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.

1. 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.
2. 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 Master Subscription Agreement between MealSuite, Inc. and Customer (the “Subscription Agreement”).
   2. Performance has the right to terminate, or to cause MealSuite to terminate, Customer’s Subscription Agreement 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 Subscription Agreement.
   3. Performance has the right to terminate, or to cause MealSuite to terminate, Customer’s Subscription Agreement 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.
3. Support and Training.
   Customer may receive implementation, support, and training services related to the Program from Performance or from MealSuite. Such implementation services provided by Performance may include, if requested by Customer and agreed by Performance, data migration support
4. 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.
5. Termination.
   1. Automatic. If the Subscription Agreement 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 Subscription Agreementis terminated in full) or (ii) all Customer facilities affected by such termination (if the Subscription Agreement is terminated in part).
   2. By Performance. Performance has the right to terminate the Agreement and/or the Subscription Agreementin 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 Subscription Agreementis terminated for any reason, Customer shall promptly pay Performance any unpaid Fees then due and owing.
6. 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 Subscription Agreement(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 and/or Performance (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.

7. 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.

8. 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.

9. HIPAA

   In the event Customer is a Covered Entity as defined by the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), Performance and Customer shall enter into a business associate agreement (“Business Associate Agreement”) to cover the use and disclosure of protected health information (“PHI”), as defined under HIPAA. Such Business Associate Agreement shall govern the use and disclosure of PHI under the Program.

10. 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, together with any exhibits and executed supplemental terms and conditions, 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.