MCDONALD’S FRANCHISEE COMPANION AGREEMENT
THIS FRANCHISEE COMPANION AGREEMENT (this “Agreement“) is made as of the accepted by Franchisee be selecting the “Accept” button (the “Effective Date“) by and between Jolt Software, Inc., a Delaware corporation (“Provider”) a corporation having its principal place of business at 29 N. Ashton Blvd., Lehi, UT 84043, and Franchisee, as defined below. Provider and Franchisee are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” The Parties agree that this Agreement constitutes a Companion Agreement as defined in the Subscription Services Agreement between Provider and McDonald’s USA, LLC. As such Franchisee enters into this Agreement individually and solely on its own behalf and therefore McDonald’s USA, LLC, nor its affiliates, will be liable, whether jointly or severally, to Provider in respect of any fee due and owing by Franchisee hereunder, or for any other obligation of Franchisee. This Agreement does not have to be signed in order to be binding. You, on behalf of Franchisee, indicate your assent to this Agreement by clicking “I agree” (or similar button or checkbox). You represent and warrant that: (i) you have full legal authority to bind Franchisee to this Agreement; (ii) you have read and understand this Agreement; (iii) you understand you are not obligated to agree to this Agreement; and (iv) you agree to this Agreement on behalf of Franchisee. If you don’t have the legal authority to bind Franchisee or you do not agree to this Agreement, please do not click “I agree” (or similar button or checkbox) that is presented to you.
“Franchisee” means the entity that you represent, with which McDonald’s or a McDonald’s Affiliate has an agreement pursuant to which such entity has a license to operate “McDonald’s” branded restaurant(s) in accordance with certain methods and procedures prescribed by McDonald’s Corporation or its affiliate.
WHEREAS, Franchisee and Provider desire to enter into an agreement whereby Provider may provide Services (each as defined below) to Franchisee.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I – SERVICES
1.1Services. Provider shall provide the following Subscription Services described in Schedule A, which together with the Support Services that are included with them are referred to herein as the “Services”. Additional detail regarding such Services are described in Schedule A which is attached hereto and incorporated herein by this reference. “Subscription Services” means Provider’s provision and management of the software-as-a-service product described in Schedule A, including but not limited to the following components which may be provided by or on behalf of Provider in the course of making such product available to Users via the internet: (a) software (including but not limited to middleware and any other code or scripts), (b) hardware, (c) services (including but not limited to hosting services), and (c) network connectivity. The Subscription Services also includes Provider’s provision of any Local Software and Documentation. “Local Software” means software and other code, whether in source or object formats, provided to Franchisee or Authorized Parties by or on behalf of Provider for installation on their or their Users’ environment for the purpose of using or accessing the software-as-a service product. “Documentation” means any documentation provided by Provider relating to or describing the functionality, limitations, or other specifications of the Subscription Services or any component thereof, as the same may be updated from time to time. Provider further represents and warrants that it shall not remove from the Subscription Services or otherwise materially degrade the functions of the Subscription Services during the Subscription Period. “Authorized Parties” is defined as Franchisee’s Affiliates, suppliers, and contractors. Notwithstanding anything to the contrary in this Agreement, Franchisee acknowledges and agrees that Provider’s Local Software is not customized for Franchisee’s use; rather, Provider’s Local Software is general software offered to all of Provider’s customers that Franchisee can customize for its unique needs. Franchisee further acknowledges and agrees that (i) Provider improves or otherwise alters its Local Software from time to time based on general software functionality, usage behavior, and general customer feedback on the Local Software and methods used in connection with delivering the Services; and (ii) none of these improvements or alterations will create any intellectual property interest on behalf of Franchisee in the Local Software, as such improvements or alterations will not constitute customized improvements solely for Franchisee’s business needs that are serviced under this Agreement or otherwise.
1.2Term.Unless earlier terminated in accordance with Section 4, this Agreement shall remain in effect until the expiration of the Subscription Period. The “Subscription Period” is the period of Provider’s provision of Subscription Services, and shall have an initial period of one (1) year from the Effective Date, and Franchisee shall have the option to renew each Subscription Period for one (1) year Subscription Periods for as long as Provider continues to make such Subscription Services or Support Services available to its other customers or, if later, until January 24, 2025, subject to any price adjustments pursuant to Section 3 and shall automatically renew for successive one (1) year periods thereafter unless either Party gives written notice to the other Party not less than sixty (60) days prior to the expiration of the then-current term Provider shall notify Franchisee at least one hundred twenty (120) days prior to the expiration of any Subscription Period.
1.4Licenses.Provider hereby grants to Franchisee and Authorized Parties a non-exclusive, worldwide, royalty-free right and license to use (a) the Local Software and Documentation in perpetuity (however Provider may disable the functionality of the Local Software after the Subscription Period), and (b) all other components of the Subscription Services during the Subscription Period, subject to the maximum number of users (each, a “User”) and/or maximum number of sites/locations (each, a “Site”) as listed in Schedule A. The Local Software on each device may only be used to access the Subscription Services for a single Site, provided that there is no limit on the number of devices that may be used to access the Subscription Services at any Site. Franchisee shall have the right to reassign Users, Sites, and other license entitlements (including, without limitation, for Local Software) as necessary for the business purposes of Franchisee and Authorized Parties. For the avoidance of doubt, Franchisee may designate any personnel of any Authorized Party as a user.
