WHEREAS KITCHEN MATE INC. ("KitchenMate") is a provider of an innovate food solution comprising of Unattended Fresh Vending Services, Web Application, Mobile App (“KitchenMate App”), Equipment and Food Products that are delivered to the Partner;
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties agree as follows:
In this Agreement the following terms have the following meanings:
“Agreement” means this Commercial Partnership Agreement, including the recitals hereof and all schedules attached hereto, as the same may be supplemented, amended, restated or replaced from time to time in writing;
“Business Days” mean any days (other than a Saturday, Sunday or public holiday) on which banks are open for business in the city of Toronto, Ontario, Canada;
“Confidential Information” has the meaning set forth in Section 5.1;
“Customers” means customers that are referred to KitchenMate through the Partner. They may include, but are not limited to the Partner’s staff, contractors, visitors or other community members. These Customers can also be defined by those who have used the KitchenMate App or who have seen KitchenMate’s marketing materials distributed or disseminated on the the Partner campus or through its website.
“Equipment” means the KitchenMate Kiosk which may include Smart Cooker(s), Smart Fridge(s), Tower(s) and any other accessories that enable and connect the KitchenMate Kiosk;
“Food Products” means ready-to-heat meals, curated ready-to-eat meals, snacks, baked goods or curated cold beverages
“Indemnified Parties” has the meaning set forth in Section 8.1;
"Order Form" means the form signed by the Partner with the specific details of a particular Partner Site;
"Partner Site" means the building in which the Equipment is to be situated per the terms of the Order Form.
“Parties” means both the Partner and KitchenMate collectively, and “Party” means either one of them;
“Person” shall be broadly interpreted and includes any individual, partnership, limited partnership, joint venture, syndicate, sole proprietorship, corporation, with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body, agency, governmental authority and any entity recognized by law;
“Services” has the meaning set forth in Section 3.1;
“Term” has the meaning set forth in Section 6.1; and
“Unattended Fresh Vending Services” means the provisioning, merchandising and selling of fresh Food Products via cashless self-serve technology;
Headings and Numbers
The division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Words used in the singular include the plural and vice versa and words importing gender include all genders. “Hereof”, “hereto” and “hereunder” and similar expressions mean and refer to this Agreement and not to any particular section or paragraph. References herein to "Article", "Section", or "Schedule" refer to the applicable article, section or schedule of this Agreement.
This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (excluding any conflict of laws rule or principle that might refer such interpretation to the laws of another jurisdiction). Each of the Parties hereby irrevocably attorns to the jurisdiction of the courts of the Province of Ontario for all matters relating to the subject matter of this Agreement.
Any waiver of, or consent to depart from, the requirements of any provision of this Agreement shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of either Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
Unless otherwise indicated, all dollar amounts referred to in this Agreement are in Canadian currency.
The Partner represents and warrants that:
a) it has the authority to enter into this Agreement and carry out its obligations hereunder;
b) this Agreement has been duly executed by the Partner and constitutes its legal and binding agreement;
c) it has the right to perform all of its obligations in this Agreement;
d) all of the Partner’s obligations will be carried out by qualified personnel and all work will be performed in a professional manner;
e) the Partner has no title to or interest in Equipment or Food Products;
KitchenMate represents and warrants that:
a) it has the authority to enter into this Agreement and carry out its obligations hereunder;
b) this Agreement has been duly executed by KitchenMate and constitutes its legal and binding agreement;
c) KitchenMate has not granted and shall not grant any rights or licenses and has not entered into and shall not enter into any agreement, either written or oral, that would conflict with the terms, obligations or licenses under this Agreement;
d) KitchenMate shall provide the Food Products in a professional manner, in compliance with the Partner’s requirements and instructions with care, skill and diligence and in accordance with the applicable industry standards;
e) The Food Products supplied by KitchenMate to the Partner under this Agreement shall be fit for the Partner’s intended use and shall comply with all applicable laws and regulations including but not limited to the food product safety regulations and all appropriate labeling requirements and dietary restrictions mentioned in applicable law.
The representations and warranties in Sections 2.1 and 2.2 shall survive the termination or expiry of this Agreement without limit. All other representations and warranties made by the Parties shall survive for a period of one (1) year from the date of termination or expiry of this Agreement.
a) KitchenMate shall install the Equipment required to maintain and operate the Services. KitchenMate shall install the Equipment and ensure that the Equipment is at all times in excellent condition and working order, in accordance with industry standards.
b) KitchenMate will provide for sale Food Products in a high-quality, professional manner with care, skill and diligence and in accordance with the applicable industry standards.
c) The Food Products are the property of KitchenMate until such time it is successfully paid for by Customer directly on the KitchenMate mobile application or using an alternative payment method.
