QuikOrder.com E-Commerce Service Agreement

E-COMMERCE SERVICES AGREEMENT Revised 8/23/2006

NOTE: PLEASE READ ALL OF THE FOLLOWING INFORMATION CAREFULLY. IF YOU AGREE TO ALL OF THESE TERMS INDICATE YOUR ACCEPTANCE AS SET AT THE END OF THIS DOCUMENT. ALL OF THE FOLLOWING TERMS ARE INCORPORATED INTO YOUR AGREEMENT FOR SERVICES FROM QUIKORDER, INC.
THIS E-COMMERCE SERVICES AGREEMENT (the “Agreement”) contains additional terms and conditions binding upon QuikOrder, Inc. (“QuikOrder”) and the franchisee designated as the “Company” on the Schedule 1 that is a part of this Agreement (the “Franchisee”) with regard to the provision of Services (as defined) by QuikOrder to Franchisee.
WHEREAS, Franchisee is engaged in the business of producing and serving food and other products to the public through franchised Pizza Hut restaurant locations;
WHEREAS, QuikOrder is in the business of providing real-time Internet order fulfillment systems for the restaurant industry;
WHEREAS, the Parties desire to enter into this Agreement for QuikOrder to implement Franchisee’s participation in QuikOrder’s “Internet Order System”, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the Parties agree as follows:
Article 1. Definitions.
1.1	“Call Center” means a specific facility or telephone network-based virtual facility in which live and/or computer simulated operators accept and process orders placed by Customers, and the transmission of such order to the appropriate Franchisee Restaurant Location.
1.2	“Competitor” means any entity, or its affiliate or franchisees, that is in the business of producing pizzas for dine-in, take-out or delivery.
1.3	“Customer” means any customer ordering Pizza Hut Products from a Franchisee.
1.4	“Daily Availability Period” means the amount of time, stated in minutes, to the nearest whole minute, within a 24-hour period, starting at least 1 hour prior to the earliest opening time of a Franchisee Restaurant Location through the latest closing time of that Franchisee Restaurant Location. Reliability and accessibility of the Internet Order System shall be calculated based on 24 hours, 365 days a Calendar Year times 99.99% taking into account allowable/scheduled maintenance and measured on a per Calendar Quarter basis.
1.5	“Fees” means the Transaction Fee and other fees set forth in Schedule 3, attached hereto and incorporated herein.
1.6	“Franchisee Database” means a database created and maintained by Franchisee containing information pertaining to Customers.
1.7	“Franchisee Order Site” means an Internet web page or pages within and a part of the Site devoted exclusively to the Pizza Hut Products and services of Franchisee for the exclusive use of Customers.
1.8	“Franchisee Restaurant Location(s)” means any or all, as the context may so require, Franchisee owned and operated Pizza Hut restaurants and corresponding street address locations, the current list of which is set forth on Schedule 4, which shall be subject to amendment and updating from time to time, subject to the requirements set forth herein.
1.9	“Intellectual Property Rights” means patent rights, trademark rights, trade secret rights, copyrights, know how, maskworks, moral rights, and other intellectual property rights recognized by various jurisdictions and the rights to prosecute, perfect, license, assign, hypothecate or enforce such rights.
1.10	“Internet Order System” means QuikOrder’s turnkey, Internet-based food ordering system that is used to receive, price and transmit over the Internet or through a dial-up connection or by other means, orders placed by customers originating from a web browser over the Internet, wireless, phone, television or other web sources, to be filled by businesses that provide food carry-out or delivery services.
1.11	“Order” means a pick-up or delivery order for Pizza Hut Products placed by a Customer through the Franchisee Order Site that is successfully transmitted by QuikOrder and received by the appropriate Call Center or Franchisee Restaurant Location pursuant to Franchisee’s delivery trade area criteria.
1.12	“Parties” means Franchisee and QuikOrder.
1.13	“Pizza Hut Marks” means all source identifiers used from time to time by Franchisee in connection with the offer and sale of Pizza Hut Products.
1.14	“Pizza Hut Products” means food, beverage, promotional items and other products approved by Pizza Hut, Inc. for sale in Franchisee Restaurant Locations, including without limitation products from other restaurants such as Taco Bell, KFC, or any other present or future restaurant concepts that also include a branded Pizza Hut business as a component of the restaurant.
