License Agreement

This LICENSE AGREEMENT (this “Agreement”) is made as of the date set forth on the signature page below (the “Effective Date”), by and between KIDSMENUS, INC., an Arizona corporation (“KidsMenus”) and the party agreeing to these terms and conditions by clicking or checking the Accept box pertaining to this Agreement in Licensee’s account portal on the Site (as defined below) (“Licensee”).  This Agreement is effective as of the date Licensee clicks or checks such Accept box (the “Effective Date”).  KidsMenus and Licensee are sometimes referred to as the “Parties” and each individually as a “Party”.    

RECITALS

A.  KidsMenus has developed and operates an Internet website located www.KidsMenus.com (the “Site”), and operates on the Site an online, Web-based service that empowers restaurants to quickly create and print branded kids activity placemats and menus that make mealtime fun and keep kids entertained (the “Service”).

B. Licensee desires to subscribe to and use the Service.

Therefore, the Parties agree as follows with the intent to be legally bound.

AGREEMENT

1. License of Software.  Licensee hereby subscribes to the Service.  In connection with Licensee’s subscription, Licensee agrees to perform Licensee’s obligations described in this Agreement.  Licensee agrees to use, and KidsMenus agrees to provide, the Service under the terms and subject to the conditions in this Agreement.  As used herein, the term “Service” expressly includes, without limitation, (a) the Site (including, without limitation, all source and object code related thereto), (b) all documentation related to the Site and such software applications (including, without limitation, all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of such applications), and (c) all content provided on and delivered through the Site and such software applications.

2. License Grant; Use of Software.

(a) License.  KidsMenus grants to Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited right and license to access and use of the Service during the Term (as defined below) solely for Licensee’s use in connection with the operation of up to five (5) unique restaurant locations operating under the same Licensee brand. Subject to the limited rights expressly granted hereunder, KidsMenus reserves all right, title and interest in and to the Service, including all related intellectual property rights.  No rights are granted to Licensee hereunder other than as expressly set forth in this Agreement.   

(b) Licensee Responsibilities and Obligations.  

(i) Licensee is solely responsible for (A) all activities occurring under Licensee’s account; (B) maintaining the confidentiality of Licensee’s account and password and creating secure passwords; (C) the content of all documents and data submitted by Licensee to and through the Service; (D) setting and modifying Licensee’s profile and preferences for the Service; (E) through Licensee’s administrator, for setting and modifying Licensee’s users’ profile and preferences for the Service, authorizing and terminating individual user ID’s and passwords and specifying the access rights of those users to the Service; and (F) ensuring that Licensee has all legal right and authority to upload all of Licensee’s content to the Service. 

(ii) Licensee shall (A) prevent unauthorized access to, or use of, the Service, and will notify KidsMenus promptly of any unauthorized use Licensee becomes aware of; and (B) comply with all applicable local, state, federal and foreign laws, treaties and regulations in using the Service, and other laws and regulations governing data privacy, international communications, and transmission of technical or personal data) (collectively, “Laws”).

(iii) Licensee shall use the Service solely for the purposes permitted pursuant to Section 2(a) above, and shall not use the Service for more than one (1) brand or more than five (5) unique restuarant locations operating under the same Licensee brand. Except as expressly set forth in this Agreement, Licensee shall not (A) share, sell, license, distribute, post in any public forum, or otherwise make available to any third party the Service or any information or other content contained in or accessed through the Service; (B) share Licensee’s account password and login credentials with any third party; (C) use, or attempt to use, any content obtained through the Service for any commercial purpose, or share such content with any third party; (D) send spam or similar unsolicited messages; (E) send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful material; (F) send or store viruses or other harmful or malicious code, files, scripts, agents or programs; (G) interfere with or disrupt the integrity or performance of the Service or KidsMenus’ sites, servers, or networks; (H) access, store, create, share, display, publish or transmit any material that (i) a party would reasonably believe to be unlawful or related to illegal activity, threatening, deceptive, defamatory, discriminatory, obscene, libelous, an invasion of privacy, or (ii) infringes the intellectual property rights of a third party; (I) access or attempt to access the Service by any means other than KidMenus’ publicly supported interfaces, including any automated means (e.g., use of scripts or web crawlers); (J) probe, scan, or test the vulnerability of any KidsMenus system or network; or (K) attempt to gain unauthorized access to KidsMenus’ systems, networks, infrastructure, or the Service.