1.5Data Backup and Return.Provider will execute, for each Subscription Service, (a) nightly database backups to a backup server and (b) incremental database transaction log file backups every thirty (30) minutes to a backup server. In addition, Provider will replicate Franchisee’s database and default path to an off-site location (i.e., other than the primary data center) and save the last fourteen (14) nightly database backups on a secure server. Franchisee may retrieve the database backups with two (2) weeks advance notice, unless such backup is necessary for disaster recovery purposes, in which case Provider shall provide such backups as soon as possible.
1.6Data.The term “Data” shall mean all data (including but not limited to Personal Data) and derivatives thereof that: (a) Franchisee or its Users input into the Subscription Services, or any component thereof, (b) that is generated, created, captured, or transmitted by the Subscription Services provided to Franchisee, or (c) that Provider otherwise obtains from or on behalf of Franchisee or Authorized Parties or other Users as a result of Provider’s performance of the Services or its obligations pursuant to this Agreement. Provider acknowledges and agrees that as between Provider and Franchisee, Franchisee shall be the sole and exclusive owner of all right, title and interest in and to the Data. Provider has no right, title or interest in or to any Data, and may only use the Data as required for Provider’s provision of the Services hereunder. To the extent that any right, title or interest in the Data arises outside of this Agreement in favor of Provider, Provider irrevocably and unconditionally assigns all such right, title and interest to Franchisee. Provider shall comply with any and all applicable laws and regulations with respect to the use of any and all Data. Unless otherwise agreed to by Franchisee in writing, Provider shall only host and process Data in the United States. Provider represents and warrants that the Subscription Services will enable Franchisee to export all Data, stored therein upon demand in a useable, non-proprietary format or as otherwise agreed upon by the Parties.
1.7 Data Separation and Reporting. Provider shall logically separate the data it receives from Franchisee from data it receives from all other customers, including McDonald’s USA, LLC and its affiliates (“McDonald’s”) and other McDonald’s franchisees. Notwithstanding anything to the contrary herein, Provider may provide McDonald’s with reports derived from the Subscription Services which do not contain any Personal Data and which contain only aggregated data in a manner which does not reveal or enable McDonald’s to discover data specific to Franchisee (“Aggregated Reports”).
ARTICLE II – CONFIDENTIAL INFORMATION
2.1 Confidential Information. The term “Confidential Information” means all Data (including Personal Data), and any information, material, documents, research, work-product, and findings, analyses, whether or not specifically labeled or identified as confidential, and derivatives thereof: (a) relating to Franchisee, Authorized Parties each of their businesses, assets, financial condition, operations, products, promotions, customers, supplier relationships, trade secrets, know-how, strategies and prospects; (b) obtained by or on behalf of Provider during the course of meetings or discussions with Franchisee, Authorized Parties and/or each of their representatives or agents; or (c) that Provider knows or has reason to know is considered confidential or proprietary by Franchisee and/or Authorized Parties. Confidential Information may be furnished to Provider in any form, including orally, in writing, by inspection, and/or through computer, tape or other electronic, mechanical or visual media. Except with respect to Personal Data, Confidential Information does not include any information which Provider can demonstrate by clear and convincing evidence (w) is generally available to the public other than as a result of disclosure by Provider or by another person or entity subject to obligations of confidentiality or that was otherwise prohibited from public disclosure of such information; (x) was lawfully known to Provider prior to the time of receipt; (y) was received by Provider from a third party not in breach of any law or obligation of confidentiality; or (z) was independently developed by Provider without the use of or reference to any Confidential Information; or (aa) is disclosed by Franchisee to Provider but consists only of ideas, suggestions, feature requests or usage data relating to the general software functionality and usage behavior of Provider’s Local Software and methods used in connection with delivering the Services hereunder, which may lead Provider to improve or otherwise alter its Subscription Services, unless identified by Franchisee as confidential or that identifies Franchisee’s-specific environment, operations, etc. Information falling within the foregoing categories (w) through (z) shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to McDonald’s along with the asserted grounds for disclosure.
All Confidential Information is the exclusive property of Franchisee, and Franchisee has the sole and exclusive right to use, duplicate, implement and/or dispose of such Confidential Information. FRANCHISEE MAKES NO REPRESENTATION OR WARRANTY (WHETHER EXPRESS OR IMPLIED) ABOUT THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION AND IT SHALL NOT HAVE ANY LIABILITY TO PROVIDER OR ANY OTHER PERSON OR ENTITY RESULTING FROM THE CONFIDENTIAL INFORMATION OR ANY USE THEREOF.
Franchisee acknowledges and agrees that all Subscription Services content or Local Software content that is developed by or on behalf of Provider and presented to Franchisee and Authorized Parties, and their Users may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of Provider and/or its Affiliates. Franchisee and its Affiliates are only permitted to use the content as part of its use of the Subscription Services. The following are trademarks, registered trademarks, or service marks of Jolt Software, Inc. or its Affiliates: Intuiplan, LLC and Jolt. Other custom graphics, icons, logos and service names used by Provider to identify and market its Services are registered trademarks, trademarks or service marks of Provider or its Affiliates. All other trademarks or service marks are property of their respective owners. Nothing in this agreement grants Franchisee any right to use any trademark, service mark, or logo, associated with Jolt Software, Inc. or Jolt and/or the name of Jolt Software, Inc. or Jolt or their Affiliates, except to the extent that such content is incorporated within a report generated by the Subscription Services or such use is part of the user experience of the Subscription Services.