1.15	“Real-time” means the standard, at least as high as maintained for companies with comparable assets and customer service levels as the “Pizza Hut system”, for the transmission and receipt of electronic customer ordering and order verification information utilizing Internet communication services, taking into account the level of responsiveness consistent with industry standards for food carry-out or delivery services that a user senses as sufficiently immediate to keep up with its real-world counterpart, and which takes into account factors relating to delays inherent in equipment and telecommunications systems such as the Internet, the packet switched mechanism of the Internet, the limitations of the customers’ and carriers’ systems being used, and other factors set forth in Section 8.2, but excluding a Service Deficiency, as set forth below.
1.16	“Service Deficiency” means, subject to terms and conditions set forth in Articles 3 and 4 herein and the limitations set forth in Section 8.2, anything that prevents, delays or impairs or otherwise adversely impacts (i) Customers from placing orders through the Franchisee Order Site, or (ii) QuikOrder’s collection, transmission and delivery of complete and accurate orders in Real-time to Franchisee Restaurant Locations.
1.17	“Services” means those services set forth in Article 2, including order fulfillment, data processing and electronic commerce services.
1.18	“Site” means the web-based platform developed by QuikOrder that consists of one or more Internet web pages devoted to the products and services of specific companies.
1.19	“Term” means the period from the Effective Date through December 31, 2009.
Article 2. QuikOrder Services. In connection with this Agreement, QuikOrder shall provide the following services (collectively, “Services”):
2.1	Franchisee Order Site. QuikOrder shall establish a presence on the Site tailored to the requirements of Franchisee, by devoting a web page or pages within the Site specifically for the exclusive use of Franchisee.
2.2	Menu Items, Prices.
	2.2.1	Posting of Menu Items and Prices. Subject to receipt of correct product promotion, description and pricing information from Franchisee as provided in Section 4.2, QuikOrder shall accurately post on the Franchisee Order Site the price of Pizza Hut Products and any special menu offerings, promotions or coupons of Franchisee as those items are provided to QuikOrder by Franchisee, and identify the appropriate Customers to whom the Pizza Hut Products and special menu offerings, promotions or coupons are for sale to, based on correlating the appropriate Customer to the designated Franchisee Restaurant Location or Call Center based on the street map database provided by Franchisee.
	2.2.2	Estimated Times. QuikOrder will post notices relaying the estimated time of anticipated delivery or carry-out that is obtained from Franchisee prior to a Customer placing an Order, subject to the mutual agreement of Franchisee and QuikOrder as to the method of obtaining the estimated time information during the customer ordering process. The parties agree and understand that retrieval of an accurate estimated delivery time of an Order requires a continuous connection between QuikOrder and the Franchisee Restaurant Locations. In the event that a constant or broadband connection is not available, the estimated delivery time shall be presented to the Customer after the Order is deposited in the Franchisee Restaurant Location at no additional charge.
	2.2.3	Changes. QuikOrder shall accept and post on a schedule to be determined by mutual agreement (i) any change in the price of Pizza Hut Products, (ii) any specials or changes in menu offerings, promotions or coupons made by Franchisee, and (iii) any changes in updating the estimated time of anticipated delivery or carry-out that is obtained from Franchisee, subject to the ability of the Franchisee Restaurant Location’s system and infrastructure to provide this information in a timely manner to QuikOrder. In the event that a continuous connection to the Internet is not available to the Franchisee Restaurant Location, any and all communications costs that may be related to the collection and or transfer of this information shall be the responsibility of Franchisee, and if incurred by QuikOrder shall be reimbursed by Franchisee on a cost per call plus 20% basis billable and payable every period.
