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Terms of Service

        Thank you for subscribing to ClearCOGS Services. These Terms of Service ("TOS") are part of the Subscription Agreement, (“Agreement”) between You, the Signed Customer (“Customer”), and ClearCOGS, Inc. ("ClearCOGS”), a PA company having its principal office located at: 6 Stable Court, Collegeville PA 19426). ClearCOGS and Customer will also be referred to each as a "Party" or together the "Parties". These TOS are incorporated into the Subscription Agreement and are effective as of the date last executed (the “Effective Date”).  

        These TOS (as they may be amended from time to time), together with the Subscription Agreement, form a binding agreement (the "Agreement") between You and ClearCOGS and govern Your access to and use of the Services. In the event of any conflict or inconsistency between these TOS and the Subscription Agreement, the order of precedence shall be: (1) these TOS and (2) the Subscription Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that You have the authority to bind such entity and its affiliates to this Agreement. If You do not have such authority or a legal entity does not exist, you are personally responsible for the obligations hereunder. 

        ClearCOGS is the developer of a software-as-a-service predictive forecasting solution catering to businesses in the food and restaurant industries ("Service"). Customer is interested in utilizing the Service for its internal business purposes. ClearCOGS desires to offer on a subscription to allow Customer the right to access and use the Service, in accordance with the following TOS.

1.   Services.

1.1.   Right to Use.  

1.1.1.   Subject to Customer's compliance with the terms of this Agreement, ClearCOGS grants to Customer a limited, non-transferable, non-exclusive, terminable right to for Customer and its employees, agents authorized to use the Service ("Users") to access and use the Service for Customer's internal business purposes, and in accordance with all applicable laws.

1.1.2.   Customer may use the Service with a maximum of 5 Customer stores. Any additional stores may be added to this Agreement for additional fees as set forth in Section 2.1. 

1.2.   Ownership. Customer acknowledges and agrees that ClearCOGS or its licensors will retain exclusive ownership of all rights, title and interest in and to the Service and all intellectual property rights therein, including without limitation, any trademarks, trade names, trade secrets, patents, and copyrights (“ClearCOGS IP”). Customer acknowledges that its use of the Service will not vest in Customer any right, title or interest in or to the Service and all ClearCOGS IP other than the limited rights granted under this Agreement and in the Terms of Service, and all intellectual property rights or other proprietary rights arising from such uses will be owned by ClearCOGS or its respective licensors.

2.   Payment Terms.

2.1.   Incentives. Customer has the right to Termination for Convenience anytime during the first 60 days and receive a refund of any payments made to ClearCOGS within the first 60 days.

2.2.  Payment.  Customer agrees to pay ClearCOGS all fees as set forth within thirty (30) days of Customer's receipt of the applicable invoice. ClearCOGS will invoice the Customer monthly and in arrears. Excluding any applicable Incentives, all payments are non-refundable. All fees are pre-tax, and Customer shall be responsible for all taxes, withholdings, duties and levies arising (excluding taxes based on the real property, personal property, or net income of ClearCOGS). In addition to all other remedies available under these Agreement or at law (which ClearCOGS does not waive by the exercise of any rights hereunder), ClearCOGS is further entitled to suspend its performance, including access to the Service, if Customer fails to pay any amounts when due hereunder.

3. Term of Agreement.

3.1.   Term. This Agreement is effective as of the Effective Date and will continue for a period of one (1) year unless otherwise terminated in accordance with this Section 3 ("Term"). Thereafter, the Term shall automatically renew for successive one-year periods unless either Party provides written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then-current Term. 

3.2.   Termination for Convenience. Either Party may terminate this Agreement by providing thirty (30) days written notice to the other Party. In the event Customer terminates this Agreement pursuant to this Section 3.2, Customer shall pay the full amount of the monthly fee for the month in which termination occurs.

3.3.   Effect of Expiration or Termination. Upon expiration or termination of the Term, Customer and its Users shall cease any and all use of the Service.

3.4.   Survival. Any provision that by the very nature of which should survive will survive any termination or expiration of this Agreement. 

