regional emergency; (vii) epidemic, pandemic, or other contagion, including COVID-19; (viii) strike, lockout, labor dispute, stoppage or slowdown, or other industrial disturbance; (ix) casualty or accident; (x) denial of service attacks and other malicious conduct; or (xi) inability to procure, or any interruption, loss, malfunction, or shortage of, any supplies, services, products, equipment, transportation, utilities, communications, or computer software, hardware, or services.
11.4 Headings and Interpretation. In this Agreement: (i) the headings are for convenience of reference only and will not affect the meaning or interpretation of this Agreement; (ii) the words “herein,” “hereunder,” “hereby,” and similar words refer to this Agreement as a whole (and not to the particular sentence, paragraph, Article or Section where they appear); (iii) terms used in the plural include the singular, and vice versa, unless the context clearly requires otherwise; (iv) unless expressly stated herein to the contrary, reference to any document means such document as amended or modified and as in effect from time to time in accordance with the terms thereof; (v) unless expressly stated herein to the contrary, reference to any applicable law means such applicable law as amended, modified, codified, replaced or reenacted, in whole or in part, and as in effect from time to time, including any rule or regulation promulgated thereunder; (vi) “or” is used in the sense of “and/or”; “any” is used in the sense of “any or all”; the word “including” means “including without limitation”; and “with respect to” any item includes the concept “of” such item or “under” such item or any similar relationship regarding such item; (vii) unless expressly stated herein to the contrary, reference to a document, including this Agreement, will be deemed to also refer to each annex, addendum, exhibit, schedule or other attachment thereto; (viii) unless expressly stated herein to the contrary, reference to an Article, Section or Exhibit is to an article, section, schedule, or exhibit, respectively, of this Agreement; (ix) when calculating a period of time, the day that is the initial reference day in calculating such period will be excluded and, if the last day of such period is not a business day, such period will end on the next day that is a business day; and (x) the Parties participated jointly in the negotiation and drafting of this Agreement and the documents relating hereto, and each Party was (or had ample opportunity to be) represented by legal counsel in connection with this Agreement, and each Party and each Party’s counsel has reviewed and revised (or had ample opportunity to review and revise) this Agreement; therefore, if an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the terms hereof or thereof. Where Botrista has a right to decide or pursue or not pursue a course of action under the terms of this Agreement, such as, for example granting consent or approval or creating or managing policies, such determinations and decisions will be made by Botrista in its sole discretion.
11.5 Notices. All notices under the terms of this Agreement will be given in writing and will be effective upon delivery as follows: (a) when delivered in person; (b) upon confirmation of receipt when transmitted by electronic mail to the email address specified in the signature block below; or (c) upon receipt after dispatch by registered or certified mail, postage prepaid, or national overnight courier (with confirmation of delivery) to the address specified in the signature block below. Either Party may change its address for receipt of notices by providing notice to the other Party in accordance with this Section 11.5.
11.6 Amendments. An amendment of this Agreement will be binding upon the Parties only so long as it is in writing and executed by both Parties.
11.7 Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
11.8 Severability; Counterparts. Each provision contained in this Agreement constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) of this Agreement that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. This Agreement may be executed simultaneously by the Parties with any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution of this Agreement may be accomplished by signing, including via electronic signature, and transmitting the signature page to the other Party.
11.9 Entire Agreement. This Agreement, together with the Exhibits attached hereto and referenced herein, constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements, or communications between them concerning the subject matter hereof.