2.3	Participating Franchisee Restaurants and/or orders that arrive in Call Centers. Franchisee agrees that all Franchisee Restaurant Locations that offer delivery shall participate in the Internet Order System and receive the Services exclusively from Quikorder. QuikOrder agrees to provide the Services described in this Agreement to Franchisee Restaurant Locations and Call Centers. Franchisee shall have the right to add Franchisee Restaurant Locations or Call Centers to the set of Franchisee Restaurant Locations or Call Centers that are receiving the Services. Franchisee shall have the right to remove Franchisee Restaurant Locations or Call Centers from the set of Franchisee Restaurant Locations or Call Centers that are receiving the Services but only in the event of closure or sale of such facilities. If a Franchisee Restaurant Location is removed from the Franchisee Order Site, QuikOrder agrees to immediately place a notice, in a form acceptable to Franchisee, on the Franchisee Order Site notifying a Customer that the Franchisee Restaurant Location serving the Customer’s geographic area is not currently accepting on-line Internet ordering and notifying the Customer of an alternative method of contacting the Franchisee Restaurant Location, such as a telephone number. For the purposes of this section, the “store administration” web pages on the QuikOrder Site as of the effective date of this Agreement will be deemed adequate for this purpose.
2.4	Orders, Transmission, Verification and Confirmation.
	2.4.1	Orders. The Internet Order System shall accept, collect, categorize, sort and distribute in Real-time food delivery orders received through the Franchisee Order Site from Customers in accordance with the ordering, pricing and delivery specifications of Franchisee.
	2.4.2	Transmission. The Internet Order System shall electronically transmit and retransmit as necessary, via a protocol selected by QuikOrder in cooperation with Franchisee as part of the Internet Order System, accurate Customer food orders to the correct Franchisee Restaurant Location or Call Center based on criteria provided by Franchisee for carry-out or delivery to the Customer’s location. Such transmission will relay for each Order, the Customer’s name, address, telephone number, order specifics, including price and other relevant details.
	2.4.3	Verification. The Internet Order System shall verify that the Order transmitted by the Internet Order System has been received by the correct Franchisee Restaurant Location or Call Center based on the street map database provided to QuikOrder by Franchisee.
	2.4.4	Confirmation. The Internet Order System shall send in Real-time a display confirmation and follow-up with an e-mail confirmation to each Customer after the Internet Order System has verified receipt of the Order by the appropriate Franchisee Restaurant Location or Call Center. The e-mail confirmation will provide information relating to the status of the Order, including estimated time of anticipated delivery or carry-out as obtained from Franchisee, the details of the Pizza Hut Products ordered (i.e. ingredients chosen for pizza toppings), the total cost of the Order, including applicable tax and any charge for delivery, and the physical address and telephone number of the appropriate Franchisee Restaurant Location. The form of the e-mail confirmation will be subject to Franchisee’s prior approval. QuikOrder will not be responsible for verifying or validating the e-mail address provided by any Customer.
2.5	Customer’s Evaluation. QuikOrder agrees, if so directed by Franchisee, at additional cost to be determined and subject to Franchisee’s approval, to communicate with Customers as directed by Franchisee to determine their needs, expectations and the results of their experience using the Franchisee Order Site and/or their overall experience with Franchisee (as it relates to, among other things, product quality, hospitality and speed of service). QuikOrder is permitted to contact Customers directly in order to resolve technical issues or discrepancies.
Article 3. Service Commitments
3.1	Accessibility. Subject to the provisions of Section 8.2, QuikOrder agrees to maintain the Site including the Franchisee Order Site so that the Services specified in Section 2.4 above are (a) accessible to Customers 99.99% of the time during the Daily Availability Period and (b) performed by QuikOrder 99.99% of the time during the Daily Availability Period.
3.2	Scalability. QuikOrder represents and warrants that the Internet Order System is designed and constructed in a manner such that the Internet Order System will reasonably scale to whatever sustained transaction capacity is desired by Franchisee in Real-time, subject to the terms and conditions of this Agreement. Franchisee will provide thirty (30) days prior notice to QuikOrder if Franchisee reasonably anticipates a significant increase in Orders above the customary Orders for such time period due to the addition of Franchisee Restaurant Locations to the Franchisee Order Site, and will provide QuikOrder with Franchisee’s annual marketing calendar identifying the time and duration of national and regional promotional offers which shall constitute notice of planned increases in Orders due to such promotional offers.
3.3	Internet Security. QuikOrder agrees to maintain reasonable internal computer data integrity safeguards (such as access codes, passwords and firewalls) to protect against the accidental or unauthorized deletion or alteration of Franchisee’s data while in the possession of QuikOrder, including, without limitation, the Franchisee Database.
