menuMATRIX® PROGRAM TERMS AND CONDITIONS

The menuMATRIX® program (the “Program”) utilizes software products (the “Software”) and electronic manuals, files and technical materials (the “Documentation”) licensed to Reinhart Foodservice, L.L.C. and certain of its subsidiaries (collectively, “Reinhart”) by MENUgistics, L.L.C. (“Provider”). The following terms and conditions (these “Terms and Conditions”) shall govern Customer’s use of the Program, the Software and the Documentation:

  • The Program.
    • Access. Subject to the terms and conditions set forth in the menuMATRIX® Service Agreement between Reinhart and Customer including, without limitation, these Terms and Conditions (the “Agreement”), Reinhart hereby grants to Customer a revocable non-exclusive, non-transferrable and non-sublicensable license to use and access the Program for the sole purpose of supporting the internal menu management requirements of Customer through its authorized employees (the “Authorized Users”). Reinhart shall provide Customer with access to and use of the Program for the Access Level and for up to the number of Authorized Users set forth in the Agreement.
    • Requirements and Use.
      • Customer shall permit only Authorized Users to access or otherwise use the Program, and all such access shall be in accordance with the Agreement. Customer will be responsible for the use of passwords by its employees and shall give prompt notice to Reinhart if any employees (including former employees) are no longer authorized to access the Program.
      • Customer may access and use the Program and the Software solely in its capacity as a customer of Reinhart.
      • Customer shall use all reasonable efforts to implement and maintain appropriate security procedures to prevent damage to the Program or the loss or corruption of any data transmitted by means of the Program. Customer warrants that it shall maintain reasonably up-to-date versions of malware protection.
    • Service Level; Force Majeure. Reinhart shall use commercially reasonable efforts to provide access to the Program seven days a week and 24 hours a day, except for planned downtime. Reinhart shall not be liable for any loss, damage or expense from any failure of performance caused by circumstances beyond Reinhart’s control including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strike or labor difficulty or Internet service provider failures or delays.
  • Restrictions. Except as expressly authorized herein, Customer shall not engage in, cause or permit any: (a) copying, reproducing, transmitting, distributing, modification, or creation of derivative works of the Program, the Software or the Documentation; (b) reverse engineering, de-compilation, translation, disassembly, reconstruction, identifying discovery or other translation of the source code or any portion of the Software, the Documentation or the Program; (c) sublicensing, distribution, disclosure, rental, leasing, assigning or transfer to any third party of the Program, the Software or the Documentation; (d) use of the Program, Software or Documentation in violation of any applicable federal, state or local laws or regulations; or (e) third party to access or use the Program, the Software or the Documentation.
  • Ownership. The Program, the Software, all updates, modifications and new releases of the Program or the Software (“Updates”) and the Documentation and all permitted copies thereof are and shall remain the sole and exclusive property of Reinhart and/or Provider, as the case may be. Customer shall not obscure, remove or otherwise alter any identification or notices of Reinhart’s and/or Provider’s proprietary rights, including copyright notices, from any part of the Program, the Software, the Updates, the Documentation or any output derived therefrom. Customer shall affix to all full or partial copies made by the Customer of the Program, the Software, the Updates and the Documentation all copyright and other proprietary notices contained in or on the original, as delivered to Customer. There are no implied rights, and all other rights not expressly granted herein are reserved. Reinhart, on behalf of itself and Provider, reserves all patent, copyright, trade secret, trademark, service mark, proprietary, intellectual and other rights whatsoever in and to the Program, the Software, the Updates, the Documentation and in and to all other information as may be provided to or which may otherwise become available to Customer in connection with any transaction hereunder. Nothing in the Agreement shall grant Customer any license or other right, title or interest in or to any patents, copyrights, trade secrets, trademarks, service marks, confidential or proprietary information, intellectual property or other rights or properties whatsoever of Reinhart and/or Provider.
  • Invoicing and Payment Terms.