d) KitchenMate will deliver Food Products to the Partner at least once per week, for purchase by the Customers. KitchenMate will remove any expired Food Products from the refrigerator(s) at the Partner’s site in a timely manner.
e) KitchenMate shall make available, maintain and provide periodic updates to the KitchenMate Application and ensure it is in working order.
f) KitchenMate shall provide reports on the Food Product consumption to the Partner (the “Program Administrator(s)”). Additionally, KitchenMate shall make available to Program Administrators, where applicable, engagement tools for Customers.
g) KitchenMate shall provide training to the Program Administrators on the overall Service and Equipment.
h) KitchenMate agrees to provide the Partner with a designated Account Manager as well as a point of contact for live chat and/or telephone support during standard business work days and hours between Monday to Friday from 8am to 6pm.
i) KitchenMate agrees to provide Customers with live chat, email and/or telephone support during standard business work days and hours between Monday to Friday from 8am to 6pm. KitchenMate will also provide self-serve resources for Customers outside of standard business hours.
KitchenMate requires at least 30 Business Days from the execution of the Order Form for the Service to the time the Equipment is installed at the Partner site. During that time and on an ongoing basis, KitchenMate and the Partner will collaborate in good faith to communicate the Services to prospective Customers, and any other relevant stakeholders to encourage Customer registration on the KitchenMate App.
KitchenMate will be responsible for the design and production of communication materials (including but not limited to posters, flyers, videos, cards, banners and digital slides etc).
KitchenMate will be responsible for the design and production of required training materials.
The Partner will be responsible for communicating to prospective Customers based on key messages provided by KitchenMate, including, but not limited to, internal memorandums, emails, distribution of physical and digital assets. The Partner will have an opportunity to review the materials created by KitchenMate prior to their dissemination in appropriate and agreed-upon areas.
KitchenMate will have an opportunity to review the materials created by the Partner prior to their dissemination.
Implementation cost in the Order Form covers equipment installation, onboarding and marketing kit, Partner account opening and configuration, and administrator onboarding (collectively, “Implementation Items”) at the Partner’s site.
KitchenMate shall pay the Partner a percentage of the total revenue as agreed upon in the Order Form, after discounts and refunds, generated from Food Products purchased at the Partner’s site. The revenue share shall be paid on a quarterly basis with a NET30 payment term following an invoice, to a mutually agreed upon payment source. Conditions on revenue share will apply.
a) The Partner shall provide a reasonably secure space for the Equipment in an approved location as indicated in the Order Form.
b) The Partner shall provide trash and recycling removal, extermination services and safe electrical power to permit the sanitary and unobstructed operation of the Services.
c) The Partner shall provide electricity and keep the kiosk plugged in and powered on at all times.
d) The Partner shall provide KitchenMate employees or its designated contractors the necessary access, and if required, necessary security access, and sufficient time to properly deliver Food Products and service and maintain Equipment.
e) The Partner shall provide support, as needed, to ensure complete setup of the Equipment and Services.
f) The Partner shall not move or change the physical location of the KitchenMate products or attempt to modify, fix or service the Equipment unless agreed to in writing by KitchenMate.
g) The Partner shall be responsible for any damage to the Equipment caused by the willful or negligent acts or omissions of the Partner.
h) The Partner shall promptly notify KitchenMate of any Equipment maintenance issues or power disruption to utilities in the premises when the Partner becomes aware of these issues.
i) The Partner shall support KitchenMate’s efforts to deter theft, damage or negligent acts against the Equipment or Food Products by providing a reasonably secure area within the promises for the placement of the Equipment and by collaborating with KitchenMate to communicate key messages to the Customers and prospective Customers.
j) The Partner shall promptly notify KitchenMate of any material feedback it receives from the Customers regarding Services or Food Products and shall direct any feedback or inquiries regarding the Services or Food Products to the designated KitchenMate Account Manager.
k) The Partner’s designated Program Administrator shall meet with, virtually or physically, with their designated KitchenMate Account Manager at least once every three months to review program performance and share feedback
l) The Partner shall promptly notify KitchenMate of any events that may materially affect the sales of Food Products, including but not limited to closure of the premises, power outages, prolonged building evacuations etc. Frequency communications between the Partner and the dedicated Account Manager is encouraged.
m) The Partner shall provide such other items which are expressly mentioned in the Order Form.