Article 4. Franchisee Obligations.
4.1	Equipment. Franchisee agrees that it will purchase, install and maintain the appropriate hardware and software as set forth in Schedule 2, attached hereto and incorporated herein.
4.2	Menu and Pricing Information. Franchisee agrees to accurately provide QuikOrder with prices of the Pizza Hut Products and any special menu offerings, promotions, coupons or notices and other information relevant to Franchisee’s food delivery or pick-up services as well as current maps or other descriptions of the geographic regions in which Franchisee accepts orders and provides delivery services. QuikOrder agrees to accept and update in Real-time the prices of the Pizza Hut Products and any special menu offerings, promotions, coupons, notices or changes in the delivery trade area.
4.3	Orders. The Parties agree that QuikOrder is not responsible for the quality of the Pizza Hut Products nor for the delivery of the Pizza Hut Products by Franchisee and that such responsibility will be borne by Franchisee.
Article 5. Records and Reports.
5.1	Maintenance of Books and Records. QuikOrder agrees to maintain and keep at QuikOrder's principal place of business, and preserve for at least 2 years after the date of their preparation (regardless of any intervening expiration or termination of this Agreement), accurate records, ledgers, accounts, books, and data reflecting the Fees charged to Franchisee hereunder.
5.2	Inspection and Records. At all reasonable times, Franchisee may request and obtain from QuikOrder copies of applicable records, ledgers, accounts, books, and data relating to QuikOrder's Services provided to Franchisee under this Agreement. QuikOrder will cooperate with any such request by providing other assistance Franchisee reasonably requests, subject to Franchisee’s obligation not to reveal any information pertaining to any other customer of QuikOrder. It is expressly agreed and understood by the parties that only information related to Franchisee transactions may be reviewed by the Franchisee, and no information gained directly or indirectly regarding any other QuikOrder customers may be reviewed or inspected or revealed to Franchisee. Should QuikOrder be required to include this provision in any other contract for any other customer, this section requiring the non-disclosure of information to the other customer shall be included in that document and enforced by QuikOrder so as to protect Franchisee Confidential Information.
5.3	Reporting Errors. If any examination or audit discloses that Franchisee was overcharged or billed in error, QuikOrder will credit Franchisee with such amount in the next billing cycle. If Franchisee is found to have been overcharged an amount exceeding 5% of the amount due over any twelve-month period, then QuikOrder will pay Franchisee the overcharge found to be owing, plus a finance charge at the rate of 1.5% per month (or, if lower, the maximum rate permitted by law), accruing from the date payment was received by QuikOrder and QuikOrder will reimburse Franchisee for the reasonable cost and expense of the audit.
5.4	Reports. QuikOrder agrees to provide the following automated reports that Franchisee may access through the Site at any time.
	(a)	A daily report indicating in Real-time the total number of Orders placed by Customers through the Franchisee Order Site categorized by Franchisee Restaurant Location; and
	(b)	A daily report indicating in Real-time the total number of errors that occurred on Orders placed by Customers through the Franchisee Order Site and the nature of and reason for (to the extent determinable by QuikOrder) each error categorized by Franchisee Restaurant Location.
	QuikOrder agrees to provide such other reports that Franchisee may reasonably request from time to time in a format acceptable to Franchisee. QuikOrder agrees that the costs associated with generating and providing the reports to Franchisee under this Section 5.4 are included in the Fees, and in no event will Franchisee be required to pay additional costs for the reprts set forth in subsections (a) and (b).
Article 6. Intellectual Property.
6.1	QuikOrder Intellectual Property. Subject to Sections 6.3, 6.5, and 6.6, the Parties agree that as between the parties QuikOrder is and shall be the sole and exclusive owner or licensee of the Intellectual Property Rights associated with the Internet Order System and the Site. These Intellectual Property Rights do not extend to product logos and graphics that may be displayed on the Site as further provided in Section 6.5.
6.2	License Grant to Franchisee. QuikOrder grants to Franchisee a non-exclusive right and license to use the QuikOrder Intellectual Property Rights contained in the Internet Order System as necessary to utilize the Services or to otherwise fulfill the terms of this Agreement during the term of the Agreement and any extension thereof.