(c) Ownership of the Service.

(i) The Service (including, without limitation, the software, technology, content, know-how, and documentation incorporated in and underlying the Service) is KidsMenus’ sole and exclusive property.  Subject to the limited rights expressly granted in this Agreement, KidsMenus reserves all right, title and interest in and to the Service (including, without limitation, all software, technology, content, know-how, and documentation, as well as all derivative works thereof), including all related intellectual property and proprietary rights (including, without limitation, all copyrights, patent rights, trademark and service mark rights, trade secret rights, and moral rights).  No rights are granted to Licensee other than as expressly described in this Agreement.

(ii) KidsMenus is also the sole and exclusive owner of (A) all updates, improvements, enhancements, revisions, modifications, new releases and versions, fixes, patches, and derivative works of the Service, (B) all documentation (including, without limitation, all operator and user manuals, training materials, guides, listings, drawings, reports, descriptions, and specifications describing the performance, functionality, operation and use of the Service), in whatever form recorded, and (C) all integrations, customizations, components, modules, workflows or other work product produced by KidsMenus (whether alone or jointly with Licensee) for Licensee.  Any of the items described in this Section 2(c)(ii) that are provided by KidsMenus, in KidsMenus’ sole discretion, to Licensee will be deemed to be included in the definition of the “Service” hereunder and available for use by Licensee under the terms and subject to the conditions in this Agreement.

(iii) As used herein, “Intellectual Property” means any and all discoveries, improvements, ideas, concepts, creative works, processes, methods, formulas, techniques, know-how, designs, works of authorship, trade secrets, copyrights, patent rights, trademarks, service marks, and any other intellectual property that relates to, or is used to develop or improve, the Service.   

Any Intellectual Property (A) made, conceived, developed, or reduced to practice, or caused to be made, conceived, developed, or reduced to practice, by Licensee, alone or in conjunction with others, during the Term and (B) disclosed to KidsMenus (whether orally, in writing, electronically or otherwise) (“Service-Related IP”) will be deemed to have been made or developed by Licensee solely for KidsMenus’ benefit, will be held in trust for KidsMenus’ exclusive use and benefit, and will be KidsMenus’ sole and exclusive property.  Licensee will not, either during the Term of this Agreement or at any time thereafter, use or disclose to any party Service-Related IP.  Licensee agrees to assign, and does hereby assign, to KidsMenus all right, title, and interest in and to any Service-Related IP, including, without limitation, any “moral” rights which Licensee may have in the Service-Related IP under any copyright law or other similar law.  Licensee also agrees, during the Term of this Agreement and at any time thereafter, at KidsMenus’ request and expense but without further consideration, to review, execute, acknowledge, and deliver any and all papers necessary to secure legal protection for Service-Related IP in any country in the world.  Without limiting the generality of the foregoing, KidsMenus may, in its sole discretion, incorporate the Service-Related IP into the Service.

(iv) Licensee expressly agrees not to (and will not authorize any third party to): (A) license, sublicense, modify, copy, reproduce, rent, loan, lease, sell, resell, assign, distribute, grant a security interest in, transfer any right to, commercially exploit, create derivative works (including, without limitation, improvements, enhancements, revisions or modifications) based on, or infringe, misappropriate or violate, KidsMenus’ intellectual property or other rights in, the Service; (B) decompile, disassemble, translate, reverse engineer or otherwise attempt to identify, reconstruct, derive or discover the source code (or the underlying ideas, user interface techniques, algorithms, structure or organization) of the Service; (C) remove or alter any identification, copyright, trademark, patent, or other proprietary notices, legends, symbols, or labels appearing in the Service; (D) directly or indirectly circumvent or violate the technical restrictions of the Service; (E) publicly disseminate performance information about or analysis of the Service; (F) use or access the Service in order to (1) build a competitive product or service (including one with similar ideas, features, functions or graphics), (2) copy any ideas, features, functions or graphics of the Service, or (3) to determine whether the KidsMenus’ assets are within the scope of any patent; (E) use the Service for any purpose other than as expressly authorized herein; (G) take any action that would cause any part of the Service to be placed in the public domain; (H) challenge the validity of the copyright or any other rights of KidsMenus to the Service or title or interest thereto; or (I) represent to any third party that Licensee has any ownership or other interest in the Service.

