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menuMatrix© Program Terms and Conditions

menuMATRIX® PROGRAM TERMS AND CONDITIONS

In participating in the menuMATRIX® program (the “Program”), Customer utilizes software products (the “Software”) and electronic manuals, files, and technical materials (the “Documentation”) licensed to it by MealSuite, Inc. (“MealSuite”). Performance acts as a third-party reseller of licenses from MealSuite for use of the Software. These Terms govern Customer’s participation in the Program, which includes Customer’s purchase of such a license from Performance pursuant to a Fee Agreement. The Fee Agreement and any addenda, amendments, and exhibits thereto, together with these Terms, shall be referred to herein as the “Agreement.” Capitalized terms not otherwise defined herein shall have the meaning set forth in the Fee Agreement.

Invoices and Payment Terms.
Performance shall invoice Customer for all fees and expenses relating to Customer’s use of the Software and associated interfaces and services (the “Fees”), including but not limited to fees for licensure, maintenance, support, and training, in the amounts set forth in the Fee Agreement. The payment terms for such invoices are the same terms that apply to other purchases Customer makes from Performance. Customer represents that it shall pay all Fees and other amounts to Performance when due.
Customer Acknowledgements.
Customer acknowledges and agrees as follows:
1. Performance is not the licensor of the Software. Customer licenses the Software pursuant to a separately executed End User License Agreement between MealSuite, Inc. and Customer (the “EULA”).
2. Performance has the right to terminate, or to cause MealSuite to terminate, Customer’s EULA in the event of Customer’s failure to pay any Fees when due or other Customer’s breach of the Agreement, or as otherwise stated in the EULA.
3. Performance has the right to terminate, or to cause MealSuite to terminate, Customer’s EULA with MealSuite immediately upon termination of Customers’ foodservice distribution agreement with Performance or once Customer is no longer a purchaser of foodservice distribution services from Performance.
Support and Training.
Customer may receive implementation, support, and training services related to the Program from Performance or from MealSuite.
Disclaimers.
1. The menus provided in accordance with the Program and Software, and any other menu guidance provided to Customer by Performance, have been prepared and provided only as general nutritional guides and are not warranted or guaranteed for any purpose or application. Customer shall review, modify (if necessary), and approve, by a licensed dietician on Customer’s staff, all menus prior to implementation by Customer.
2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PERFORMANCE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
3. No advice or information, whether oral or written, obtained by Customer from Performance or from the Program shall create any warranty, express or implied.
Termination.
1. Automatic. If the EULA terminates for any reason, either in full or in part with respect to one or more Customer facilities, the Agreement shall automatically terminate immediately with respect to (i) Customer and all of its facilities (if the EULA is terminated in full) or (ii) all Customer facilities affected by such termination (if the EULA is terminated in part).
2. By Performance. Performance has the right to terminate the Agreement and/or the EULA in full, or in part with respect to one or more Customer facilities, as follows: (i) without cause, upon thirty (30) days’ prior written notice to Customer; (ii) immediately if Customer fails to make any payment when due or otherwise breaches the Agreement; (iii) immediately upon Customer’s insolvency (including inability to pay debts as they mature), cessation of business, operation as a going concern, assignment or attempted assignment for the benefit of creditors or similar acts, bankruptcy or institution similar proceedings (whether by or against Customer), dissolution or liquidation, or the appointment of a receiver; and/or (iv) immediately once Customer stops purchasing foodservice distribution services from Performance.
3. Effect of Termination. If the Agreement and/or the EULA is terminated for any reason, Customer shall promptly pay Performance any unpaid Fees then due and owing.
Release and Indemnity.

Customer hereby releases Performance, its affiliates and subsidiaries, and each of their respective officers, directors, employees, agents, and representatives (collectively, the “Performance Parties”) from, and Customer shall defend the Performance Parties against, any and all claims arising from or relating to the Agreement, the EULA (including termination thereof), or Customer’s or any user’s access to or use of the Software or Program, any related third party software or interfaces that interact with the Software or Program, and any other services provided by MealSuite (collectively, the “Claims”), and Customer shall indemnify the Performance Parties for any damages, fines, fees, penalties, judgments, settlements, fees (including reasonable attorney’s fees), costs, and expenses incurred by or assessed against the Performance as a result of or in relation to any such Claims.
Disclaimer of Liability/Limits of Liability.