    • Invoices. Reinhart will invoice Customer for license and support fees in the amounts set forth in the Agreement. The terms for payment of such invoice will be the same terms that apply to other purchases Customer makes from Reinhart.
    • Authorized Users. No refund or credit shall be issued in the event that less than all of the Authorized Users access or otherwise use the Program during the Term (as defined in the Agreement).
  • Termination.
    • By Reinhart. Reinhart may terminate the Agreement as follows:
      • without cause, upon thirty (30) days’ prior written notice to Customer;
      • immediately, if Customer fails to make a payment at the time required under the Agreement and such failure continues for ten (10) days after written notice from Reinhart; or
      • 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 of similar proceedings (whether by or against Customer), or dissolution or liquidation.
    • By Customer. Customer may terminate the Agreement as follows:
      • without cause, upon thirty (30) days’ prior written notice to Reinhart; or
      • immediately upon Reinhart’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 of similar proceedings (whether by or against Reinhart), or dissolution or liquidation.
    • Effect of Termination. If the Agreement is terminated as provided in this paragraph 5, Customer shall not be entitled to a refund of the initial set-up fee or any monthly fees payable to Reinhart for the period prior to the effective date of termination. Customer agrees that if Reinhart terminates the Agreement for cause, the Customer shall pay any unpaid fees covering the remainder of the Term then in effect. Termination of this Agreement shall be in addition to, and not in lieu of, other remedies available to the terminating party under this Agreement. Upon any termination, all access and other rights granted herein shall immediately terminate and Customer shall immediately and permanently cease all access to or other use of the Program. Reinhart shall retain the customer content for a period of thirty (30) days after expiration or termination of the Agreement. Customer may request that Reinhart conduct a mass export of the customer content, and Reinhart hereby agrees to provide such export services through the format and method selected by Reinhart in its sole discretion, and Customer hereby agrees to pay Reinhart at its then current rates on a time and materials basis for any such export of data. After thirty (30) days, Reinhart may erase, delete and destroy all customer content without notice or further liability or obligation to Customer.
  • Warranties.
    • Reinhart Warranties. So long as Customer is paying the fees and charges as and when due under the Agreement, Reinhart warrants to Customer that the services described in paragraph 1 of these Terms and Conditions shall be provided to Customer in a professional manner consistent with industry standards, and that the functionality of the services shall not be materially decreased during the Term.
    • Remedies for Breach of Warranty. The remedies provided in this clause (b) shall be Customer's sole and exclusive remedies and Reinhart’s sole and exclusive liabilities for a breach of warranty claim by Customer. If Customer believes that Reinhart has not provided a service as warranted above, then Customer shall provide written notice to Reinhart of any deficiencies within twenty (20) days of provision of the service. Reinhart may perform the services again at no additional charge to Customer or, at its option, provide an appropriate credit for any service that was not delivered as warranted.
    • Disclaimer of All Other Warranties.
      • Customer hereby acknowledges and agrees that the menus provided in accordance with the Agreement and the Program have been prepared only as general nutritional guides and are not warranted or guaranteed for any application or purpose. All menus are to be reviewed, modified (if necessary) and approved by a licensed dietitian on Customer’s staff prior to implementation by Customer.
      • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN AS EXPRESSLY SET FORTH HEREIN, REINHART, ON BEHALF OF ITSELF AND PROVIDER, DISCLAIMS AS TO CUSTOMER AND ITS AFFILIATES, PARTNERS AND SUPPLIERS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
      • Reinhart makes no warranty that the Program will meet Customer’s requirements or that the Program will be uninterrupted, timely, secure or error free, nor does Reinhart make any warranty as to the results that may be obtained from the use of the Program, or as to the accuracy or reliability of any information obtained through the Program, or that defects in the Program will be corrected.
      • Customer understands and agrees that any information, content, data or other material downloaded or otherwise obtained through or from the Program is obtained at Customer’s own discretion and risk, and that Customer will be solely responsible for any damage to Customer’s computer system or any loss of data that results from the download of such material or data.