(v) Provided that KidsMenus does not personally identify Licensee, Licensee hereby grants KidsMenus the right (A) to use the data generated, in aggregated form where applicable, from Licensee’s use of the Service to maintain, support, and improve the Service, and for any other legal purpose, and (B) to use all content uploaded by Licensee to the Service to train KidsMenus’ artificial intelligence software.

(d) Modification of the Service.  KidsMenus shall be entitled to modify, change, and upgrade the functionality, features, and capabilities of the Service and the underlying technical infrastructure, in its sole and absolute discretion.

3. Fees.

(a) Fees.  KidsMenus will provide Licensee with access to and use of the Service for the fees described in Exhibit A, and Licensee agrees to pay such fees.  All fees paid to KidsMenus are non-refundable.  KidsMenus reserves the right to adjust the fees at any time at KidsMenus’ sole and absolute discretion upon thirty (30) days’ prior written notice.

(b) Late Fees; Taxes.  KidsMenus may charge interest on all overdue fees at a rate equal to one and one-half percent (1.5%) per month (or, if lower, the maximum allowable by applicable Laws) on the unpaid amount until such amounts are paid.  Licensee will be solely responsible for, and will pay, any sales, use, transaction privilege, gross receipts, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on KidsMenus’ income) that are imposed by any governmental authority in connection with this Agreement.  

(c) Suspension.  If Licensee fails to pay, when due, any fees, late fees, or other charges due to KidsMenus under this Agreement, KidsMenus may, in KidsMenus’ sole and absolute discretion and upon written notice to Licensee, immediately suspend Licensee’s use of the Service.  Licensee expressly acknowledges and agrees that KidsMenus will have no liability to Licensee whatsoever if KidsMenus elects to suspend Licensee’s use of the Service (even if KidsMenus has been advised of the possibility of damages). 

4. Term and Termination. 

(a) Term.  The term of Licensee’s subscription will start on the Effective Date and will continue until terminated pursuant to Section 5(b) below (the “Term”).

(b) Termination.   

(i) Upon Notice.  Either Party may terminate this Agreement upon thirty (30) days’ prior notice to the other Party pursuant to Section 9(j).  Licensee may also terminate this Agreement upon thirty (30) days’ prior notice by clicking the Cancel button within Licensee’s account portal.

(ii) Insolvency/Bankruptcy. If Licensee shall: (A) be unable to pay or admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then KidsMenus may terminate this Agreement effectively immediately upon written notice to Licensee.

(iii) Default of Certain Licensee Obligations.  If Licensee breaches any of its obligations under Sections 2(b), 2(c), 3, or 9(b), KidsMenus may terminate this Agreement effective immediately upon written notice to Licensee.

As used herein, “Termination Date” means the date on which this Agreement expires or is terminated.

(c)    Effect of Termination. 

(i) When this Agreement expires or is terminated, (A) Licensee will immediately stop using the Service, (B) Licensee’s license to the Service will immediately terminate, (C) KidsMenus will immediately cease provision of the Service to the Licensee, and (D) Licensee will pay KidsMenus, within three (3) days following the expiration date, all fees and other charges which accrued prior to such expiration or termination date but remain unpaid.  Licensee expressly acknowledges and agrees that KidsMenus will have no liability to Licensee whatsoever with respect to the termination of Licensee’s use of the Service (even if KidsMenus has been advised of the possibility of damages (which include, but are not limited to, damages for injury to person or property, loss of revenue or profits, business interruption, loss of goodwill, use or loss of data, and/or the claims of third parties)).