2.2 Agreement to Maintain Confidentiality. Provider acknowledges that Provider, its Sub-Contractors, and their personnel (collectively referred to in this section as “Recipients”) may have access and contribute to information and materials of a highly sensitive nature (including Confidential Information) and Provider agrees that it shall protect, and shall ensure that Recipients protect, the legitimate business interests of Franchisee therein. Provider agrees that, during the Term and at all times thereafter, it shall use its best efforts and utmost diligence to maintain and safeguard the confidentiality and security of all Confidential Information to protect it against disclosure, misuse, espionage, loss and theft in accordance with this Agreement and all applicable laws. Provider agrees to implement all measures necessary to maintain such confidentiality and security, including advising Recipients who have access to Confidential Information in accordance with this Agreement and the restrictions contained herein, but in no case using less than (a) the measures it uses to protect its own confidential information and (b) reasonable care. In the event the law applicable to this Agreement requires that Provider’s duties under this section have a time limit, Provider’s duties under this section, and the duties of any Recipient under this section, shall expire two (2) years after the expiration of this Agreement. Notwithstanding the preceding sentence, Provider shall at all times take, and shall cause Recipients to take, all reasonable steps to protect Franchisee’s Trade Secrets (as the term “Trade Secrets” is defined under Illinois law), which shall be deemed to be Confidential Information for purposes of this Agreement, for so long as they remain Trade Secrets; and nothing in this Agreement shall limit Provider’s or any Recipient’s duties not to disclose Trade Secrets or Franchisee’s remedies in the event of such disclosure. Provider and Recipients may only use and copy the Confidential Information to the extent necessary to perform its obligations hereunder. In no event shall the Confidential Information be used other than for the sole benefit of Franchisee or to create Aggregated Reports for McDonald’s. Except for Recipients who have a strict need to know, Provider shall not disclose or use, and shall not permit Recipients to disclose or use, for its or their benefit or the benefit of any other person or entity, any Confidential Information, except to the extent such use or disclosure is required in connection with the performance of Services or pursuant to Section 2.2.
Provider shall take appropriate measures by instruction and agreement prior to disclosure to Recipients to (w) make Recipients aware of the duties and restrictions related to the Confidential Information and (x) assure against any use or disclosure not expressly permitted under this Agreement. Provider shall be liable to Franchisee for any use or disclosure by Recipients that are not expressly permitted under this Agreement.
Notwithstanding anything to the contrary herein, nothing in this Article II or this Agreement is intended or shall be interpreted so as to interfere with any rights a Worker may have under either Section 7 of the National Labor Relations Act or the United States Defend Trade Secrets Act. Under the Defend Trade Secrets Act, a Worker cannot be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that is made (i) in confidence to a federal, state, or local governmental official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law. Further, a Worker cannot be held liable for disclosure of a Trade Secret made in a complaint or other document filed in a lawsuit or other proceeding, provided the filing is made under seal. In a lawsuit for retaliation for reporting a suspected violation of law, a Worker may disclose a Trade Secret to its attorney, and may use the Trade Secret information in such court proceeding, if the Worker (i) files any document containing the Trade Secret under seal, and (ii) does not disclose the Trade Secret, except pursuant to court order.
2.2 Required Disclosures. In the event that Provider or any Recipient is required by law or court order to disclose any Confidential Information, Provider shall (a) immediately inform Franchisee and McDonald’s of such disclosure requirement and promptly confirm the same by written notice to Franchisee and McDonald’s, so that Franchisee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, (b) cooperate with Franchisee’s efforts, including without limitation any efforts to obtain a protective order or other appropriate remedy, to preserve the confidentiality of such Confidential Information consistent with applicable law, and (c) use Provider’s best efforts to limit any such disclosure to the minimum disclosure necessary to comply with such legal requirement. If Franchisee or McDonald’s notifies Provider, or Provider is otherwise aware, that any Franchisee Confidential Information may be within the attorney-client or work-product privileges, then regardless of any applicable exclusions, Provider (i) shall not take any action that would result in waiver of such privileges, and (ii) shall instruct all Provider individuals who may have access to such communications to maintain privileged material as strictly confidential and otherwise protect such privileges.
ARTICLE III – FEES AND EXPENSES
3.1 Fees. In full and complete consideration of the satisfactory performance by Provider of its obligations under this Agreement, Franchisee will pay to Provider the undisputed fees as set forth in Schedule A (the “Fees”). Provider will submit to Franchisee detailed invoices (including any GST, VAT or other applicable sales taxes, which for purposes of clarification, constitute “Fees”) for the Fees on the schedule set forth in Schedule A and, provided that Provider has delivered all invoices no later than ninety (90) days following completion of Services and performed to Franchisee’s reasonable satisfaction and has not breached any of its obligations, representations and/or warranties under this Agreement, Franchisee agrees to pay the undisputed Fees automatically in advance through Provider’s payment system, or if manual invoicing is mutually agreed upon in the sales order, within sixty (60) days after receipt. Payment of the Fees shall be Franchisee’s sole financial obligation to Provider for the performance of any and all Services pursuant to this Agreement. All Fees for Subscription Services and Support Services will not increase during the initial term or before January 24, 2022. Thereafter, in the event Franchisee elects to renew such Services for additional renewal periods, such Fees may increase annually by no more than two and one half percent (2.5%) or the percentage increase in Consumer Price Index for the prior twelve (12) month period, whichever is less. All amounts payable under this Agreement shall be invoiced in US Dollars.
