KITCHIFY GENERAL TERMS AND CONDITIONS OF PRODUCT USE & AGENCY AGREEMENT
The following terms and conditions (the "Terms") govern your access to and use of the Kitchify application, website,and any related data and services contained in same, any software or applications you utilize that were downloaded or provided by or through Kitchify, and any quotations, orders or other agreements or transactions entered into by or through Kitchify (collectively referred to as the " Kitchify Products") that are made available by Middle Market LLC, a Colorado limited liability company d/b/a Kitchify (referred to herein as "Kitchify, "We" or "Us"). If these terms are modified in any documents prepared or signed by you and Kitchify, then such modified terms and conditions shall govern and the remaining terms and conditions herein which are not modified shall apply. These terms and conditions shall control over any other form prepared by you. Your access to and use of the Kitchify Products are conditioned on your acceptance of and compliance with these Terms. Please read these terms carefully.
ACCEPTANCE OF THESE TERMS
By using or accessing any Kitchify Products you agree that you are bound by all of the Terms set forth in this document, or anywhere else on the Kitchify website or pricing portal. By using the Kitchify Products on behalf of a company, organization, government, or other legal entity, you hereby represent and warrant that you are authorized to do so and to bind any such entity or organization to the terms set forth herein. If you do not or cannot agree to all of the Terms herein, you should not use, and you are hereby prohibited from using, any Kitchify Product.
MODIFICATION TO THESE TERMS AND CONDITIONS
Kitchify reserves the right to amend these Terms at any time, and you consent and accept to any such changes. In the event of a change to the Terms that, in our sole discretion, is material, the amended Terms will be posted on the website. Your use of any Kitchify Products after we post any revised Terms will reflect your acceptance of such revised Terms.
Use of any of the Kitchify Products requires registration of a master user account (an "Account") with Kitchify. There may be only one Account per establishment or business entity. Users must supply a valid email address upon registration, and must keep this information up to date at all times the Account is in use. You shall be responsible for all uses of your Account, regardless of whether such use was specifically authorized by you or not. You agree to immediately notify Kitchify of any unauthorized use of your Account. You may allow employees or agents to use the Account in order to use the Kitchify Products on your behalf, but you shall retain responsibility for all such use and payment of same, and you shall ensure that any such use complies with all of the Terms hereof. You shall be responsible for payment in full for all goods or products ordered on your Account.
The Kitchify application is a web-based application, pricing and ordering portal that does not require any downloading or installation of software by you (the "App"). In order to use the App, you must first register an account. Use of the App requires a live data connection to a computer, which will not be supplied by Kitchify. This App is not to be decompiled, copied, reverse engineered, or redistributed in any way without the express written permission of Kitchify. Use of the App is "as is." Kitchify makes no warranties as to the App`s function or fitness for any purpose.
Kitchify Products are designed to help users acquire goods and products from third party providers. Kitchify assumes no responsibility or liability for the delivery of goods or products to you from such third party suppliers, nor does Kitchify warrant that the description or pricing for any products posted on the Kitchify website are accurate or complete – as Kitchify must rely upon the information regarding such goods and products that is supplied to it, periodically, by third party suppliers. By placing orders for goods or products using Kitchify Products, you grant Kitchify an unlimited, transferable, world-wide, right to use your ordering data to track your product needs and customer profile, and to sell and provide that information to third parties.
NO RESALE OR UNAUTHORIZED USE
You may not resell or assign your rights or obligations under these Terms. You may use the Kitchify Products only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Kitchify reserves the right to terminate your permission to use any Kitchify Product, or access to its website, at any time for any reason at its sole discretion.
All purchase orders ("Orders") you submit will be submitted to the suppliers and vendors who provide the items you have ordered, and are subject to final acceptance and approval by Kitchify and its third party suppliers. Your submission of an Order binds and obligates you to the terms, conditions, pricing, specifications, and descriptions set forth in the Order – subject to any additional standard terms and conditions of the third party supplier that apply to such Order. Any changes by you to the Order after it is submitted are subject to acceptable by Kitchify and its third party suppliers, and changes in pricing, delivery dates, and other terms may change at the discretion of Kitchify and its third party suppliers.