6.3	Franchisee Intellectual Property. Except as granted in Section 6.4 herein, no right or license to any Intellectual Property Rights owned by Franchisee is granted or conveyed by this Agreement, expressly, by implication or by estoppel.
6.4	License Grant of Pizza Hut Marks. Franchisee has obtained the right for QuikOrder to use the Pizza Hut Marks, and QuikOrder accepts, a limited, non-exclusive, nontransferable and non-assignable license to use the Pizza Hut Marks solely for the purpose of performing the Services as described in Article 2.
6.5	Pizza Hut Marks. The Parties acknowledge and agree that the Pizza Hut Marks, including but not limited to all of the trademarks, trade names, service marks, trade dress, symbols, slogans, emblems, logos, insignia, designs, product identifications, artwork and any combination of them used from time to time in connection with the sale of goods and services, are the sole property of Pizza Hut, Inc. (“PHI”). All rights to the Pizza Hut Marks under trademark, copyright, or other property rights inure to the benefit of PHI. QuikOrder acknowledges the ownership of the Pizza Hut Marks by PHI, agrees that it will do nothing inconsistent with such ownership, and that all use of the Pizza Hut Marks by QuikOrder and all good will developed therefrom shall inure to the benefit of and be on behalf of PHI. QuikOrder agrees that nothing in this Agreement shall give QuikOrder any right, title, or interest in the Pizza Hut Marks other than the right to use the Pizza Hut Marks in accordance with the performance of the Services for Franchisee. Further, except as expressly provided in the Agreement, QuikOrder may not use in any way the Pizza Hut Marks or corporate name or trade name, slogans or other identification of PHI, without PHI’s prior written consent. Upon advance written approval, QuikOrder may reasonably use Franchisee’s name as a work reference in printed promotional materials, including online materials and otherwise identify Franchisee as the recipient of the Services herein.
6.6	Customer Information. Franchisee grants to QuikOrder a non-exclusive right and license to use the Franchisee Database as necessary to operate the Franchisee Order Site or to otherwise fulfill the terms of this Agreement. Franchisee owns any and all information and materials (i) relating to the Franchisee Database, (ii) contained in or displayed on the Site that is generated by a Customer and/or QuikOrder with respect to a Customer’s name, e-mail address, physical address, telephone number, order information, etc., (iii) calculated or manipulated by QuikOrder on behalf of Franchisee or information that is captured and/or transmitted by any network technology or received by QuikOrder directly or indirectly that interfaces with any Franchisee systems. QuikOrder will not disclose or otherwise use, for the benefit of itself or any other person or entity, any information relating to Customers; provided that QuikOrder shall be entitled to use such information for Site administration or capacity planning purposes and in aggregated form with all personally identifiable information removed. QuikOrder agrees that it shall not, by reason of providing any Services, acquire any rights or interests in or to Customer information or to the Franchisee Database or any particular information contained therein, including information independently input into the Franchisee Order Site by Customers, and QuikOrder hereby disclaims and waives any such right or interest.
6.7	Access to Franchisee Database. By execution of this Agreement, Franchisee agrees that if Franchisee requests additional services from QuikOrder or any of its affiliates, QuikOrder and its affiliates are authorized to access, or poll, the Franchisee Database, and receive and make use of the information solely in connection with fulfilling Franchisee’s request. QuikOrder may exhibit a copy of this Agreement to Pizza Hut, Inc. as evidence of Franchisee’s authorization and direction to Pizza Hut, Inc. to permit such Franchisee Database access by QuikOrder or any affiliate.
6.8	Content of Site. QuikOrder is the sole owner and operator of the Site, and as such reserves all rights to determine the content of the Site generally, including the right to display banners and other forms of advertising on various pages within the Site, all subject to and pursuant to QuikOrder’s agreement with PHI.
Article 7. Representations, Warranties and Convenents.
7.1	Franchisee Warranties. Franchisee represents and warrants the following:
	7.1.1	Franchisee has the right to license to QuikOrder all Pizza Hut Marks required for QuikOrder to perform its Services hereunder, or has obtained such license(s) for QuikOrder or on QuikOrder’s behalf, and has the right to grant QuikOrder access to Franchisee’s Database as described above.