IN NO EVENT SHALL PERFORMANCE BE LIABLE FOR, AND CUSTOMER UNCONDITIONALLY RELEASES PERFORMANCE FROM, ANY AND ALL LIABILITY FOR (A) DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING FROM OR RELATED TO CUSTOMER’S OR ANY USER’S ACCESS TO OR OPERATION OR USE OF THE SOFTWARE OR PROGRAM OR ANY OTHER THIRD PARTY SOFTWARE, INTERFACES, OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE, LOSS OF USE, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND ANY CLAIMS AGAINST CUSTOMER BY A THIRD PARTY, EVEN IF PERFORMANCE HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES; OR (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY PERFORMANCE TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT DUE TO ANY CAUSE BEYOND PERFORMANCE’S REASONABLE CONTROL. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, PERFORMANCE’S LIABILITY UNDER THE AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED AMOUNTS ACTUALLY RECEIVED BY PERFORMANCE FROM CUSTOMER UNDER THE AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
Confidentiality.

Customer will not disclose any Confidential Information to any third party without Performance’s prior written consent or as otherwise required by applicable law (in which case Customer will provide Performance with prior written notice of any such legally required disclosure). Customer will not use any Confidential Information for any reason other than to fulfill the terms of the Agreement. “Confidential Information” means any information regarding the business, finances, pricing practices, products, and services of Performance, but excluding any information that (a) was known to Customer at the time the Confidential Information was disclosed; (b) was known to the public at the time the Confidential Information was disclosed; (c) becomes known to the public after the date the Confidential information was disclosed to Customer through no fault of Customer; or (d) is given to Customer by a third party without restriction who has a lawful right to disclose the Confidential Information to Customer.
Miscellaneous.

The Agreement is governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to any choice of conflict of law provisions. This Agreement contains the sole and entire agreement with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same subject matter. The invalidity or unenforceability of any provision shall not affect the validity or enforceability of any other provision of the Agreement. Performance’s obligations under the Agreement are extended to Customer only and shall not inure to the benefit of or form the basis of a claim by any other party, nor shall Customer assign or transfer any rights or obligations under the Agreement without Performance’s prior written consent. No failure to exercise any right or remedy arising from the Agreement shall operate or be construed as a waiver thereof. Termination of the Agreement will not relieve Customer of any obligation or liability that accrues prior to the effective date of termination, or which, by its nature, must be performed subsequent to the effective date of termination. The rights and obligations set forth in Sections 1, 5.c, 6, 7, 8 and 9 of these Terms and Conditions shall survive the termination of the Agreement.

By logging into MealSuite, you agree to the Terms of Service

MealSuite Inc. and its affiliates (“MealSuite”) develop, provide access to, license, support and provide professional services related to cloud based foodservice technology platforms (“Services”).

1. Acceptance of Terms

By accessing or using the Services or any of the software, applications, tools and services provided to you on, from, through or in connection with the Services you agree to these Terms of Service (the "Terms of Service") and our privacy policy (“Privacy Policy”). If you do not agree to these Terms of Service or the Privacy Policy, please do not access or use the Service.

This Terms of Service is between the customer using Services (“Customer”, “you”, “your”) and MealSuite (“MealSuite”, “we”, “us”, “our”).

2. MealSuite Services

2.1 MealSuite, either directly to the Customer, or through a third-party partner, may provide the following Services:

2.1.1 Software Access:a non-transferable, non-exclusive, non-sublicensable limited license to the applicable MealSuite intellectual property, to access and use MealSuites’ cloud based foodservice technology platform (“Software”) via the internet as further described in the applicable order form or quotation. Licensure is limited to specific functionality as quoted and paid for by Customer;

2.1.2 Professional Services. training, consulting, support and professional services (“Professional Services”). MealSuite will provide the Professional Services in a professional workmanlike manner;