3.2 Service Suspension and Payment Disputes. If Franchisee receives an invoice which it reasonably believes includes a sum which is not valid and properly due:
- Franchisee shall notify the Provider in writing;
- Provider shall provide such additional information and documentation as Franchisee may reasonably require to enable it to evaluate the invoice;
- Franchisee’s failure to pay the disputed Fees shall not be deemed to be a breach of this Agreement and the Provider must continue to perform its obligations under this Agreement;
- Upon receipt of Franchisee’s notice regarding disputed Fees, Provider shall prepare and transmit to Franchisee a modified invoice with all such disputed Fees removed from such invoice together with a separate invoice for the disputed amount.
- Upon receipt of such modified invoice containing only undisputed amounts, Franchisee shall pay the remaining, undisputed Fees in accordance with the terms of this section and within thirty (30) days of Franchisee’s receipt of such modified invoice.
3.3 Expenses. All costs and expenses incurred by Provider in connection with this Agreement, including without limitation, expenses for facilities, computer equipment, software, work space, utilities, internet and/or telecommunications charges and management, shall be the responsibility of Provider. In addition, Provider acknowledges and agrees that it has not and shall not incur any costs or expenses in reliance on securing this or any other business of Franchisee or an Authorized Party.
ARTICLE IV – TERMINATION
4.1 Termination of Agreement. This Agreement may be terminated by (a) either Party, upon the breach of any material term or condition (including representations and warranties) of this Agreement which is not capable of remedy, or, if capable of remedy, is not remedied within thirty (30) days of the receipt of written notice thereof; (b) by Franchisee, for whatever reason, with or without cause, on sixty (60) days written notice to Provider, or (c) by Provider in the event that Franchisee’s use of any component of the Services has become or is reasonably likely to become enjoined, and it has exhausted all attempts to modify, substitute, or obtain the rights for Franchisee to continue using the component, as set forth in Section 7.1 of the Subscription Services Agreement between Provider and McDonald’s USA, LLC. In addition, either Party may immediately terminate this Agreement in the event the other Party shall (v) cease conducting business in the normal course, (w) become insolvent, (x) make a general assignment for the benefit of creditors, (y) suffer or permit the appointment of a receiver for its business or assets or (z) avail itself of, or become subject to, any proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute. In the event of a termination of this Agreement, Provider shall refund the prorated pre-paid Fees within thirty (30) days from the effective date of termination for Services not yet rendered, and Franchisee shall pay all undisputed outstanding Fees incurred up to the effective date of termination.
4.2 Transition Assistance. Immediately upon either Party receiving notice of termination of this Agreement, Provider and Franchisee shall fully cooperate and use their collective good faith efforts to facilitate an orderly and timely transition of the applicable Services to Franchisee or its designee(s) for the purpose of enabling Franchisee to continue to receive (or perform) like services in a manner that minimizes disruption to the operations of Franchisee (“Transition Assistance”). Notwithstanding the foregoing, Franchisee shall have the right and option to extend the effective date of any termination by up to one hundred twenty (120) days, under the same terms and conditions, solely for the purpose of receiving Transition Assistance.
ARTICLE V – REPRESENTATIONS AND WARRANTIES
5.1 Provider represents and warrants to Franchisee that (a) it is the lawful owner or licensee of each component of the Subscription Services, (b) the Subscription Services shall conform to the requirements, specifications, and provisions set forth in Schedule A and any Documentation, (c) the Subscription Services will be provided using generally accepted industry standards. Provider further represents and warrants that the Subscription Services will satisfy all Level AA conformance requirements of the then current Web Content Accessibility Guidelines (“WCAG”) (current version WCAG 2.1) by July 24, 2020.
5.2 Franchisee desires all Services be provided in a lawful manner; this is a material term of this Agreement. Accordingly, Provider represents and warrants that it shall comply with all statutes, laws, regulations, ordinances, judgments, permits and other governmental rules or restrictions, whether domestic or foreign and as may be amended from time to time, applicable to Provider’s execution of this Agreement.
5.3 Provider represents and warrants that no Unauthorized Code will be transferred to Franchisee through the Services. “Unauthorized Code” means any virus, Trojan horse, worm, spyware (such as, any program that tracks the computer’s use in some manner, including downloaded files or usernames and passwords for websites or programs), adware (such as, any program that connects to the Internet and uses the computer to host advertisements and/or possibly transmit advertisements to other computers) or other code, script, or algorithm designed or used to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, or to consume, use, allocate or disrupt any computer resources, in a manner which is malicious or intended to damage or inconvenience. Further, Provider represents and warrants that Provider shall establish and maintain physical, technical, and administrative safeguards satisfactory to McDonald’s and reasonably designed and implemented to detect and protect against Unauthorized Code. In the event of a breach of the above representation and warranty, and if as a result the software introduces Unauthorized Code into the system(s) used by Franchisee or any Authorized Parties, Provider will be responsible for any costs in removing the Unauthorized Code from affected system(s), in addition to being liable for other damages resulting from such introduction.
5.4 Provider represents and warrants that it shall not use in its performance of the Services, or incorporate into any deliverable, any Copyleft Open Source Materials. “Copyleft Open Source Materials” are Open Source Materials that, if used by Franchisee or Authorized Parties, or if included with software of Franchisee or Authorized Parties, would require, as a condition of use or distribution of the Open Source Materials, that software of Franchisee or Authorized Parties must be (a) disclosed or distributed in source code form, (b) be licensed for the purpose of making derivative works, (c) be redistributable at no charge, or (d) similar requirements that would have the effect of making the software of Franchisee or Authorized Parties, non-proprietary, open source, or have similar characteristics of Open Source Materials. “Open Source Materials” means all software or other material that is distributed as “free software”, “open source software” or under similar licensing or distribution terms including, but not limited to, the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License.