Orders are not subject to cancellation by your notification to Kitchify and/or its third party suppliers. Any cancellations of an Order already submitted by your Company to Kitchify must be requested in writing directly to the third party supplier to whom your Order has been submitted by Kitchify, and are subject to such terms and conditions regarding cancellation as apply with the third party supplier for such Order.
PRICES, TAXES, TERMS OF PAYMENT
Product pricing is based upon current pricing as provided to Kichify from its third party suppliers, and is subject to change, based upon the availability of goods or products at the time the Order is actually received by the third party supplier. Product pricing does not always contain itemized costs for shipping or any applicable sale or other taxes associated with such Orders; but whether such items are reflected or not, you are responsible for all costs associated with shipping and any sales or other taxes that are due in connection with your Orders, contingent upon the policies and terms of the specific third party supplier that is utilized to fulfill your Order. Payments for any Order shall be remitted by you directly to the third party supplier fulfilling the Order, and shall be subject to the suppliers standard payment terms and conditions for goods or products sold by that supplier. You shall be responsible for the payment of any costs, attorney fees, or other expenses incurred by Kitchify or its suppliers in connection with recovering payment from you for any Order placed on your Account.
Kitchify will inform you if items on your order are from suppliers that do not deliver to your zip code on the next business day (or if you placed your order after that particular vendor`s cut off time for orders). In such event, you will be given the option to wait until the next specified delivery date of that supplier to your location, or to order such products from another supplier using the Kitchify App. Kitchify`s suppliers are responsible for delivering goods and products to you, and for meeting any estimated delivery dates. Kitchify will utilize good faith efforts to see that estimated delivery times, if any, are met by its suppliers; however, Kitchify does not guaranty any particular delivery date, and shall not be liable for failure to delivery or for delays in delivery. You shall indemnify Kitchify and hold it harmless from and against any and all liability, loss, expense, claims and costs arising from a delay in shipment or failure to make a delivery. Kitchify and its suppliers shall be given additional reasonable time by you to perform upon any Orders if delays occur. Kitchify also has the right to change the price when a shipment is delayed due to circumstances beyond Kitchify`s control.
All deliveries will be Free on Board the point of origin (aka – the warehouse or shipment location of any of Kitchify`s third party suppliers), freight collect, and all risk of loss shall pass to you upon delivery of the products by Kitchify`s third party suppliers to any third party carrier they use, if any. Any freight or other delivery charges paid by Kitchify`s suppliers shall be added to the purchase price of the goods or products ordered by you, and may be billed separately to you. Your sole recourse for damage to goods or products in transit shall be against the carrier of same. Kitchify and its suppliers are not responsible for insuring the goods or products, and you agree to insure same at your sole cost and expense.
KITCHIFY DOES NOT WARRANT THAT KITCHIFY PRODUCTS WILL OPERATE ERROR-FREE, BE CONTINUOUSLY AVAILABLE, OR THAT THEY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPUTER COMPONENTS. NOR DOES KITCHIFY WARRANT THAT THE DATA, PRICING OR PRODUCT DESCRIPTIONS CONTAINED WITHIN KITCHIFY PRODUCTS, IS ACCURATE, ERROR-FREE, OR COMPLETELY CURRENT AND UP TO DATE. KITCHIFY PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. KITCHIFY DISCLAIMS ALL WARRANTIES REGARDING THE PRODUCTS AND DATA DESCRIBED IN THESE TERMS, WHETHER EXPRESS OR IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. KITCHIFY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS AND LINKS FEATURED IN ITS PRODUCTS, DATA, EMAIL NEWSLETTERS AND WEBSITES. LIMITATION OF LIABILITY.
