VIRTUAL BRAND LICENSING AGREEMENT
This Brand Licensing Agreement (this “Agreement”) is effective as of the Agreement Effective Date below and is entered into by and between Botrista and the Partner identified below. By signature below, the duly authorized representatives of the parties agree to the terms and conditions of this Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Agreement.
1. Preamble. The Partner owns and/or leases one or more Facilities in which the partner operates restaurant and/or commercial kitchens. Botrista has an existing licensing agreement with Brand Concept and desires to license the Brand Concept to the Partner for operation in the Facility. The partner will add the Brand Concept to the Partner Platform to allow its Customers to place Orders of Brand Concept menu items. Orders placed with the Brand Concept at the Facility through the Partner’s Platform will be fulfilled by the partner. The parties agree that Botrista is not a franchisor and this Agreement does not create a franchise relationship between the parties.
2.1. “Brand Concept” means the restaurant brand that has partnered with Botrista that is set forth on the Cover Page of this Agreement and is the subject of the License.
2.2. “Partner Platform” means, collectively, the Partner’s existing online/offline selling channels and the new virtual brand stores on the 3rd party delivery app that Botrista helps set-up with.
2.3. “Facility” means the Partner owned and/or leased restaurant/commercial kitchen space set forth on the Cover Page of this Agreement and through which the Brand Concept(s) operated by the Partner.
2.4. “License” means Botrista’s license to the Partner of the Brand Concept as further described in Section 1 above.
2.5. “Inventory” means Brand Concept-specific food or beverage inventory items (i.e., Brand Concept specific BIBs).
2.6. “Brand Concept Marks” means Botrista’s and the brand’s trademarks, trade names, service marks and commercial symbols (including the Brand Concept).
2.7. “Brand Concept Products” means the Brand Concept menu items that the Partner may prepare and sell through the Partner Platform.
2.8. “Orders” means any sale of a Brand Concept menu item from the Facility.
3. Rights and Obligations.
3.1. Partner Rights and Obligations.
3.1.1. License. During this Agreement Term, the Partner shall have the right to use the License to purchase, store, prepare, package, label, display, market, and sell Brand Concepts Products through the Partner Platform in the Delivery Radius using Brand Concept’s recipes and/or other food preparation guidelines. The Partner will be responsible for all of its own operational costs of operating the License in the Facility, including but not limited to costs of inventory, kitchen equipment, and packaging.
3.1.2. Inventory Acquisition. The Partner will be responsible for sourcing and purchasing at its own cost its supply of inventory for preparation of Brand Concept Products at the Facility. Notwithstanding the foregoing, The Partner will purchase all ingredients, inclusive of Inventory items, from Botrista directly or from the suppliers requested by Botrista and set forth on Exhibit A attached hereto. Additionally, subject to Botrista’s prior written approval in each instance (email shall suffice), such approval not to be unreasonably withheld, conditioned or delayed, The Partner shall have the right to add items to the menu of items sold by the Partner through the Partner Platform under the Brand Concept.
3.1.3. Menu Aggregation. The Partner may aggregate Brand Concept’s menu and/or specific Brand Concept Products (including the Inventory) prepared by the Partner and/or its third party kitchen operators into a separate branded menu page on the Partner Platform.
3.1.4 Customer Complaints. In the event a Customer submits a complaint about his or her Order via the Partner Platform, the Partner may, in its discretion, issue a re-order, credit, partial refund, or full refund to such Customer. The Partner shall be responsible for preparation of menu items in the event of a re-order and bear the full cost of that re-order, credit or refund, as applicable, and shall be responsible for any refund, credit or re-order that is caused by the Orders.
3.2. Botrista Rights and Obligations.
3.2.1. Exclusivity. During this Agreement Term, Botrista grants to the Partner the License to operate the Brand Concept within the Territory. Additionally, Botrista agrees that it will not grant the same or similar license to any other third party food ordering or delivery platform, ghost kitchen, virtual restaurant brand curator, or other similar operator for this specific Brand Concept in the Delivery Radius during this Agreement Term.
3.2.2. Trademark License. During this Agreement Term, Botrista grants to the Partner the exclusive right, license and privilege to use certain Brand Concept Marks within the Delivery Radius in connection with the Partner’s operation of the License, including in connection with the preparation, promotion, advertising and/or sale of Botrista Products through the Partner Platform. Except for the limited license granted in this Section 3.2.2, The Partner shall have no rights whatsoever in or to the Brand Concept Marks.
3.2.3. Financial Audit. Botrista shall have the right no more than once per calendar year to require the Partner to provide documentation electronically necessary to determine the accuracy of all amounts paid by the partner to Botrista as the License Fee hereunder. Upon Botrista’s request, a member of the Partner’s management team will certify as to the accuracy of such additional documentation. If any such audit reveals any under-payment of the License Fee amounts, the Partner shall promptly pay any such amounts due to Botrista.