5.5 Provider represents and warrants that (a) it has full legal power and authority to enter into this Agreement, and to perform its obligations hereunder (including granting any intellectual property rights or licenses hereunder), including the Services, (b) all materials and intellectual property produced or otherwise provided under this Agreement shall be of original development by Provider or that Provider has the legal right to grant the licenses set forth herein with respect to such materials and intellectual property, and (c) neither the execution of this Agreement nor use of the Services or any component thereof as permitted by this Agreement will violate any applicable law, rule or regulation or violate or misappropriate the rights of any third party, including any patent, trademark, trade name, copyright, trade secret or other intellectual property rights.
ARTICLE VI – INDEMNIFICATION AND LIMITATION ON DAMAGES
6.1 Indemnification. Provider shall indemnify, defend, protect, advance, and hold Franchisee and its Authorized Parties, and each of their respective directors, officers, employees, independent contractors and agents (each an “Indemnified Party”) harmless to the fullest extent permitted by law, from and against any actual, alleged, threatened, pending or completed disputes, claims (including without limitation, claims by any third party, any of Provider’s employees or Sub-Contractors, any governmental or regulatory agency, any owner of intellectual property, and/or any of an Indemnified Party’s customers or suppliers), actions, lawsuits, claims, issues, matters, appeals, arbitrations, subpoenas, investigations, requests to serve as a witness or proceedings (each, a “Claim” and, collectively, “Claims”) damages (including punitive, special, consequential, indirect, exemplary or incidental damages to the extent described in Section 6.2), losses, reasonable attorneys’ fees, costs, expenses, liabilities and settlement amounts (each, a “Loss” and, collectively, “Losses”), whether or not well founded in law or fact, which arise out of or are directly or indirectly related to this Agreement, any inaccuracy, untruthfulness, or the breach or alleged breach by Provider of any representation or warranty under this Agreement, including but not limited to Provider’s obligation to comply with all applicable laws, the performance or nonperformance by Provider (including, for purposes of this section, its employees, Sub-Contractors, or agents) of its obligations under this Agreement, or any acts or omissions of Provider or any of its employees, Sub-Contractors or agents occurring during the Term, regardless of when the Loss occurs or the Claim is asserted, commenced or threatened; provided, however, that Provider shall not have any obligations under this section in respect of Losses or Claims incurred or asserted solely by reason of Franchisee’s negligence or willful misconduct.
The Indemnified Party shall be entitled to select and retain counsel and control the defense of any third party claim (“Third Party Claim”) subject to indemnification under this section. In its defense of any such Third Party Claim, the Indemnified Party shall act reasonably and in accordance with its good faith business judgment. Additionally, the Indemnified Party shall not settle or compromise any Third Party Claim without Provider’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. All settlement amounts, costs and expenses shall be borne by Provider. Alternatively, at the request of the Indemnified Party, Provider shall assume the defense of any such Third Party Claim, employing counsel reasonably satisfactory to the Indemnified Party. In such a circumstance, Provider shall not settle or compromise the Third Party Claim without the consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. In any circumstance involving a Third Party Claim in which an indemnity requirement, as set forth in this section, is determined not to be enforceable under applicable law, Provider and Indemnified Party shall contribute to the payment of any Loss for which indemnification is not available, in proportion to the comparative degree of culpability of Provider and the Indemnified Party.
6.2 Limitation of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES; PROVIDED, HOWEVER, THE FOREGOING LIMITATION SHALL NOT BE APPLICABLE TO ANY LOSS ARISING OUT OF:
- PROVIDER’S GROSS NEGLIGENCE, FRAUD OR WILLFUL OR INTENTIONAL MISCONDUCT;
- BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY PROVIDER’S NEGLIGENCE;
- PROVIDER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER;
- PROVIDER’S BREACH OF SECTIONS 5.3 OR 5.4 OF THIS AGREEMENT;
- PROVIDER’S BREACH OF ARTICLE VII OF THIS AGREEMENT; OR
- ANY CLAIM SUBJECT TO INDEMNIFICATION HEREUNDER.
ARTICLE VII – PERSONAL DATA, DATA PROTECTION, NETWORK SECURITY
7.1 Personal Data, Data Protection and Data Processing.
- For the purposes of this Agreement, the following definitions shall apply:
- “Compromise” means the unauthorized access to Provider’s or its Sub-Contractor’s computer network or systems or files that contain Franchisee Data or other Confidential Information;
- “Data Subject”, “Personal Data”, “Process”, and “Processor” have the meanings given to them in Chapter 1, Article 4 of the GDPR and their related terms shall be construed accordingly;
- “GDPR” means the EU “General Data Protection Regulation”, Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC, as may be amended, modified, supplemented, restated, or superseded from time to time;
- “Privacy Incident” means any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of, or access to, Personal Data.