2.1.3 Equipment, Sensors and Consumables. assist Customers the acquisition or access to equipment, sensors and consumables (“Equipment Products”) for direct use with the Software. Such products may contain individual terms of use and sale including network requirements, warranty period, release of liability, required add-ons with MealSuite and/or equipment manufacturer directly;

2.1.4 MealSuite Data. depending on purchased Software functionality, the country in which the Customer operates, and particulars with respect to a reselling partner, the Software may come with a pre-built database of menus and/or recipes spread to designated therapeutic diets (“Menu Data”). Additionally, a library of nutrient files may be available, which includes data from public (ie USDA, CNF) and privately compiled data sources including commercial data brokers and partnerships with various food manufacturers (“Nutrient Data”) (Menu Data and Nutrient Data are collectively referred to as “Provided Data”). Provided Data is maintained per our Data Standards Agreement which can be found at www.mealsuite.com/data-standards . MealSuite is not responsible for the entry of customer specific data or the accuracy of the system data including but not limited to the Provided Data; and

2.1.5 Customer Support. customer support via help desk is available to assist Customer’s authorized contacts with the MealSuite Services.

Customer also understands and agrees that any changes that occur by a third party technology can impact the quality, timing, or general availability of data moving between the Software and the third-party systems and that MealSuite disclaims any and all responsibility and/or liability for any loss of data, performance failure, delay, inaccuracy, harm or loss of any manner, or type of error resulting from such changes.

2.2 Aggregate Usage Data. MealSuite may use aggregate data (including deidentified data) collected by MealSuite with respect to Customer’s and Users’ access to and use of the Services without the prior written consent of Customer or Users including: (i) for the analysis, development, forecasting, machine learning, and provision of the Services; (ii) for recordkeeping, fee calculation, internal reporting, support, and other legitimate business purposes; and (iii) to report the number and types of transactions and other statistical information.

3. Customer Responsibilities

Customer is solely responsible for ensuring all, including but not limited to employees, consultants, and third-parties, who access the Services through the Customer (“User”) are in compliance with this Terms of Service and all applicable policies, schedules, addenda, and agreements referenced herein. The Customer and Users are responsible for the following:

3.1.1 ensuring that all networks and hardware used is in compliance with all Software requirements and maintaining all network and operating system(s) compliance generally as further described at: www.mealsuite.com/minimum-spec ;

3.1.2 ensuring Users are adequately trained to ensure safe and effective use of the MealSuite Software and the Software is utilized for its intended uses;

3.1.3 immediately notifying MealSuite of any suspected material error with the Software, security or privacy breaches, and/or User access change requirements;

3.1.4 on-going validation that all Services are being used in compliance with all applicable laws, including but not limited to data privacy, security and dietary regulatory requirements;

3.1.5 maintaining appropriate administrative, physical and technical safeguards for protecting the security, privacy and integrity of data in the Software; and

3.1.6 maintaining the confidentiality of its passwords, regularly change them, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefore and promptly notify MealSuite; 3.1.7 MealSuite’s ability to provide Professional Services requires the co‐operation of Customer in the form of the provision of timely responses to requests for information, and the prompt and timely performance by Customer of its obligations. In the event that Customer fails to perform any of its responsibilities or obligations in a timely manner, MealSuite may be delayed in its fulfilment of its obligations and additional costs, or expenses incurred by MealSuite may be billed to Customer.

4. Prohibited Uses.

4.1 Intellectual Property. Customer acknowledges that the Services and accompanying materials (“Materials”) embody valuable confidential and proprietary information. Customer agrees that the Software and the Materials (including, but not limited to, all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are the exclusive property of MealSuite, or of third parties from whom MealSuite has obtained rights to use certain materials contained therein. MealSuite and such third parties shall retain all rights and title, to the extent of their respective interests, to all proprietary rights in the Services and Materials. Customer therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by the Services; (ii) it shall treat Software as confidential; (iii) it shall not use, copy, or disclose the same, nor permit any of its personnel to do so, except as specifically authorized by this Terms of Service; and (iv) it shall use reasonable care to safeguard the confidentiality of these items. Customer shall only grant access to the Software to its Users.