Cleaning and Sanitizing the Equipment and Use of Third-Party Consumables
A. Failing to clean or sanitize the Equipment in accordance with all Laws and the Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws) could result in illness, personal sickness or injury (including death), pain, suffering, temporary or permanent disability or incapacitation, financial loss, and other personal or financial injury of a Person. In addition, the risks from unclean or unsanitized Equipment may result from or be compounded by the actions, omissions, or negligence of untrained personnel or unauthorized users. FRANCHISEE WILL (AND WILL CAUSE THE FRANCHISEE PARTIES TO): (I) CLEAN AND SANITIZE THE EQUIPMENT IN ACCORDANCE WITH ALL LAWS AND THE EQUIPMENT GUIDELINES (TO THE EXTENT THE EQUIPMENT GUIDELINES DO NOT CONFLICT WITH THE LAWS); AND (II) ONLY USE AND ALLOW PROPERLY TRAINED PERSONNEL TO OPERATE, CLEAN, AND SANITIZE THE EQUIPMENT. The Equipment Guidelines are designed to help clean and sanitize the Equipment after use thereof only with Botrista Consumables. USE OF THIRD-PARTY CONSUMABLES WITH THE EQUIPMENT IS AT FRANCHISEE’S OWN DISCRETION AND RISK, AND CUSTOMER IS RESPONSIBLE FOR DETERMINING HOW AND WHEN TO CLEAN AND SANITIZE THE EQUIPMENT AFTER USE THEREOF WITH THIRD-PARTY CONSUMABLES
B. Botrista may from time to time respond to Franchisee Party’s questions concerning cleaning or sanitizing the Equipment (each, a “Response”). EACH RESPONSE AND ANY OTHER INFORMATION PROVIDED THEREWITH IS PROVIDED BY BOTRISTA “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND; BOTRISTA MAKES NO (AND HEREBY DISCLAIMS ANY) WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RESULTS TO BE ATTAINED FROM THE USE OF OR RELIANCE ON ANY RESPONSE OR INFORMATION PROVIDED THEREWITH; AND RELIANCE ON ANY RESPONSE OR ANY INFORMATION PROVIDED THEREWITH IS AT SUCH FRANCHISEE PARTY’S OWN DISCRETION AND RISK.
C. In addition to the foregoing risks in this Section 5.7, there may be other foreseeable or unknown risks arising from: (i) the improper cleaning or sanitization of the Equipment; (ii) the failure to comply with the Laws or Equipment Guidelines (to the extent the Equipment Guidelines do not conflict with the Laws); or (iii) the use of Third-Party Consumables with the Equipment. FRANCHISEE REPRESENTS THAT IT HAS CONSIDERED AND EVALUATED (AND HAS CAUSED EACH FRANCHISEE RESTAURANT TO CONSIDER AND EVALUATE) THE NATURE, SCOPE, AND EXTENT OF THE RISKS INVOLVED REGARDING THE CLEANING OR SANITIZING OF THE EQUIPMENT, USING UNCLEANED OR UNSANITIZED EQUIPMENT, AND USING THIRD-PARTY CONSUMABLES WITH THE EQUIPMENT, AND FRANCHISEE VOLUNTARILY AND FREELY CHOOSES (AND FRANCHISEE HAS CAUSED EACH FRANCHISEE RESTAURANT TO VOLUNTARILY AND FREELY CHOOSE) TO ASSUME THESE RISKS.