Each Party (the “Recipient”) that acquires, receives or otherwise becomes aware of any of the trade secrets, plans, processes, source code and confidential information of the other Party (the “Owner”), including the terms of this Agreement or an Order Form (collectively, the “Confidential Information”) shall protect and keep confidential and shall not, at any time, directly or indirectly, use or disclose any Confidential Information (except as required to perform its obligations or to exercise its rights under this Agreement). The obligations hereunder shall not apply to any information:
a) which at the time of disclosure is readily available to the public through no breach of this Agreement by the Recipient;
b) which is lawfully and in good faith obtained by the Recipient from an independent third party without breach of this provision, as shown by documentation sufficient to establish the third party as a source of the information, and not obtained by the third party from the Owner;
c) required to be disclosed pursuant to court order or other legal compulsion, provided, however, that the Recipient shall, prior to any such disclosure, provide the Owner with sufficient written particulars to enable the Owner to seek a protective order or other appropriate remedy; and upon request of the Owner, the Recipient shall consent to and assist the Owner in obtaining any such protective order or other appropriate remedy that the Owner may seek for the purpose of preventing disclosure of the Confidential Information; or
d) that is disclosed with the written consent of the Owner or as required pursuant to the express terms of this Agreement.
KitchenMate, for the purposes of this Agreement, agrees to abide by and be in compliance with The Personal Information Protection and Electronic Documents Act (PIPEDA). Notwithstanding the foregoing, the Partner will not share any personal information or personal health information with KitchenMate. Persons requesting services from KitchenMate may be required to disclose their personal information to KitchenMate for the commercial purposes of KitchenMate and persons doing so, do so at their own risk. The Partner assumes no liability for the disclosure of personal information made by individuals to KitchenMate. No relationship with the Partner is either expressed or implied by a person’s disclosure of personal information to KitchenMate or their use of any promotional code or coupon which may be associated with the Partner’s promotion of KitchenMate.
This Agreement shall be from the date of the contract signing until the term end date on the Order Form (the "Term").
Upon expiration of the Term, the term of this Agreement will automatically renew for additional successive one month terms, unless this Agreement is terminated earlier under the terms of this Agreement, or Order Form indicates it does not auto renew. Parties have the right to review and renegotiate the terms and conditions of this Agreement prior to renewal in good faith.
This Agreement may be terminated by a Party:
a) upon thirty (30) days’ notice in writing to the other Party; or
b) upon the occurrence of an Event of Default of the other Party.
Any one or more of the following constitutes an Event of Default (“Event of Default”) of a Party for the purposes of this Agreement:
a) if that Party defaults in the performance of, or is not in compliance with, any material provision of this Agreement and such default continues for ten (10) Business Days after notice has been given by the other Party specifying the default or non-compliance and requiring the other Party to remedy it;
b) if that Party does not generally pay its debts as they become due or admits in writing its inability to pay its debts generally or otherwise acknowledges its insolvency or is deemed for the purposes of any applicable law to be insolvent or voluntarily suspends transaction of its usual business or any action is taken by such Party in furtherance of any of the aforesaid purposes or if such Party takes any action pursuant to the Winding-Up Act (Canada) or any statute or statutory provision of similar intent or effect applicable to such Party;
c) if that Party files a voluntary petition in bankruptcy or insolvency or petitions for reorganization under the Bankruptcy and Insolvency Act (Canada) or similar legislation of any relevant jurisdiction (and such petition is not dismissed or stayed or withdrawn within ten (10) days);
d) if that Party consents to an involuntary petition in bankruptcy or if a receiving order is given against it under the Bankruptcy and Insolvency Act (Canada) or similar legislation of any relevant jurisdiction (and such petition is not dismissed or such order remains in force, undischarged or unstayed, for a period of ten (10) days);
e) if any application is made with respect to that Party under the Companies' Creditors Arrangement Act (Canada) or similar legislation (including any statute or statutory provision of similar provision or effect applicable to such Party) or if there is entered an order, judgment or decree by a court of competent jurisdiction, upon the application of a creditor, approving a petition seeking reorganization or appointing a receiver, trustee or liquidator of all or a substantial part of that Party’s assets and such order, judgment or decree continues in effect for a period of thirty (30) consecutive days; or
Each Party acknowledges that an Event of Default may cause significant damage or harm to the other Party and that damages and other remedies at law will not be a sufficient remedy.
Within thirty (30) days of expiry of the Term or the termination of this Agreement in accordance with the provisions hereof, each Party shall:
a) cease use of any promotional materials bearing the name of the other Party;
b) remove and return all Equipment to KitchenMate on a mutually agreeable timeline;
c) make no further or other use of the name of the other Party; and
d) in no way suggest or imply that the Party has a continuing relationship with the other Party;
Thirty (30) days prior to the expiration of the Term of Termination Date of this Agreement,
e) KitchenMate and the Partner will discuss in good faith and mutually agree upon a timeline and communication plan for Customers regarding the termination of the Agreement;
f) Partner Program Administrators will provide written feedback and recommendations to KitchenMate regarding the KitchenMate Products and Services;
g) KitchenMate shall, with approval from the Partner, conduct activities that allow for the collection of feedback from a limited selection of Customers (for example: digital survey, in-person or virtual interviews etc).