4.2 Prohibited Activities. Customer shall not, and shall cause its Users not to:

4.2.1 make services available to anyone other than its Users;

4.2.2 copy or use the Services, including the Software, and/or the data contained therein for the purpose of developing a similar software;

4.2.3 create or enable the creation of derivative works, modifications, or adaptations of the Software, or attempt to recompile, reverse engineer or disassemble the Software;

4.2.4 use any robot, spider, web-crawlers, data scraping/screen scraping/web scraping, or other automatic device or program or manual process to monitor, copy or reproduce the Software or portions or content thereof (except as made available by MealSuite as features of the Software);

4.2.5 intentionally interfere with the functionality of the Software by (i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the system; (ii) modifying the Software or interfering or attempting to interfere with the proper operation of the Software or the use of the Software by third parties, including through the use of any device, software or routine; or (iii) using the Software to disrupt the servers or networks connected to the web server;

4.2.6 violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission through the Software of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content; or

4.2.7 export datasets for use in another system.

4.3 Remedy for Breach. Customer acknowledges that compliance with the restrictive covenants contained in this Section 4are necessary to protect MealSuite’s substantial investment in proprietary information. Customer recognizes the irreparable harm and continual damage that would result from a breach of these covenants for which money damages may not be adequate. In the event Customer breaches, threatens to breach, or willfully violates any of the covenants contained herein, MealSuite shall be entitled to any legal or equitable relief available, including, without limitation, specific performance, immediate preliminary and/or permanent injunctive relief, and money damages insofar as they can be determined.

5. Confidential Information

5.1 Definition of Confidential Information. "Confidential Information"means all confidential information disclosed by Customer or MealSuite to the other party, whether orally or in writing, which is designated as confidential or which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes business and marketing plans, technology and technical information, product plans and designs, and business processes including but not limited to MealSuite Software and pricing. Confidential Information (other than protected health information) does not include any information which: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to the disclosing party; (iii) is received from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to any Confidential Information.

5.2 Protection of Confidential Information. The receiving party shall: (i) use the same degree of care to protect Confidential Information which 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 Terms of Service; and (ii) limit access to Confidential Information to those of its and its affiliates', employees, contractors and agents who need such access for purposes consistent with this Terms of Service and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those set forth in this Terms of Service. Unless legally compelled to do so or permitted by this Terms of Service, neither party shall disclose the other party’s Confidential Information to any third party (other than its affiliates, contractors, agents and their respective legal counsel) without the other party's prior written consent.

6. Disclaimer

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SERVICE, INCLUDING THE SOFTWARE, ITS INTERFACES, ANY RELATED EQUIPMENT, AND ANY MATERIALS ARE PROVIDED “AS IS” AND MEALSUITE AND ANY THIRD PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, THE SERVICES FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MEALSUITE MAKES NO REPRESENTATION OR WARRANTY (I) THAT CUSTOMER’S USE OF THE SERVICES SHALL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS, INCLUDING STATUS OR REGULATIONS AND MEALSUITE ASSUMES NO RESPONSIBILITY FOR THE ACCURACY, UP-TO-DATE STATUS, OR COMPLETENESS OF THE RESIDENT OR PATIENT DATA, NOR THE RESIDENT/PATIENT DATA’S COMPLIANCE WITH LEGAL OBLIGATIONS, (II) AS TO THE RESULTS TO BE ATTAINED BY CUSTOMER OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SERVICES; OR (III) THAT ALL USES THAT CAN BE MADE OF THE SERVICES INCLUDING THE SOFTWARE COMPLY WITH APPLICABLE LAW; RATHER, IT IS CUSTOMER’S RESPONSIBILITY TO CONFORM ITS USE OF THE SERVICES WITH THE LAW. CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES, SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SERVICES. EACH PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER EXCEPT AS SPECIFICALLY SET FORTH IN THIS TERMS OF SERVICE.

CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT THE SERVICES AND RESIDENT/PATIENT DATA ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT, OR CARE OF PERSONS BY MEALSUITE. THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT, AND SHOULD NOT BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY MEDICAL CONDITION WITHOUT THE SUPERVISION OF A DOCTOR OR QUALIFIED HEALTHCARE PROVIDER.

