These Otter Food Purchase Rebate Program Terms and Conditions (“Terms”) by and between ________, (“we,” or “us”) and the party accepting the Terms (“you” or “your”) are made effective as of the earlier date you click to accept, or where applicable, the date you accept via signature or clickthrough (the “Effective Date”). These Terms, any descriptions provided to you or as otherwise displayed to you within the Program and any exhibits hereto (together, the “Agreement”) govern your participation in the Otter Food Purchase Rebate Program. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN SECTION 11.
THE PROGRAM
a. Program. We have partnered with a group purchasing organization, FoodBuy LLC (the “GPO”), pursuant to which you are eligible to participate in the group purchasing program managed by us in collaboration with the GPO (the “Program”). Under the Program, we will collaborate with the GPO to identify and facilitate discounts, rebates, and other financial incentives (collectively, “Rebates”) for which you may be eligible based on your invoices, purchase orders, price quotes, sales data, and other relevant purchasing data (“Purchasing Data”) related to your transactions with Third Party Vendors that participate in the Program. Claims for all identified Rebates will be submitted by the GPO in accordance with the Agreement and the applicable terms and procedures of the relevant Rebate programs. “Third Party Vendor” means third party distributors, suppliers, wholesalers, and other vendors or service providers that are eligible for a Rebate under the Program. You may select one or more Third Party Vendors under the Program subject to their participation and ongoing eligibility under the Program. We, and the GPO, reserve the right, in our sole discretion, to modify, suspend, or revoke the eligibility of any Third Party Vendor under the Program at any time, with or without prior notice to you.
b. Rebates. For each successfully collected Rebate, we will apply the Net Rebate Amount (defined below) as a credit on your invoice for licensee fees due and payable under the KSA and as further set forth in Section 2 below. You acknowledge and agree that we do not make, and expressly disclaim, any representation, warranty, or guarantee regarding the availability, eligibility, timing, or amount of a Rebate. The review, approval, and payout of Rebates are solely within the discretion of the GPO and subject to their terms, conditions, and policies. We make no representation, warranty, or guarantee that any Rebate will be accepted or paid by the GPO.
c. Kitchen Services Agreement. “KSA” or “Kitchen Services Agreement” means an Order Form(s) for kitchen services, along with the kitchen services terms and conditions, entered into between you and us. You acknowledge and agree that (i) the KSA exclusively governs your access to and use of the designated kitchen space and related services, and (ii) nothing in this Agreement shall modify, amend, or be construed to affect the terms or enforceability of the KSA. Upon termination of the KSA for any reason, this Agreement shall automatically terminate and be of no further force or effect.
d. Rebate Reversals and Errors. You agree to fully assist us in the submission, processing, and resolution of any applicable Rebate claims, including providing all additional documentation that we may reasonably request and responding promptly to our or the GPO’s requests. We are not responsible for Rebates that expire due to delays, ineligibility, or your failure to provide timely and complete documentation or cooperation. Rebates not claimed, collected, or resolved within the timeframe set by the GPO due to your failure or noncompliance with the terms stated herein will be deemed expired and forfeited, and no payment will be made to you for such expired or forfeited Rebates. In the event that we remit any Rebate amount or other related amounts to you in error, or if any Rebate is later denied, reversed, or clawed back by a GPO due to inaccurate, incomplete, or otherwise ineligible submissions, you agree to promptly repay such amounts to us upon written request. In addition, we reserve the right to offset any such amounts against future amounts owed to you.
e. FoodBuy Letter of Participation. You may be eligible to participate in additional programs, discounts, or other offerings made available by the GPO under the FoodBuy Foodservice Letter of Participation Agreement entered into between you and FoodBuy LLC (the “FoodBuy Letter of Participation”). Your participation in such programs is subject solely to the terms and conditions of the FoodBuy Letter of Participation, and except for the Program and Rebates described herein, we have no responsibility or liability to you in connection with any of the additional programs, offers, benefits, or obligations under or related to the FoodBuy Letter of Participation.
FEES AND PAYMENT
a. Fees. As consideration for the Program, you agree that we shall retain a fee equal to twenty-five percent (25%) of the total amount of each successfully collected and resolved Rebate (the “Program Fee”). In addition, you acknowledge and agree that thirty-five percent (35%) of the total amount of each Rebate will be retained by the GPO as its fee (“GPO Fee”, and together with the Program Fee, the “Fee”). The remaining forty percent (40%) of the total amount of each Rebate (“Net Rebate Amount”) will be remitted to you in accordance with Section 2.b below. For the avoidance of doubt, the Fees stated herein pertain solely to Rebates and not to any other programs, discounts, or offerings made available by the GPO under the FoodBuy Letter of Participation.
b. KSA Credits. Within fifteen (15) days following the end of each calendar month, we will calculate the total Rebates successfully collected and resolved during the previous calendar month, determine the Net Rebate Amount after deducting the Fee, and apply the Net Rebate Amount as a credit on your invoice for the licensee fees due and payable to us under the KSA.