(ii) Licensee will also pay any damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) that arise out of or in connection with any breach of this Agreement occurring prior to or after the expiration or termination hereof.

(iii) Following the Termination Date, KidsMenus has the right (but not the obligation) to retain any content that remains in Licensee’s account.

5. Representations and Warranties.  Licensee represents and warrants to, and covenants with, KidsMenus as follows:

(a) Licensee has the requisite power and authority to execute, deliver, and perform Licensee’s obligations under this Agreement.

(b) Licensee’s execution, delivery, and performance of this Agreement, and the consummation of the transactions described in this Agreement, have been authorized by all necessary actions on Licensee’s part.  This Agreement is valid and binding on Licensee, enforceable against Licensee in accordance with its terms.

(c) The execution, delivery and performance of this Agreement by Licensee do not and will not (i) conflict with, or constitute a default (now or in the future) of any agreement, instrument or other understanding to which Licensee are bound, or (ii) result in a violation of any Laws, judgment, injunction, decree or other restriction of any court or governmental authority to which Licensee is subject.

(d) No consent, approval, order or authorization of, or registration, declaration or filing with, any government authority, body, or any other party is required by Licensee to execute, deliver, and perform under this Agreement. 

6. Disclaimers. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. KIDSMENUS MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE SERVICE OR ANY OF THE CONTENT, SERVICES, OR PRODUCTS PROVIDED IN CONNECTION THEREWITH.  KIDSMENUS DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (a) THE SERVICE WILL BE 100% SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (b) THE SERVICE WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (c) ANY DATA STORED USING THE SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE; (d) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY KIDSMENUS IN CONNECTION WITH THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. KIDSMENUS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, AND WILL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED BY LICENSEE THROUGH THE USE OF THE SERVICE.

7. Limitation of Liability.  

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KIDSMENUS WILL NOT BE LIABLE TO CUSTOME, OR ANY OTHER THIRD PARTY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES IN CONNECTION WITH OR ARISING OUT OF (i) THE SERVICE, (ii) ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS OFFERED, ACCESSED, ENCOUNTERED OR OBTAINED ON, WITH, OR THROUGH THE USE OF THE SERVICE, OR (ii) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR KIDSMENUS’ PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY KIDSMENUS HEREOF), REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER CONTRACT, TORT OR OTHERWISE) AND EVEN IF KIDSMENUS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOSS OF REVENUE OR PROFITS, LOSS OF GOODWILL, USE OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, AND THE CLAIMS OF THIRD PARTIES). IF ANY JURISDICTION DOES NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES, KIDSMENUS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW AND IN NO EVENT WILL SUCH LIABILITY EXCEED ONE HUNDRED DOLLARS ($100.00).

(b) LICENSEE EXPRESSLY AGREES THAT LICENSEE’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR KIDSMENUS’ PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY KIDSMENUS HEREOF, WILL BE TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 4(b) ABOVE.  LICENSEE ACCEPTS THE RESTRICTIONS ON LICENSEE’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF LICENSEE’S BARGAIN WITH KIDSMENUS, AND LICENSEE UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.

8. Indemnification.  Licensee will defend, indemnify and hold harmless KidsMenus and KidsMenus’ affiliates, officers, directors, members, managers, equity holders, employees, insurers, legal counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys’ fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Licensee of Licensee’s representations, warranties, agreements and covenants set forth in this Agreement; or (b) Licensee’s use or misuse of the Service.

9. Miscellaneous. 

(a) Audit.  KidsMenus reserves the right to audit Licensee’s compliance with this Agreement.  Licensee will allow KidsMenus and/or KidsMenus’ representatives with access to the Licensee’s books, records, and personnel as is necessary to determine such compliance.    

(b) Confidentiality.

(i) Except as provided in Section 9(b)(ii) below, during the Term of this Agreement and at all times thereafter, Licensee will (A) keep confidential and not divulge, furnish or make accessible to any third party any Confidential Information, and (B) use the Confidential Information solely for purpose of utilizing the Service during the Term pursuant to the terms and conditions set forth in this Agreement and not for the benefit of any third party.