LIMITATION OF LIABILITY
IN NO EVENT SHALL KITCHIFY OR ITS OFFICERS, MANAGERS, MEMBERS, OWNERS, AND AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER (OTHER THAN DIRECT DAMAGES) INCLUDING, WITHOUT LIMITATION, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, RESULTING FROM YOUR USE OR INABILITY TO USE KITCHIFY PRODUCTS OR DATA, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT KITCHIFY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER TERMS TO THE CONTRARY SET FORTH HEREIN OR IN ANY OTHER AGREEMENT BETWEEN YOU AND KITCHIFY, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY BREACH HEREUNDER OR ANY ISSUE WITH ANY GOOD OR PRODUCT ORDERED THROUGH KITCHIFY IS THE REPAIR OR REPLACEMENT OF SUCH GOODS OR PRODUCTS BY KITCHIFY OR ITS THIRD PARTY SUPPLIERS.
You agree to defend, indemnify, and hold harmless Kitchify, its officers, managers, members, owners and affiliates, and their respective officers, directors, managers, employees and agents, from and against any claims, actions or demands including without limitation reasonable legal and accounting fees, resulting from any claims arising out of
(i) any good or products ordered by you or sold to you by Kitchify or its third party suppliers, (ii) any content or other material you provide in your use of Kitchify Products, or (iii) your breach or non-compliance with any of these Terms.
Either party may immediately terminate their relationship with the other party hereto in the event the other party commits a material breach of any provision of these Terms, which is not cured within thirty (30) days of written notice of same from the non-breaching party to the breaching party. It is understood that Kitchify requires up to three (3) weeks to build a custom order guide and that the monthly subscription billing will begin on either the thirty (30) day anniversary of this agreement or the date my custom order guide is delivered to me, depending on which date is sooner. It is also understood that any delays in submitting the required vendor information to Kitchify to build a custom order guide will not extend the anniversary date of the monthly billing date.
Kitchify is entitled to payment from Customer immediately upon acceptance of this agreement. This agreement is non-cancellable. Payment is non-refundable, in whole or in part. In the event of non-payment or delayed payment of more than ten (10) days, customer is subject to accelerated payment without notice.
It is understood that this agreement is for a one-year agreement and all monthly fees will be billed for a twelve (12) month period that will automatically be renewed on the anniversary date unless written notice is provided within at least thirty (30) days in advance of the renewal date.
Customer hereby authorizes Kitchify to charge the credit card listed below for payment for the services in this agreement and certifies that Customer is authorized to sign the form on behalf of the company listed in this agreement. Customer agrees that Kitchify will charge the Customer’s card as and when payment is due and hereby authorizes Kitchify to do so. Customer agrees to provide accurate and updated billing and payment information.
In the event of termination, any Order placed prior to termination shall be filled, you shall pay for same, and all amounts due on your Account shall be settled and paid for by you. It is understood that should payment become delinquent that Kitchify will turn the collections over to a collections agency and the customer’s credit score may be impacted. The customer agrees to indemnify and hold harmless Kitchify and its’ agents for any and all liability regarding repercussions to the customer for turning the customer’s delinquent account over to a collection agency to collect delinquent fees.
GOVERNING LAW; WAIVER OF JURY TRIAL
The rights and the duties of the parties hereunder shall governed by, enforced and construed in accordance with the laws of the State of Colorado, without reference to any choice of laws provision which would apply the law of any other jurisdiction, and consent to the jurisdiction and venue of the State and Federal Courts located in Denver, Colorado to resolve any disputes or claims that arise hereunder or are related hereto. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY SUIT, ACTION, CLAIM OR PROCEEDING REALTING TO THIS RELATIONSHIP OR THE AGREEMENTS CONTAINED HEREIN. EACH PARTY ACKNOWLEDGES THAT IT AND THE OTHER PARTIY HAVE BEEN INDUCED TO AND RELIED UPON THE TERMS HEREOF BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS PARAGRAPH.
Any agreement hereunder or related hereto may be executed by facsimile or other electronic means or click the box approval, and may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Except as may otherwise be stated herein, any provision or section hereof that is declared or rendered unlawful or unenforceable by any applicable court of law or regulatory agency, or deemed unlawful or unenforceable due to a change of law, will not otherwise affect the lawful obligations and other terms that arise hereunder. In the event any provision of this Agreement is declared unlawful or unenforceable, the parties will promptly renegotiate and restore the Terms hereof as near as possible to its original intent and effect.