THIRD PARTY VENDORS AND DATA SECURITY
a. Access to Third Party Vendors. In order to provide you with services under the Program, we require access to your accounts with certain Third Party Vendors. As such, you appoint us as your agent with authorization to access and use your accounts with Third Party Vendors, and access Purchasing Data and Your Data in connection with the Program. You agree to provide your account login information for such purposes, and promptly update us with any changes to login credentials, including new passwords or other authentication details for the duration of your participation in the Program. “Your Data” means information and data about you, your business, your and your Third Party Vendors generated during your use of and participation in the Program, including Purchasing Data and other information and data obtained from or provided by your Third Party Vendors during your participation in the Program.
b. Integration with Third Party Vendors. You authorize us to access and use Purchasing Data and other information that relates to you or your relationship with the Third Party Vendors and you authorize such Third Party Vendors to disclose the Purchasing Data and Your Data to us. You represent and warrant that you will send, receive, use, and disclose Your Data in accordance with applicable laws and pursuant to the terms executed between you and the applicable Third Party Vendor. You agree that your use of the Third Party Vendors may be subject to additional terms presented by the Third Party Vendors, including their privacy policy and terms of service. You agree that the services of Third Party Vendors are provided by third parties and as such, we have no responsibility for the Third Party Vendors, their security, or the technology or services they provide (including those services which are accessible by our Program). We cannot guarantee that we will support integration with any Third Party Vendors or with any particular third-party vendors in the future, and we may remove or alter a Third Party Vendor under the Program at any time, with or without notice to you. You agree that we are not liable for any damages, costs, expenses, or losses from your inability to use any particular Third Party Vendor in connection with the Program or otherwise.
c. Privacy. By participating in the Program, you consent to the processing and storage of Your Data. Our collection and use of personal data, if any, is subject to our Privacy Policy. If you become aware of any unauthorized access to your account with Third Party Vendors or Your Data, you will immediately notify us, and cooperate with us by providing all information reasonably requested by us. You agree that we may subcontract obligations under these Terms to our Affiliates or other third parties. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with us.
d. Your Data. You hereby grant us and our Affiliates a nonexclusive, perpetual right to use Your Data and the other information you may enter, upload or make available through the Program to improve our and our Affiliates’ products and services and perform relevant industry trend analysis during and after the term of these Terms. We may also aggregate or de-identify Your Data in order to share relevant industry trends with third parties. In connection with your participation in the Program, we may access or store personal information (as defined under the California Consumer Privacy Act of 2018 (“CCPA”)) contained in Your Data in multiple countries, including countries outside of your own country, to the extent permitted by applicable laws. We are considered a “service provider” under the CCPA and will not: (i) sell your personal information; (ii) retain, use or disclose any of your personal information for any purpose other than for the specific purpose of providing the services or as otherwise permitted under the CCPA; or (iii) retain, use or disclose your personal information outside of our direct business relationship.
EXCLUSIVITY
You agree that for the duration of your participation in the Program, we will be the exclusive provider of Rebates and other services stated herein. You will not engage any other party to perform similar rebate submission, or collection services for the same Third Party Vendors covered under the Program. You acknowledge and agree that the GPO is the sole authorized group purchasing organization, and participation in multiple group purchasing organizations or procurement services is strictly prohibited. If you currently participate in any other group purchasing organization or procurement services, you agree to terminate all such agreements prior to the Effective Date. Failure to do so shall constitute a material breach of these terms and may result in the immediate termination of your participation in the Program.
TERM AND TERMINATION
a. Term. The Terms are effective as of the Effective Date and shall continue until the Agreement is terminated by either party upon at least ninety (90) days prior written notice to the other party, or as otherwise provided herein (the “Term”).
b. Termination. A party may terminate these Terms upon written notice to the other party in the event that the other party has material breached these Terms and does not cure such breach within thirty (30) days of written notice of such material breach; or ten (10) days for non-payment. We may terminate these Terms immediately upon written notice to you to comply with a legal requirement or court order, in our reasonable discretion. You may terminate these Terms upon written notice to us in the event that we modify the Terms or Fees and you do not agree to such modifications.
c. Survival. Outstanding payment obligations and the following Sections shall survive termination of these Terms: Sections 6-10.