(ii) Licensee shall be permitted to disclose Confidential Information to the extent, but only to the extent, (A) KidsMenus provides KidsMenus’ express prior written consent to such disclosure; or (B) required by law; provided, that prior to making any disclosure of Confidential Information required by law (whether pursuant to a deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process), Licensee must notify KidsMenus of Licensee’s intent to make such disclosure, so that KidsMenus may seek a protective order or other appropriate remedy and may participate with Licensee in determining the amount and type of Confidential Information, if any, which must be disclosed in order to comply with applicable law.

(iii) Promptly after the expiration or termination of this Agreement or upon KidsMenus’ request at any time, Licensee shall return to KidsMenus, or confirm in writing the destruction of, any Confidential Information which is in tangible form and which is then in Licensee’s possession.  As used herein, “Confidential Information” means all information concerning or related to KidsMenus’ business, operations, financial condition or prospects (whether prepared by KidsMenus, KidsMenus’ advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (A) all information regarding KidsMenus’ members, managers, officers, directors, employees, equity holders, customers, sales representatives, dealers, and licensees, in each case whether past, present or prospective; (B) all of KidsMenus’ Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how (including, without limitation, the Service and the Site); (C) the information and other content provided through the Service and the Site; (D) all of KidsMenus’ financial statements, audit reports, budgets and business plans and forecasts; and (E) all analyses, compilations, forecasts, data studies, notes, translations, memoranda, or other documents or materials, prepared by or for Licensee containing, based on, generated or derived from, in whole or in part, any Confidential Information.

(c) Electronic Signatures Effective.  This Agreement is an electronic contract that sets out the legally binding terms of Licensee’s subscription to the Service.  Licensee indicates its acceptance of this Agreement by clicking or checking the “Accept” icon in connection with its subscription to the Service.  This action creates an electronic signature that has the same legal force and effect as a handwritten signature.  By clicking or checking the “Accept” icon, Licensee agrees to the terms and conditions contained or referenced in this Agreement.  When Licensee clicks or checks the “Accept” icon, Licensee also consents to have this Agreement provided to it in electronic form.  Licensee is encouraged to print a copy of this Agreement for its records.

(d) Entire Agreement; Amendment.  This Agreement (including, without limitation, all Exhibits hereto) constitutes the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior and contemporaneous written and oral agreements, representations and communications between the Parties relating to such transactions.  KidsMenus may amend this Agreement, or any provision thereof, or add or remove terms at any time, and such amendments, additions or deletions will be effective immediately upon posting to the Site.  Licensee’s use of the Site and the Service after such posting shall be deemed to constitute acceptance by Licensee of such amendments, additions or deletions.

(e) Equitable Relief.  Licensee acknowledge and agrees that KidsMenus would be irreparably damaged in the event that any of the provisions of Sections 2(b), 2(c), 4(c), 9(a) and 9(b) are not performed by Licensee in accordance with their specific terms or are otherwise breached, and that money damages would not be a sufficient remedy for such breach.  Accordingly, Licensee agrees that KidsMenus will be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach, without any requirement to post bond or other security or to prove actual damage or harm.   Such remedies shall not be deemed to be the exclusive remedies for any such breach but shall be in addition to all other remedies available at law or in equity. 

(f) Expenses.  Except as may otherwise be specifically provided in this Agreement, each Party is responsible for any expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.

(g) Force Majeure.  KidsMenus shall not be liable to Licensee for any delay in or failure of KidsMenus’ performance under this Agreement (including, without limitation, KidsMenus’ failure to make available the Service or any component thereof) resulting from any act of God, fire, flood, explosion or other natural disaster, pandemic (including, without limitation, Covid-19), actions or impositions by Federal, state or local authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond KidsMenus’ reasonable control (“Force Majeure”).  Upon the occurrence of any such event that results in, or will result in, a delay or failure to perform, KidsMenus shall be relieved from fulfilling KidsMenus’ obligations under this Agreement during the period of such Force Majeure event.