Notwithstanding the expiration or termination hereof or of the relationship between the parties hereto, the provisions hereunder respecting indemnities, hold harmless obligations and limitations of liability, and the settlement and payment by you on your Account, will remain in full force and effect in accordance with their terms.
All information submitted hereon will be shared by Kitchify with its third party suppliers and, therefore, will not remain confidential. If you do not authorize the sharing of such information by Kitchify with its suppliers, you should not complete this Credit Registration Form and you should not use the Kitchify Application.
Kitchify Universal Credit Application All Rights Reserved Page 8 of 8
WHEREAS, the Undersigned desires to use Middle Market LLC d/b/a Kitchify (“Kitchify”) to provide services to establish third party vendor and supplier accounts in order to utilize the Kitchify application to run pricing searches and for the Undersigned to purchase products for Undersigned’s business;
WHEREAS, the Undersigned desires to authorize Kitchify to act on the undersigned’s behalf for the undersigned to utilize the Kitchify application and the benefits offered thereby.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and agreements hereinafter set forth, the Undersigned and Kitchify hereby agree as follows:
1. Appointment of Agent. The undersigned does hereby irrevocably constitute and appoint Kitchify as its true and lawful agent and authorizes and directs Kitchify to perform any and all actions deemed reasonably necessary by Kitchify for the Undersigned to utilize and enjoy the benefits of the Kitchify application, in the name, place, and stead of the Undersigned, and to take any and all action thereunder where the Undersigned otherwise would have the right, power, or privilege so to do. The above actions Kitchify is authorized to take for the Undersigned shall include, but not be limited to the following: obtaining account and order information and history from third party vendors and suppliers; utilizing the Undersigned’s online login credentials to retrieve pricing and product information; and taking such other actions as may be reasonably necessary for the Undersigned to enjoy the full benefits of Kitchify application in the operation of its business.
2. Acceptance of Appointment. Kitchify accepts the appointment made herein and agrees to perform the actions set forth above, as Kitchify deems reasonably appropriate for the Undersigned to utilize the Kitchify application and site.
3. Indemnification of Kitchify. The Undersigned further agrees to indemnify and save Kitchify and its directors, officers, members, manager, agents and employees (the “Kitchify Indemnified Parties”) harmless against and from all claims by or on behalf of any person arising from the conduct or management of the Undersigned’s Kitchify account or from any work or thing done on behalf of the Undersigned on its Kitchify Account, without limitation. The Undersigned shall indemnify and save Kitchify harmless from and against all costs and expenses incurred in or in connection with any such claim arising as described in the preceding sentence, or in connection with any action or proceeding brought thereon, including reasonable attorneys’ fees and expenses, and upon notice from Kitchify, the Undersigned shall defend any of the Kitchify Indemnified Parties in any such action or proceeding.
4. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws and judicial decisions of the State of Colorado, without reference to choice-of-law principles, except as such laws may be preempted by any federal rules, regulations and laws applicable to Kitchify. The parties hereto expressly acknowledge and agree that any judicial action to interpret or enforce the terms of this Agreement shall be brought and maintained in the Colorado State District Court in and for the City and County of Denver, Colorado.
5. Amendments, Changes and Modifications. This Agreement may not be effectively amended, changed, modified, altered or terminated without the written consent of the parties hereto.
6. Execution in Counterparts. This Agreement may be executed in several counterparts, via electronic signature or click the box internet confirmation, and any such indication of execution or signature hereon shall be treated as a binding original, and all of which shall constitute but one and the same instrument.
7. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the Undersigned, Kitchify, and their respective successors and assigns. Notwithstanding the foregoing, this Agreement may not be assigned by the Undersigned without the prior written consent of Kitchify.
8. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
9. Third Party Beneficiaries. Nothing in this Agreement shall confer any right upon any Person other than parties hereto.
10. Prior Agreements Superseded. This Agreement shall completely and fully supersede all other prior understandings or agreements, both written and oral, between the parties hereto, and in the event of any conflict between the provisions hereof and any other agreements between the parties hereto, the terms of this Agreement shall govern and control over the terms of any conflicting agreement.