- The terms of this Section 7.1, and all references to “Provider” herein, shall also apply to any Sub-Contractors that are involved in the Processing of Personal Data in connection with this Agreement, and, for the avoidance of doubt, Provider shall be responsible for ensuring its Sub-Contractors’ compliance with such terms. Provider acknowledges that Personal Data is subject to laws restricting collection, use, Processing and free movement of Personal Data (“Privacy Laws”), including, without limitation, the GDPR and implementing member state laws. In addition to its other obligations hereunder, Provider shall execute, or arrange to be done and executed, each act, document and thing necessary or desirable to keep Franchisee and Authorized Parties in compliance with any such laws in connection with this Agreement.
- To the extent Provider Processes any Personal Data on behalf of Franchisee or Authorized Parties pursuant to this Agreement, Provider represents and warrants that it shall comply with the following obligations at all times during which Provider is engaged in such Processing or otherwise has access to such Personal Data:
- comply with all applicable Privacy Laws;
- not, by any act or omission, cause Franchisee or Authorized Parties to be in violation of any Privacy Laws;
- collect and Process Personal Data (A) only on documented instructions from Franchisee, including with regard to the transfer of Personal Data to a third country, unless required to do so under applicable law at all times, to which the Provider is subject and (B) solely for the purposes of enabling Provider to perform its obligations under this Agreement;
- act only as a data Processor;
- comply with all of Franchisee’s instructions from time to time in relation to the Processing of any such Personal Data provided such instructions are believed to be consistent with all applicable laws;
- notify Franchisee in writing promptly and prior to commencing the Processing if applicable law requires Provider to conduct Processing that is or could be construed as inconsistent with Franchisee’s instructions;
- notify Franchisee in writing immediately if Provider believes that any instruction from Franchisee is in violation of, or would result in Processing in violation of, applicable law;
- ensure that, at all times during the term of this Agreement, all personnel engaged in the Processing of Personal Data are aware of, and subject to, enforceable obligations to maintain the confidentiality of the Personal Data and to comply with the other relevant obligations and restrictions of this Agreement;
- inform Franchisee of any intended changes concerning the addition or replacement of its sub-Processors;
- ensure that the written agreement(s) between Provider and Sub-Contractor(s) shall (i) meet the requirements of Article 28(3) of the GDPR; and (ii) includes express guarantees by the Sub-Contractor to implement technical and organizational measures to ensure that Processing satisfies all requirements of applicable law;
- take all reasonable steps to ensure the reliability of all personnel who may have access to Personal Data and ensure in each case that access is strictly limited to those individuals who need to know or access the relevant Personal Data, as strictly necessary for the purposes of this Agreement and comply with applicable law in the context of that individual’s duties to Provider;
- take all necessary technical and organizational security measures against the accidental, unauthorized or unlawful Processing of Personal Data and against the loss, alteration or destruction of, disclosure of, access to or damage to, Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural person;
- implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, provided that such measures shall include, at a minimum, (A) using firewalls, intrusion detection, password protection and malware protection software, (B) performing periodic, but in any event at least annual, internal security audits of applicable Provider systems and the Services, and (C) testing applicable disaster recovery and business continuity plans and facilities. Such security measures shall ensure the security and confidentiality of Personal Data, protect against any anticipated threats or hazards to the security or integrity of Personal Data. Provider acknowledges that its duty to take security measures herein is in addition to, and does not limit, Provider’s obligations to take appropriate technical and organizational security measures pursuant to applicable laws, including those relating to data security and the handling of data security breaches, and otherwise protect against unauthorized access to or use of Personal Data. Provider shall take the measures mentioned in this section having regard to the state of technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to: (Y) the harm that may result from breach of such measures; and (Z) the nature of the Personal Data to be protected;
- not publish, disclose or divulge any such Personal Data to any third party without the prior consent of Franchisee (other than to the extent required by law in accordance with Section 2.2), and any such disclosure must be subject to obligations of confidentiality no less onerous than those imposed on Provider under this Agreement;
- when transferring Personal Data across national borders, adduce adequate safeguards for the privacy of all relevant Data Subjects, and ensure transfers from the EEA or Switzerland to another location are either: (A) to a country providing adequate protection of privacy rights (as deemed by the European Commission from time to time); (B) pursuant to the current Standard Contractual Clauses issued by the European Commission, as may be updated from time to time, provided Provider has secured all necessary approvals for the transfer from applicable governmental authorities; (C) authorized by all applicable governmental authorities in the EEA or Switzerland, as the case may be, such as through Binding Corporate Rules (as defined by GDPR) approved by all applicable governmental authorities; or (D) to an entity or group of entities that has self-certified under the EU-U.S. Privacy Shield mechanism and which, at the time of the transfer, is listed on the United States Department of Commerce Privacy Shield List as a current participant in the EU-U.S. Privacy Shield program in good standing;
- promptly notify Franchisee if it receives any inquiry, complaint, allegation, request or claim by a Data Subject or any third party (including governmental authorities relating to the following (collectively referred to herein as “Privacy Inquiries”) regarding (A) Personal Data Processed pursuant to the Agreement, or (B) Franchisee’s or an Authorized Party’s obligations under applicable Privacy Law, provided that, subject to Section 2.2, Provider will not respond to any Privacy Inquiry without Franchisee’s prior written consent, except to the extent required by applicable law or necessary to confirm the request relates to Franchisee;
- facilitate and cooperate fully with Franchisee or its agent, at no additional charge, with respect to the authentication, recording, investigation, processing, execution and resolution of, all Privacy Inquiries, including those relating to access, rectification, portability, restriction, erasure, objection or any other rights available to Data Subjects under applicable Privacy Law. Further, as part of such cooperation, Provider shall provide details of the Personal Data held by it in relation to the Data Subject within fifteen (15) days (or such earlier time if required by applicable laws) of receipt of the request regarding such Personal Data unless otherwise directed by Franchisee.