(h) Governing Law; Consent to Jurisdiction.  This Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules, and each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement.  Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted under this Agreement.  If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.  The phrase “prevailing Party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 

(i) Non-Disparagement.  During the Term of this Agreement, Licensee agrees that Licensee will not make any statements (or cause or encourage others to make any statements), written or verbal, that defame or disparage KidsMenus or the Service. 

(j) Notices.  Any notice, demand or request required or permitted under this Agreement shall be in writing and deemed delivered (i) when delivered personally (including by recognized national courier), (ii) five (5) business days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid; or (iii) one (1) business day after sent via email.  Notices to (A) KidsMenus shall be addressed to KidsMenus, Inc., 1238 E Vinedo Lane, Tempe, AZ 85284, Attn: Crissy Saint, Email: info@kidsmenus.com, and (B) Licensee shall be addressed to the mailing address and email address set forth on the signature page below.

(k) Severability.  Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

(l) Successors and Assigns.  Licensee may not assign Licensee’s rights or delegate or cause to be assumed Licensee’s obligations hereunder without KidsMenus’ prior written consent (which consent may be withheld in KidsMenus’ sole and absolute consent).  Any attempted assignment, delegation or assumption not in accordance with this Section 9(l) shall be null and void and of no force or effect whatsoever.  The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.

(m) Survival.  The provisions of Sections 2(b)-(d), 3, 4(c), 5-9 and the portions of Exhibit A referenced therein will survive any termination or expiration of this Agreement.

(n) Use of Name.  KidsMenus has the right to list Licensee as a client of KidsMenus in all advertising, marketing and promotional materials designed to promote KidsMenus and its goods and services anywhere in the world.  Licensee hereby grants KidsMenus a non-exclusive, royalty-free, perpetual, worldwide license to use in all advertising, marketing and promotional materials designed to promote KidsMenus and its goods and services anywhere in the world Licensee’s name and Licensee’s logo (if any).  Licensee agrees that no monetary or other consideration shall be due Licensee for the rights granted or the uses described in this Section 9(n).

(o) Waivers.  The due performance or observance by the Parties of their respective obligations under this Agreement shall not be waived, and the rights and remedies of the Parties shall not be affected, by any course of dealing or performance or by any delay or failure of any Party in exercising any such right or remedy.  The due performance or observance by a Party of any of its obligations under this Agreement may be waived only by a writing signed by the Party against whom enforcement of such waiver is sought.

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EXHIBIT A

Free Trial Period

For a period of seven (7) days commencing on the Effective Date, Licensee can use the Service at no charge.

Fee

Upon expiration of the Free Trial, Licensee may purchase a monthly or annual subscription.

Monthly License Fee

Licensee will pay the following monthly fee set forth opposite the subscription being purchased.   

The monthly fee will be paid in advance via credit card on the Effective Date (or, if Licensee elects a Free Trial Period, the subsequent date on which Licensee elects the monthly paid service ) and each 30 day anniversary of such date during the Term.  Licensee expressly authorizes KidsMenus to charge Licensee’s credit card on file for the monthly fees.   

If Licensee upgrades/downgrades to a higher/lower tier Subscription Level, KidsMenus will credit any remaining balance from Licensee’s previous subscription fee to Licensee’s new level.  If Licensee changes from an annual to a monthly license fee, KidsMenus will credit any remaining balance from Licensee’s last paid annual fee to Licensee’s new monthly fee.

Annual License Fee

Licensee will pay the following annual fee set forth opposite the subscription being purchased.   

The monthly fee will be paid in advance via credit card on the Effective Date (or, if Licensee elects a Free Trial Period, the subsequent date on which Licensee elects the annual paid service) and each annual anniversary of such date during the Term.  Licensee expressly authorizes KidsMenus to charge Licensee’s credit card on file for the annual fees. 

 If Licensee  upgrades/downgrades to a higher/lower tier Subscription Level, KidsMenus will credit any remaining balance from Licensee’s previous subscription fee to Licensee’s new level.  If Licensee changes from a monthly to an annual license fee, KidsMenus will credit any remaining balance from Licensee’s last paid monthly fee to Licensee’s new annual fee.

All monthly and annual fees paid to Licensor are non-refundable.