The exercise of any right to terminate this Agreement in accordance with the terms hereof, shall not limit the terminating Party’s other rights or remedies under this Agreement, at law or in equity.
No Party shall by reason of the termination of this Agreement be relieved of any obligation or liability towards any other Party accrued under this Agreement before termination, and all those obligations and liabilities shall remain enforceable until they are fully satisfied or by their nature expire. All obligations of the Parties which expressly or by their nature survive termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding termination until they are fully satisfied or by their nature expire.
Notwithstanding anything contained in this Agreement, no Party shall be liable for any failure or delay on its part to perform any of the terms, conditions, covenants or obligations of this Agreement to the extent that such failure or delay is the result of a cause beyond its reasonable control including such things as unavailability of material, equipment, utilities, services, an act of God, a fire, an act of the public enemy, an act of Her Majesty in her sovereign capacity, laws, a flood, a quarantine restriction, an epidemic, a labour dispute, a riot, a civil commotion, vandalism, malicious mischief or other similar cause beyond its control and not avoidable by the exercise of reasonable foresight (excluding the inability to pay for the performance of such obligation) and which occurs without the default or negligence of the Party seeking relief. The Party being delayed shall be entitled to extend the time for fulfilment of such obligation by a time equal to the duration of such delay and the other Parties shall not be entitled to any compensation for any loss or inconvenience occasioned thereby. The Party delayed shall, however, use its best efforts to fulfill the obligation(s) in question as soon as reasonably possible.
Subject to 7.3 and 8.1, to the maximum extent permitted under applicable law, in no event will either Party be liable to the other Party for any: (I) special, exemplary, punitive, indirect, incidental or consequential damages; (II) lost or loss of (i) savings, (ii) profit, (iii) data, (iv) use, or (v) goodwill; (iii) business interruption; or (iv) costs for the procurement of substitute products or services; arising out of or in any way connected to this Agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence), or otherwise, and even if notified in advance of the possibilities of such damages.
Subject to 7.3 and 8.1, in no event will the total aggregate liability of either Party to each other in connection with or under this Agreement, whether in contract, tort (including negligence), or otherwise, exceed $50,000. For greater certainty, the existence of one or more claims under this Agreement will not increase this maximum liability amount.
The limitations stated in Section 7.1 and 7.2, will not apply to limit:
a) death, sickness, disease or injury of any kind, of any person (including any employee, agent or representative of Partner or KitchenMate), to the extent caused by the gross negligence or wilful misconduct of a Party or its personnel, representatives, agents or subcontractors;
b) any payment obligations of Partner under this Agreement; or
c) either Party’s or its personnel’s gross negligence, wilful misconduct or fraud.
KitchenMate agrees to defend, indemnify and hold harmless the Partner and its affiliates, directors, officers, employees, agents and subcontractors (collectively, in this Section 8.1, the “Indemnified Parties”) from any and all liability, loss, costs, damages and expenses (including legal, expert and consultant fees), causes of action, actions, claims, demands, lawsuits or other proceedings, by whomever made, sustained, incurred, brought or prosecuted, which any of the Indemnified Parties may incur, suffer or become liable for as a result of, or in connection with the provision of the Services in connection with the Agreement, unless solely caused by the negligence or wilful misconduct of the Partner. The Partner shall have the right to act as agent on behalf of the Indemnified Parties in enforcing any indemnity under this Agreement.
a) KitchenMate shall obtain and maintain comprehensive general liability insurance during the Term of this Agreement with coverage applicable in the jurisdictions of the Partner Site, from time to time and in Ontario at all times in an amount of not less than five million ($5,000,000) per occurrence, with an umbrella coverage no less than five million ($5,000,000) per occurrence or in such other amounts as may be agreed to by the Parties, acting reasonably, having regard to the risks inherent in their arrangements at any time. Such policies shall contain a cross-liability clause and the Partner shall be named as an additional insured on all such policies.
b) KitchenMate shall provide copies of all such insurance policies to the Partner from time to time upon the Partner’s request therefore, acting reasonably, and KitchenMate shall provide the Partner with thirty (30) days prior notice of the termination of any such policy.
This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement in whole or in part except with the prior written consent of the other Party.
Each Party will take all necessary actions, obtain all necessary consents, file all necessary registrations and execute and deliver all necessary documents reasonably required to give effect to this Agreement.
If any part of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid, it will, be severed from the rest of this Agreement, which shall continue in full force and effect, so long as the economic or legal substance of the matters contemplated hereby is not affected in any manner materially adverse to either Party.
This Agreement may be executed in any number of counterparts. Each executed counterpart shall be deemed to be an original. All executed counterparts taken together shall constitute one agreement. Receipt of a facsimile version of an executed signature page by a Party shall constitute satisfactory evidence of execution of this Agreement by such Party.
Version 1.1
Last updated: Jul 5, 2023
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