      • No advice or information, whether oral or written, obtained by Customer from Reinhart or from the Program shall create any warranty not expressly stated herein.
  • Disclaimer of Liability/Limitation of Liability. NEITHER REINHART NOR PROVIDER SHALL BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO THE OPERATION OR USE OF THE PROGRAM INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST CUSTOMER BY A THIRD PARTY, EVEN IF REINHART AND/OR PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY REINHART TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND REINHART’S REASONABLE CONTROL; (C) DAMAGES DUE TO INACCURACIES IN DATA CONTAINED IN OR DERIVED BY THE PROGRAM AND/OR THE SOFTWARE; OR (D) CLAIMS MADE SUBJECT OF A LEGAL PROCEEDING AGAINST REINHART AND/OR PROVIDER MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, REINHART’S AND/OR PROVIDER’S LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY REINHART UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.
  • Indemnification.
    • By Reinhart. If a third party claims that the Program infringes or misappropriates any patent, copyright, or trademark enforceable in the United States, Reinhart will defend, indemnify and hold harmless Customer against that claim at Reinhart’s expense, provided that Customer promptly notifies Reinhart in writing of the claim, allows Reinhart to control the defense of such claim, and cooperates with Reinhart in its defense. If such a claim is made, Customer agrees to permit Reinhart in its discretion to (i) procure the necessary rights to enable Customer to continue to use the Program, or (ii) modify or replace the Program to eliminate the infringement. If Reinhart determines that none of these alternatives is commercially reasonable, Customer agrees upon Reinhart’s request to return, or cease accessing or otherwise using, the infringing Program, and Reinhart agrees to provide Customer a credit equal to the depreciated value for the Program determined in accordance with generally accepted accounting principles. Notwithstanding the foregoing, Reinhart has no obligation of indemnification under this paragraph 8(a) for any claim of infringement caused by Customer's modification of the Program or its combination, operation, or use with any product, data, or apparatus not specified or provided by Reinhart. THIS PARAGRAPH 8(A) STATES REINHART’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
    • By Customer. Customer will defend, indemnify and hold harmless Reinhart,Provider, and their collective employees, officers and directors, suppliers, successors, affiliates, agents and assigns (collectively the “Indemnitees”) from and against any claims, damages, losses, liability and expenses (including, without limitation, attorneys’ fees and costs) incurred by any Indemnitee and arising out of or related to: (i) the infringement of patents or other proprietary rights arising from the combination of or use of any device, system, third party application or service in connection with the Program by Customer; (ii) any injury, death or damage arising in connection with the presence, use or non-use of the Program by Customer; (iii) any negligence or any other act or omission by Customer; (iv) Customer’s marketing and/or use of the Program, the Software, and any other goods or products; (v) any Authorized User’s use of the Program or the Software; and/or (vi) any breach of warranty, misrepresentation or non-fulfillment of any agreement on the part of Customer under this Agreement.
  • Confidential Information. “Confidential Information” means any material, data, or information in whatever form or media that is provided or disclosed to the other party(s), except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to Customer or its employees, agents, or representatives prior to such disclosure or is independently developed by Customer or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by Customer or its employees, agents, or representatives from a third party without obligations of confidentiality. Confidential Information shall include the following categories of information, whether disclosed orally or not marked as confidential: the Program, Software, Updates, Documentation, network configurations, network architecture, services rendered by Reinhart and/or Provider to Customer, financial and operational information, and other matters relating to the operation of Reinhart’s and Provider’s businesses, including information relating to actual or potential customers and customer lists, customer usage or requirements, business and customer usage forecast and projections, accounting, finance or tax information, and pricing information. Customer shall exercise the same degree of care and protection with respect to Confidential Information that it exercises with respect to its own confidential information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any party to have access to any Confidential Information. Notwithstanding the above, Customer may disclose Confidential Information to the extent required by law (including court order or subpoena), provided that such disclosure is made in accordance with the following terms: If Customer becomes aware of any unauthorized use or disclosure of Confidential Information, Customer shall promptly and fully notify Reinhart of all facts known to it concerning such unauthorized use or disclosure. In addition, if Customer or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information, Customer shall not disclose the Confidential Information without providing Reinhart at least twenty-four (24) hours prior written notice of any such request or requirement so that Reinhart and/or Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. Notwithstanding the foregoing, Customer shall exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with Reinhart and/or Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal.