REPRESENTATIONS AND WARRANTIES
a. Representations and Warranties. Each party represents and warrants that it: (i) has full power and authority to enter into these Terms, and (ii) will comply with all laws, rules, and regulations applicable to the Program and the performance of the Agreement hereunder. You further represent and warrant that (1) the individual clicking to accept the Terms has the right to bind the corporation, partnership, LLC, or other entity entering into these Terms, and is authorized to sign for and bind such an entity in order to accept these Terms, (2) you will not violate any obligations to a Third Party Vendor or any third party by entering into and performing under the Terms (e.g. if you have chosen to use one or more Third Party Vendors, you do not maintain an exclusive contractual relationship with such Third Party Vendor), (3) you have the right to use, and allow our use of Your Data, Purchasing Data, and your Third Party Vendor accounts, including the right to appoint us as your agent to access and use your Third Party Vendor accounts as described in these Terms, and (4) if applicable (e.g. required by the Third Party Vendor), you have provided any notices, obtained any consents and satisfied any other requirements under applicable laws and any Third Party Vendor agreement, that are necessary for you to allow us to access and use Your Data as set forth herein.
b. Disclaimer. You acknowledge and agree that the Program provided “as-is.” We do not warrant that the Program shall be uninterrupted or shall meet any of your specific needs or requirements and shall have no liability for any errors to the Rebates, Net Rebate Amounts, or Your Data. We do not provide any implied warranties, such as the implied warranties of non-infringement, merchantability, and fitness for a particular purpose, unless required under applicable laws. Your access to the Program may be interrupted from time to time for any of several reasons, including actions that we may elect to take or issues with Third Party Vendors. You agree that we are not liable to you or to any third party for any interruption, modification, suspension, or discontinuance of the Program. We do not make any other commitments or warranties about the Program or how it will perform for you other than as expressly stated in these Terms.
INDEMNIFICATION
Unless prohibited by applicable laws, you agree to indemnify us and our Affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any third party liabilities, fines, fees, penalties, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (i) your breach of these Terms or any agreement with a Third Party Vendor; (ii) Purchasing Data, Your Data or any other information or content you provide or make available to us; (iii) your participation in the Program; or (iv) your gross negligence or willful misconduct.
LIMITATION OF LIABILITY
YOU AGREE THAT OUR TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS, THE AGREEMENT, AND/OR YOUR PARTICIPATION IN THE PROGRAM IN THE AGGREGATE, IS LIMITED TO THE LESSER OF (i) US$1,000 OR (ii) THE NET REBATE AMOUNTS WE PAID TO YOU IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM HEREUNDER. YOU AGREE THAT WE WON’T BE RESPONSIBLE FOR YOUR LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS, INDIRECT OR CONSEQUENTIAL LOSS, OR PUNITIVE DAMAGES IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM OR THESE TERMS. THIS LIMITATION WILL NOT APPLY TO LIABILITY DUE TO OUR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR THAT OTHERWISE CAN NOT BE LIMITED OR EXCLUDED BY APPLICABLE LAWS.
ARBITRATION
Except for claims or disputes related to a party’s intellectual property or breach of confidentiality obligations, each party agrees that any claim or dispute arising between the parties, including but not limited to these Terms, or the breach thereof, will be settled by binding arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and utilizing its Expedited Procedures. The parties further agree the process will be governed by Rule E-6 (Proceedings on Documents and Procedures for the Resolution of Disputes Through Document Submission). These rules are located online at https://www.adr.org/rules. Per the Commercial Arbitration Rules, the arbitrator has the authority to determine whether a claim or counterclaim is subject to arbitration. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be venued in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems proper in the circumstances, only to the extent permitted by these Terms and applicable laws, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees. Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding between you and us will not be consolidated with any other arbitration proceeding involving customer or any other person or entity.
MISCELLANEOUS
- All notices to us must be sent to [_____________]. We have the right to update or change these Terms by providing you with notice and your continued participation in the Program will be your acceptance of those changes. We will send all required notices in these Terms to the primary email address associated with your account under the KSA. These Terms contain the entire understanding of the parties regarding your participation in the Program, and supersedes all prior and related contemporaneous agreements and understandings. You have certain rights under applicable laws that cannot be limited by these Terms or any contract; these Terms will not restrict those rights. If you breach these Terms, and we do not take immediate action in response to your breach, we are not waiving any rights we may have, including the right to take action in the future. If a portion of these Terms is deemed invalid or unenforceable, the remainder of these Terms will remain in effect. These Terms are between only you and us; these Terms do not create any legal rights or obligations for any third party, even if others benefit from that relationship under these Terms. These Terms shall be governed by California law (or the Province of Ontario, if you are located in Canada), excluding applicable conflict of laws rules.