4.   Customer Data.

4.1.   Recipe Data. ClearCOGS shall not use or disclose Customer’s Customer Data pertaining to Customer’s recipes in any manner unless directed by the Customer to do so.

4.2.   Customer Data and Usage Data.  Customer shall provide ClearCOGS any and all data reasonably necessary for ClearCOGS to provide the Service to Customer (“Customer Data”).  Except as set forth in Section 5.2, ClearCOGS may use Customer Data for any purpose and in accordance with applicable law.  ClearCOGS may monitor Customer's and its User's use of the Service and collect, and compile data and information related to Customer's and User's use of the Service including Customer Data ("Usage Data"), and use Usage Data in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service. As between Customer and ClearCOGS, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by ClearCOGS. 

5.   No Warranty.  

5.1.   The Service is provided “as is,” “as available,” and without any warranty of any kind. To the maximum extent permitted by applicable law, ClearCOGS expressly disclaims all warranties of any kind with respect to the Service, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from statute, such as course of performance, course of dealing or usage in trade. ClearCOGS does not warrant or guarantee the quality, completeness, timeliness, or availability of the Service. ClearCOGS does not warrant or guarantee that the Service will be uninterrupted or error-free, that any defects in the Service will be corrected, or that the Service or the servers that make the Service available are free of viruses or other harmful conditions or components.

6.   Limitations on Liability.  

6.1.   To the maximum extent permitted by applicable law, in no event will either Party be liable for any direct, indirect, special, incidental, exemplary, punitive, or consequential loss or damage, arising out of or in connection with the Service or Customer's or its User's access to or use of, or inability to access or use, the same, regardless of the form of action, whether the claim is based in contract, tort (including negligence), strict liability, warranty, or otherwise, and even if a Party has express knowledge of the possibility of the loss or damage.  Without limiting the foregoing, except to the extent arising in connection with a violation of applicable law,  in no event will the aggregate liability of the ClearCOGS or its affiliates, employees, contractors, agents, and licensors arising out of or in connection with this Agreement, or Customer's or its User's access to or use of, or inability to access or use, the Service exceed the Fees paid to ClearCOGS by Customer under this Agreement, even if any remedy provided fails of its essential purpose. 

7.   Marketing.  

7.1.   Customer grants permission to use name, likeness, and logos in ClearCOGS marketing material.

8.   General. 

8.1.   Assignment. Neither Party may assign this Agreement (or any part thereof) without the advance written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such Party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void. 

8.2.   Publicity. Either Party may include the other Party’s company name in a list of customers and/or suppliers without the other Party’s written consent. Any other use of the other Party’s name or logo is prohibited without such other Party’s written consent.

8.3.   Governing Law. This Agreement is governed by the laws of the State of Illinois, without regards to its conflict of laws principles.  Venue is exclusively in the state or federal courts, as applicable, located in Chicago, Illinois.  The Parties expressly agree to the exclusive jurisdiction of those courts.  Any cause of action or other claim brought by Customer with respect to this Agreement must be commenced within one year after the cause of action or claim arises.

8.4.   Independent Contractors. The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

8.5.   Compliance with Laws. Each Party will comply with all applicable international, federal, state, and local laws, orders, rules and regulations with respect its performance under this Agreement. Customer acknowledges that the Service is subject to export restrictions by the United States government and import restrictions by certain foreign governments. 

8.6.   Notice.  Any notice required to be given under this Agreement shall be deemed to have been properly given and effective: (i) on the date of delivery if delivered in person; (ii) three (3) days after mailing if mailed first-class to the respective addresses given in this Agreement; or (iii) on the day the notice is delivered by facsimile or email if proof of receipt is received.

8.7.   Amendments; Waivers; Counterparts. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the Party claimed to have waived. This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will constitute together but one document. 

8.8 .   Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. 

8.9.   Construction and Interpretation. This Agreement will be equally and fairly construed without reference to the identity of the Party preparing this document as the Parties have agreed that each participated equally in negotiating and preparing this Agreement or have had equal opportunity to do so. 

8.10.   Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.   

Rev. 10/12/2022

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