  • U.S. Government Restricted Rights. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, the software provided in connection with this Agreement (including, without limitation, the Software) are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202, FAR section 12.212 and other sections, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and Conditions and shall be prohibited except to the extent expressly permitted by these Terms and Conditions. Any technical data provided that is not covered by the above provisions shall be deemed “technical data-commercial items” pursuant to DFAR section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR section 227.7015(b).
  • Export Law. Customer agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Program, the Software, Confidential Information and media to assure that they are not exported, imported or used in violation of law or applicable regulation.
  • Miscellaneous.
    • Notices. All notices, requests, consents, claims, demands, waivers and other communications under the Agreement shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email of a pdf document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or such other address for a party as shall be specified in a notice given in accordance with this paragraph 12(a):
      If to Customer:  To the address set forth on the Agreement
      If to Reinhart:    Reinhart Foodservice, L.L.C.
                             6250 N. River Road, Suite 9000
                             Rosemont, IL 60018
                             Attention: General Counsel
                             Email: RFSLegal@rfsdelivers.com
    • Governing Law. The Agreement shall be governed by and construed in accordance with the internal laws of the State of Iowa, without reference to conflict of law principles. In no event shall the Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.
    • Legal Fees. In the event that any legal action is required in order to enforce or interpret any of the provisions of the Agreement, the prevailing party in such action shall recover all reasonable costs and expenses, including attorney's fees, incurred in connection therewith.
    • Headings. Paragraph headings contained herein are provided for convenience only and shall not govern, limit, modify, or affect the scope, meaning, or intent of the provisions of these Terms and Conditions.
    • Severability. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    • Entire Agreement. The Agreement, including these Terms and Conditions, shall constitute the sole and entire agreement of the parties to the Agreement with respect to the subject matter contained in the Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of a conflict between the Agreement and any distribution agreement between Customer and Reinhart, the terms of the Agreement shall control.
    • Waiver. No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege under the Agreement preclude any other or further exercise thereof or the exercise of any right, remedy, power or privilege.
    • Customer; Successors and Assigns. As used herein, “Customer” shall mean the Customer named in the menuMATRIX® Service Agreement between Reinhart and Customer and shall include the Customer’s subsidiaries and affiliates. Customer may not assign any of its rights or obligations hereunder without the prior written consent of Reinhart. Any purported assignment in violation of this paragraph (h) shall be null and void. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
    • Arbitration. Any unresolved dispute, controversy or claim arising out of or relating to the Agreement (each a “Dispute” and collectively, the “Disputes”) shall be settled by binding arbitration. The expedited procedures of the Commercial Arbitration Rules (“Commercial Rules”) of the American Arbitration Association (“AAA”) in effect on the date that the arbitration is initiated as provided herein shall govern the procedure for the arbitration. The arbitration shall be conducted by a single arbitrator selected by the parties or, if they cannot agree on that arbitrator, by the appointment of an arbitrator by the AAA. The arbitrator selected by the parties or the AAA must be a person with extensive knowledge in the subject matter of the Dispute(s) and at least five (5) years of experience in arbitrating substantially similar issue(s) as those submitted to arbitration hereunder. In making an award, the arbitrator shall apply and follow the substantive laws of the State of Iowa applicable to contracts and agreements made entirely in that State, without regard to conflict of laws principles, as they exist on the date the arbitration demand is filed, and to the extent applicable, the Federal Arbitration Act found at 9 USC§1, et. seq.
    • Survival of Covenants. The provisions of paragraphs 2, 3, 6, 7, 8 and 9 of these Terms and Conditions shall survive the termination of the Agreement for any reason.