- Details of the Processing of Personal Data as of the Effective Date are set forth on Schedule B.
- Provider shall: (i) retain Personal Data only for the period of time required for Provider to perform the Services, or such longer period as may be required by applicable law, required pursuant to this Agreement or requested in writing by Franchisee and (ii) permanently delete all copies of data (including Personal Data) in its possession or control at the expiration of such time period.
- The obligations under this section shall remain in full force after the termination of this Agreement until the total destruction and/or delivery to Franchisee of all Personal Data is completed.
- For the purposes of this Agreement, the following definitions shall apply:
7.2 Network Security and Security Assessment.
- In the event Provider discovers, is notified of or reasonably suspects a Compromise or Privacy Incident, Provider shall immediately notify Franchisee and McDonald’s within twenty-four hours, and to the extent possible, this notification shall be prior to reporting such Privacy Incident or Compromise with law enforcement. The Parties acknowledge that Compromises and Privacy Incidents will be investigated by McDonald’s, and as such the procedures and rights described in Section 8.2 of the Subscription Services Agreement between McDonald’s USA, LLC and Provider shall apply to any Compromise or Privacy Incident arising out of the Subscription Services hereunder, provided that Provider shall not disclose Franchisee’s Personal Data to McDonald’s without Franchisee’s consent. Provider shall bear the costs incurred by Provider in complying with its legal obligations relating to such breach, as well as any other damages for which Provider may be liable and the following costs incurred by Franchisee or McDonald’s in responding to such breach, to the extent applicable: (1) the cost of providing notice to affected Data Subjects; (2) the cost of providing notice to government agencies, credit bureaus, and/or other required entities; (3) the cost of providing affected Data Subjects with credit monitoring services for a specific period not to exceed twelve (12) months or the minimum time period provided by applicable law, whichever is longer; (4) call center support for such affected Data Subjects for a specific period not to exceed thirty (30) days; (5) the cost of any other measures required under applicable law; and (6) any other losses, liabilities, damages (including punitive and exemplary damages), fines, penalties, interest and claims and all related costs and expenses for which Provider would be liable.
- Provider shall notify McDonald’s and Franchisee promptly if Provider becomes the subject of, or reasonably believes it may become the subject of, any claim, investigation, audit, suit or enforcement proceeding arising from or relating to Provider’s Processing of Personal Data; and will cooperate fully with Franchisee and assist Franchisee with any claim, investigation, audit, suit or enforcement proceeding arising from or relating to Provider’s Processing of Personal Data, including access to relevant information, records and personnel.
- Provider shall at a minimum encrypt all Personal Data in accordance with National Institute of Standards and Technology (NIST) Special Publications 800-45 and 800-111 and/or such future revisions or publications as may be released by NIST from time to time that amend, update, or supersede the aforementioned publication.
- Provider shall delete (i.e. destroy or securely erase), all Confidential Information and Intellectual Property, and if requested by Franchisee shall certify the same, upon the occurrence of any of the following events: (i) receipt of demand from Franchisee, (ii) termination or expiration of this Agreement, or (iii) with respect to a computer hard drive or other storage device owned or otherwise in the possession or control of Provider or its Sub-Contractors at such time that it is taken out of service or intends to use or re-use it to store data of any other customer or to deliver data to a third party. Provider shall destroy or securely erase such media in accordance with NIST Special Publication 800-88 and/or such future revisions or publications as may be released by NIST from time to time that amend, update, or supersede the aforementioned publication. Provider shall not withhold any Confidential Information or Data (including Personal Data) as a means of resolving any dispute.
ARTICLE VIII – MISCELLANEOUS
8.1 Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois, without giving effect to any principles of conflicts of law.
8.2 Remedies Cumulative. All remedies of Franchisee provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to Franchisee at law, in equity or otherwise.
8.3 Severability. If any provision of this Agreement is held or declared to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.
8.4 Notices. Any notices, consents or approvals required or permitted to be given hereunder shall be deemed to be given and sufficient (a) three (3) days after deposit in the United States mails, if sent via certified or registered letter, return receipt requested; or (b) one (1) day after deposit with a reputable overnight delivery or courier service, in each case, to the respective addresses set forth below or such other address provided by either Party in accordance with this section:
|If to Franchisee:||To the contact information provided by Franchisee to Provider from time to time|
|If to Provider:||Jolt Software, Inc.
2901 N Ashton Blvd Ste 300
Lehi, UT, 84043
Attention: Jolt Legal
cc via email to: Josh Bird firstname.lastname@example.org
Telephone Number: (877) 396-4112
8.6 Waiver. No delay, omission or failure to exercise any right or remedy provided for in this Agreement, or to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall be construed as a continuing waiver or relinquishment thereof, and each Party may at any time exercise any or all its rights or remedies herein and demand strict and complete performance of this Agreement by the other Party. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented.
8.7 Assignment; Third Party Beneficiaries. This Agreement shall be binding on the Parties hereto and their respective successors and assigns, and a permitted assignee shall have all of the rights and obligations of the assigning Party set forth in this Agreement. Provider shall not, and shall not have the power to, assign this Agreement without the prior written consent of Franchisee, which may be withheld in Franchisee sole discretion. Notwithstanding the foregoing, Provider may assign this Agreement in its entirety without such consent, effective upon notice to Franchisee, to a successor in interest in connection with a merger, acquisition or sale of all of Provider’s assets. Provider acknowledges and agrees that each Authorized Party is an intentional third-party beneficiary of this Agreement.