D. Botrista and its suppliers do not provide any insurance, including life, medical or liability (including product liability), for any risk that may arise in connection with cleaning or sanitizing of the Equipment (including cleaning or sanitizing related to the use of Third-Party Consumables with the Equipment) or the failure to properly clean or sanitize the Equipment in accordance with the Laws or the Equipment Guidelines. Any dispute arising under this Exhibit A (including any dispute between Franchisee and any of the Released Parties) will be settled in accordance with Section 10 of the Agreement, except to the extent this Exhibit A is currently at issue in an ongoing litigation involving Franchisee, Botrista and a third-party that has brought claims against Franchisee or Botrista
E. FRANCHISEE (FOR ITSELF AND ON BEHALF OF EACH FRANCHISEE RESTAURANT) FULLY AND FOREVER RELEASES, AND DISCHARGES BOTRISTA AND ITS AFFILIATES, THEIR INSURERS, SPONSORS, AND ANY THIRD PARTIES INVOLVED WITH THE EQUIPMENT, THE EQUIPMENT GUIDELINES OR ANY RESPONSE, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES AND OTHER PERSONNEL (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RISKS, LOSSES, DAMAGES, EXPENSES, AND ANY OTHER LIABILITY OF ANY KIND DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE CLEANING OR SANITIZING OF THE EQUIPMENT (INCLUDING CLEANING OR SANITIZING RELATED TO THE USE OF THIRD-PARTY CONSUMABLES WITH THE EQUIPMENT) OR A FAILURE TO PROPERLY CLEAN OR SANITIZE THE EQUIPMENT IN ACCORDANCE WITH THE LAWS OR THE EQUIPMENT GUIDELINES (TO THE EXTENT THE EQUIPMENT GUIDELINES DO NOT CONFLICT WITH THE LAWS), EVEN IF THE CLAIM AROSE OUT OF THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES. FRANCHISEE WILL NOT (AND HAS CAUSED EACH FRANCHISEE RESTAURANT TO NOT) INITIATE ANY LAWSUIT, COURT ACTION, OR OTHER LEGAL PROCEEDING AGAINST THE RELEASED PARTIES, NOR JOIN OR ASSIST IN THE PROSECUTION OF ANY CLAIM ARISING OUT OF RISKS, LOSSES, OR DAMAGES SUSTAINED BY FRANCHISEE OR OTHERS IN CONNECTION WITH THE CLEANING OR SANITIZING OF THE EQUIPMENT (INCLUDING CLEANING OR SANITIZING RELATED TO THE USE OF THIRD-PARTY CONSUMABLES WITH THE EQUIPMENT) OR THE FAILURE TO PROPERLY CLEAN OR SANITIZE THE EQUIPMENT IN ACCORDANCE WITH THE LAWS OR THE EQUIPMENT GUIDELINES (TO THE EXTENT THE EQUIPMENT GUIDELINES DO NOT CONFLICT WITH THE LAWS), AND FRANCHISEE WAIVES (AND HAS CAUSED EACH FRANCHISEE RESTAURANT TO WAIVE) ANY RIGHT FRANCHISEE OR A FRANCHISEE PARTY MAY HAVE TO DO SO. IF FRANCHISEE (OR A FRANCHISEE PARTY) IS A CALIFORNIA ENTITY OR CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, FRANCHISEE HEREBY EXPRESSLY WAIVES (AND HAS CAUSED EACH SUCH FRANCHISEE RESTAURANT TO EXPRESSLY WAIVE) THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
F. FRANCHISEE UNDERSTANDS THAT BY SIGNING THE INITIAL ORDER: (A) FRANCHISEE HAS ACCEPTED AND AGREED TO THE TERMS AND CONDITIONS IN THIS EXHIBIT A, WHICH CONTAINS A RELEASE OF LIABILITY AND WAIVER OF LEGAL RIGHTS AND DEPRIVES FRANCHISEE OF THE RIGHT TO SUE CERTAIN PARTIES; (B) FRANCHISEE ACCEPTS THE INHERENT DANGERS AND RISKS THAT ARISE FROM THE CLEANING OR SANITIZING THE EQUIPMENT (INCLUDING CLEANING OR SANITIZING RELATED TO THE USE THIRD-PARTY CONSUMABLES WITH THE EQUIPMENT) AND THE FAILURE TO PROPERLY CLEAN OR SANITIZE THE EQUIPMENT IN ACCORDANCE WITH THE LAWS AND THE EQUIPMENT GUIDELINES, WHICH MAY OR MAY NOT BE READILY FORESEEABLE, INCLUDING PERSONAL INJURY, PROPERTY DAMAGE, OR DEATH; AND (C) FRANCHISEE HAS READ THE TERMS AND CONDITIONS SET FORTH IN THIS EXHIBIT A CAREFULLY, FULLY UNDERSTANDS ITS CONTENTS, AND VOLUNTARILY AGREES TO THESE TERMS AND CONDITIONS WITHOUT ANY INDUCEMENT.