4. Marketing. The Partner agrees to spend the Partner Marketing Commitment amount set forth on the Cover Page of this Agreement to promote Customers’ ability to place Orders with the Brand Concept operated at the Facility. Botrista agrees to get the Brand Concept to participate in the Brand Concept Marketing Commitments set forth on the Cover Page of this Agreement in connection with the Brand Concept operations at the Facility, however Botrista and the Partner both agree that the specific activities performed by Brand Concept in relation to this Agreement may differ from those listed in the Brand Concept Marketing Commitments section of this Agreement.
5. Sales Data. Botrista will provide insights to the Partner regarding seasonal beverage trends and menu suggestions on an on-going basis. The Partner will share monthly POS sales data with Botrista for Brand Concept drink menu analysis. The Partner acknowledges that the Drinkbot will automatically collect machine usage information including, but not limited to, operating data of the Drinkbot (such information is known as the “Machine Usage Data”). The Partner acknowledges and agrees that Botrista may use the Machine Usage Data to analyze the usage of the Drinkbot, improve the Drinkbot and user experience, develop new products and services, and provide training. The Machine Usage Data may be transmitted for the foregoing purposes to Botrista’s affiliates and other third parties, including but not limited to Botrista’s manufacturers, and distributors.
6. Confidentiality. In addition to each party’s confidentiality obligations set forth in the Agreement, the parties acknowledge and agree that (i) the recipes for each Brand Concept menu item shall be considered Brand Concept’s Confidential Information, and (ii) subject to Botrista’s ability to license its recipes and menu(s), any materials created by the Botrista for the Partner shall be considered the Botrista’s Confidential Information. Except as set forth in the Agreement, neither party will disclose the other party’s Confidential Information to any third party.
7. Representations and Warranties.
7.1. The Partner. In addition to its obligations set forth in the Agreement, solely with respect to the License set forth in this Agreement, the Partner represents and warrants to Botrista that: (a) it will obtain and maintain throughout the Agreement Term all licenses, certifications and/or permits required by applicable law to operate the Brand Concept through the Facility, and (b) its operations in connection with the License will comply with all applicable laws, rules and regulations, including those related to the preparation, storage and handling of food products.
7.2. Botrista. In addition to its obligations set forth in the Agreement, with respect to the License set forth in this Agreement, Botrista represents and warrants to the Partner that the Brand Concept, the Brand Concept Marks, and any other materials provided by Botrista under this Agreement will not infringe any third party intellectual property rights.
7.3. Disclaimers. The Partner makes no guarantees or warranties with respect to amounts due to Botrista for the License Fee.
8.1. The Partner. In addition to its indemnification obligations in the Agreement, solely with respect to the License set forth in this Agreement, the Partner will defend, indemnify and hold harmless Botrista from and against any and all third party claims arising out of (a) bodily injury (including death) or damage to tangible or real property to the extent caused by the Partner (including with respect to the Partner’s operation of the Facility and preparation of Botrista Products; (b) The Partner’s breach of any of its representations and warranties under this Agreement; and (c) The Partner’s unauthorized use of Brand Concept Marks.
8.2. Botrista. In addition to its indemnification obligations in the Agreement, with respect to the License set forth in this Agreement, Botrista will defend, indemnify and hold harmless the Partner from and against any and all third party claims arising out of (a) The Partner’s authorized use of the Brand Concept Marks; and (b) Inventory purchased from Botrista.
9. Limitation of Liability. EXCEPT WITH RESPECT TO AMOUNTS DUE UNDER EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS OF PROCURING REPLACEMENT SERVICES, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE. THIS LIMITATION WILL APPLY TO ALL CLAIMS UNDER ALL THEORIES OF LAW AND EQUITY, EXCEPT WHERE PROHIBITED BY LAW; AND (II) THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER WILL BE LIMITED TO $250,000.
10. Agreement Term and Return Policy.
10.1. Licensing Term. The Agreement includes a 60-month term encompassing software and service, machine maintenance, and menu and beverage licensing, with automatic renewal in 12-month increments. Upon termination, the Partner must cease using the software and service, and either return or destroy all copies of the software and documentation in their possession, which will also result in the automatic termination of all licenses granted herein.
10.2. Machine Return Policy. The Return Policy stipulates that Return Authorization Requests must be submitted within 45 days of delivery, with all returns incurring a minimum 30% Restocking Fee deducted from the refund amount, and both restocking fees and return shipping charges assessed and deducted from the refund before issuing a credit; furthermore, customers are responsible for all return shipping costs, and taxes are non-refundable even if a credit is issued, as Sales Tax is not included in any refunded amounts.
11.1. Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be delivered by fax or e-mail, in which event, each of which is deemed an original, and all of which together constitute one agreement.
11.2. Entire Agreement. This Agreement represents the entire agreement between the Partner and Botrista with respect to the subject matter hereof and supersedes all prior agreements with respect to the subject matter hereof.
11.3. Enforcement. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.