7. Indemnity

7.1 Indemnity by Customer. Customer shall defend (at MealSuite’s election), hold harmless and indemnify MealSuite (and any party controlling, controlled by or under common control with MealSuite), and their respective directors, officers and employees (the “Mealsuite Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agencies against MealSuite Indemnified Parties to the extent that it is based on any claim with respect to, or arising out of, customer data, or Customer’s use of the Services including the Software. Customer shall pay all costs incurred by and damages finally awarded against MealSuite.

7.2 Indemnification by MealSuite. MealSuite will indemnify and defend Customer against any claims, demands, suits, actions, proceedings, or judgments (collectively, "Claims") made or brought against Customer by a third party alleging that Customer’s use of the Software as permitted under these Terms of Services infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"). MealSuite will indemnify Customer against the resulting direct damages and attorneys’ fees finally awarded against Customer by a court of competent jurisdiction or as a result of a court approved settlement of a Claim Against Customer, provided that Customer must: (a) promptly give MealSuite written notice of the Claim Against Customer; (b) give MealSuite sole control of the defense and settlement of the Claim Against Customer (provided that MealSuite may not settle any Claim Against Customer unless the settlement releases Customer of all liability); and (c) provide MealSuite all reasonable assistance. In the event of a Claim Against Customer, or if MealSuite reasonably believes the Services may infringe or misappropriate the rights of any third party, MealSuite may in its discretion and at no cost to Customer: (i) modify the Services so that they no longer infringe or misappropriate the applicable third-party intellectual property; (ii) obtain a license for Customer’s continued use of the Services in accordance with this Terms of Service; or (iii) terminate these Terms of Service.

7.3 Indemnity Exclusions. The indemnification obligations set forth in Section 7.2 do not apply to Claims to the extent that they arise from: (a) Customer’s use of the Services in violation of these Terms of Service or applicable law; (b) Customer’s negligent acts or omissions; (c) Customer’s use of the Services after MealSuite notifies Customer to discontinue use because of an infringement claim; or (d) modifications to the Services or use of the Services in combination with any software, application or service not made or provided by MealSuite. The indemnification obligations set forth in Section 7.2 do not apply to Claims to the extent Customer is prohibited by statute or regulation from providing them.

8. Limitation of Damages

8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEALSUITE BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, AGGRAVATED, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; OR (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA; IN EACH CASE REGARDLESS OF WHETHER MEALSUITE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEALSUITE'S AGGREGATE LIABILITY RELATED TO THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID FOR THE SERVICES IN THE 1 YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000, WHICHEVER IS MORE.

9. General

9.1 Governing Law.These Terms of Service shall be governed by and construed in accordance with the state laws of Delaware and the federal laws of the United States applicable therein and each of the Parties hereto agrees irrevocably to conform to the exclusive jurisdiction of the courts of such state.

9.2 Entire Agreement, Waiver and Amendment. As between Customer and MealSuite, including all quotes/order Forms, exhibits, schedules and addenda attached or incorporated by reference, constitutes the entire agreement between Customer and MealSuite and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. Unless signed by Customer and MealSuite any contract or agreement that says anything expressly to the contrary, to the extent of any conflict or inconsistency between the provisions in the body of these Terms of Service. No purported amendment or waiver of any right, term or condition of these Terms of Service will be valid unless in writing and signed by each party’s authorized representative. Unless explicitly agreed upon in writing with an authorized signatory of MealSuite, the Customer agrees that by using the Software, signing the sales order or similar document, or proceeding with a purchase, the Customer is hereby agreeing to these Terms of Service.

9.3 Headings for Convenience Only. The division of these Terms of Service into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of this Terms of Service.

9.4 Interpretation. For these Terms of Service: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to these Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders.

9.5 Severability. If any article, section or any portion of any section of these Terms of Service is determined to be unenforceable or invalid for any reason whatsoever that unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of these Terms of Service and such unenforceable or invalid article, section or portion thereof shall be severed from the remainder of these Terms of Service.

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