8.8 Use of Marks and Names. Provider shall not, and shall ensure that its Sub-Contractors do not, without the prior written consent of Franchisee, (a) use the tradename, service marks, or trademarks of Franchisee or any Franchisee Affiliate for any purposes, including but not limited to any advertising, publicity release or sales representation; (b) reveal the existence of this Agreement or the terms or conditions hereof to any person or entity; or (c) include Franchisee or any Franchisee Affiliate’s name in any list of representative clients.
8.9 Sub-Contractors. Provider may engage third parties to assist in its performance hereunder, including but not limited to the performance of web hosting services (each, a “Sub-Contractor”), but no such engagement will in any way affect the Fees agreed upon hereunder. Provider shall at all times be the primary party responsible for its performance hereunder, and shall have ultimate responsibility and liability for its Sub-Contractors’ performance, acts, and omissions as though such performance, act, or omissions was that of Provider.
8.10 Development Costs; No Reliance. All costs and expenses incurred by Provider in connection with this Agreement, including but not limited to all costs and expenses associated with hiring additional resources, or expanding its office and/or plant facilities, shall be borne solely by Provider and shall not be subject to reimbursement by Franchisee or any Authorized Party. In addition, Provider acknowledges and agrees that it has not and shall not incur any costs or expenses in reliance on securing this or any other business of Franchisee or any Authorized Party. Each Party hereto agrees and acknowledges that it has not relied on any representation or warranty (whether express or implied, written or oral) that is not expressly set forth in this Agreement.
8.11 Counterparts and Electronic Signatures. This Agreement may be signed in two counterparts, each of which shall constitute one and the same instrument, and may be executed through the use of electronic signature, which each Party acknowledges is a lawful means of obtaining signatures in the United States. Each Party agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement. Each Party further agrees that its use of a key pad, mouse or other device to select an item, button, icon or similar act/action, regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes its signature (hereafter referred to as “E-Signature“), acceptance and agreement as if actually signed by such party in writing. Each Party also agrees that no certification authority or other third party verification is necessary to validate its E-Signature and that the lack of such certification or third party verification shall not in any way affect the enforceability of its E-Signature.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
|Jolt Software, Inc.|
Provider shall contact Franchisee, at which time Franchisee shall indicate to Provider (a) of the two options in the table below, which Service(s) it wishes to order, and (b) the number of Locations it has. For the avoidance of doubt, only the Fees applicable to the Services ordered by Franchisee shall be invoiced by Provider, even though information regarding all potential Services is provided in this Schedule A. Franchisee may add or remove Locations from the Services, or switch from one Service option to another, upon notice to Provider.
|Product||Product Description||Licensing Metric||Subscription Term (Months)||Location Price Per Month|
|McD’s Digital Food Safety + Shift Management||
McDonald’s Digital Food Safety + Shift Management subscription including the following:
|McD’s Digital Food Safety Stand Alone||
McDonald’s Digital Food Safety subscription including the following:
|*Support Services included for each Subscription Service noted above at no additional fee.|
Integrations: Provider shall provide the following integrations at no additional charge:
- Single-Sign-On (SSO). Provider to cover its cost in delivering this functionality. Franchisee to cover its own expenses.
- Integration of Provider’s incident ticketing system with McDonald’s help desk provider’s ticketing system (ATOS). Provider to cover its cost and McDonalds to cover any ATOS costs or internal Franchisee expenses.
Subscription Start Date: The date that administrative access to the Jolt platform is received by Franchisee.
Payment Terms: Payments can be accepted via ACH or Credit Card. Payment details must be submitted to Provider through Provider’s secure payment portal. Payment will be processed based on the Subscription Start Date. Franchisee may select monthly or annual invoicing, either of which shall be in advance rather than in arrears.
Group 1 of 1 – Staff of Franchisee
Details of Processing of Personal Data
Subject matter and duration
The subject matter and duration of the Processing of Personal Data are set forth in the rest of this Agreement, including all amendments, exhibits, schedules, task orders, addenda, SOW’s, purchase orders and other documents associated therewith and incorporated therein.
Nature and purpose
The nature and purpose of the Processing of Personal Data are set forth in the rest of this Agreement, including all amendments, exhibits, schedules, task orders, addenda, SOW’s, purchase orders and other documents associated therewith and incorporated therein.
Categories of Data Subjects
The categories of Data Subjects to whom the Personal Data relates are:
- Past* and present Franchisee employees meeting certain criteria, with “employees” understood to include temporary workers, trainees, apprentices, and contract workers, including but not limited to the following:
- Employees working in company-owned restaurants (including restaurant crew and restaurant management)
*Data related to past employees will only be collected and transferred as permitted and or required per local law.
Types of Personal Data
The Personal Data transferred may contain the following categories of data:
- Personal Details: Name, maiden name and surname, and e-mail address, phone number, and photos.
[ End of Franchisee Companion Agreement ]
ANY PRODUCTS OR SERVICES THAT JOLT OFFERS THAT ARE NOT EXPRESSLY CONTEMPLATED IN SCHEDULE A, ABOVE, WHICH ARE NOT VENDOR APPROVED BY MCDONALDS:
This document was last updated on February 7th, 2020.