	7.1.2	Franchisee’s delivery to QuikOrder of materials or information, and its permitting QuikOrder to access and/or modify the Franchisee Database, for use in connection with the Franchisee Order Site does not and will not breach any oral or written agreement to which Franchisee is a party or infringe any third party’s rights.
7.2	QuikOrder Warranties. QuikOrder represents and warrants the following:
	7.2.1	QuikOrder has full right to all Intellectual Property Rights contained in the Internet Order System, or has obtained such license(s) required for QuikOrder to perform its Services hereunder and license Franchisee as provided herein, and neither QuikOrder’s performance of obligations under this Agreement, nor any portion of the Internet Order System, or Franchisee’s participation in the Site and use of the Internet Order System shall infringe, misappropriate, violate or misuse the Intellectual Property Rights of any third party. If any element of the Internet Order System or any intended use of the Internet Order System is subject to any claim alleging infringement, misappropriation, violation or misuse of the Intellectual Property Rights of any person or entity, QuikOrder shall, in addition to its indemnification obligations set forth in Article 9.2 hereof, and at its sole expense: (i) procure the right to continue providing the alleged infringing Services; (ii) replace the Services with a comparable service which is non-infringing; or (iii) modify the Services to make them non-infringing while retaining all features, functionality and performance; or if (i), (ii) or (iii) is not commercially practicable, terminate this Agreement. Any such modified or replacement element shall conform and shall be subject to QuikOrder’s warranties contained herein.
	7.2.2	QuikOrder agrees to ensure that the Franchisee Order Site will not link to, contain, suggest, or refer to in any manner (i) anything that is lewd, obscene, libelous, offensive or inappropriate or unsuitable for children, (ii) any web sites of a Competitor, or (iii) any web sites of other companies unless specified in writing by Franchisee.
	7.2.3	QuikOrder has not entered into any existing contracts, confidentiality agreements, or the like which expressly or by implication prevent it from engaging in the Services hereunder or restrict the manner in any way in which the Services may be performed.
	7.2.4	QuikOrder warrants that it is in the business of providing the Services, and currently or previously has had multiple clients. QuikOrder has the proper means and is ready, willing, able to, and shall perform the Services of this Agreement at all times in a competent, professional, and businesslike manner, using standards, practices, and principles, to ensure that that Services are provided according to the standards and time deadlines set forth herein.
	7.2.5	QuikOrder has the requisite experience, knowledge and expertise, qualified personnel, suitable facilities and equipment (including all applicable hardware and software applications), including equipment that has the capability to accurately and timely process in Real-time whatever transaction capacity is desired by Franchisee to the extent set forth in Article 3.2.
7.3	Covenants.
	7.3.1	Each party shall comply with all applicable laws, ordinances, orders, rules, regulations and actions of the United States and of any political subdivision thereof.
	7.3.2	QuikOrder covenants that nothing linked to, contained in or referred to by the Site shall conflict with or violate any applicable laws or otherwise facilitate the commission of any immoral or offensive act; provided that QuikOrder shall not be liable for content, links or other materials provided by Franchisee or prepared to Franchisee’s specifications.
Article 8. Disclaimers.
8.1	Customer Orders. QuikOrder will not be responsible for, and will not verify, the accuracy, completeness or truthfulness of any Customer Orders or other information provided by Franchisee or any Customers, including erroneous estimated times, prices, menu offerings, promotions or coupons. Franchisee acknowledges and accepts all risk of loss arising from prank, fraudulent or unconsummated Customer orders, except to the extent resulting from the negligence, misuse, improper processing, or other fault of QuikOrder.
8.2	Outside Systems. QuikOrder will not be liable for any delays, failure or impairment of the Services resulting from transmission delays or limitations in any communications system, network, software, computer or other equipment not solely under the control of QuikOrder, including the Internet, the Internet connections and systems of Customers, telecom/network connections to Franchisee Restaurant Locations or Call Centers, and the systems used by Franchisee Restaurant Locations or Call Centers, and the foregoing shall not be, and the consequences thereof (including, but not limited to, bandwidth limitations, Internet congestion, packet loss, third party interference, deficient or dated browser software and other factors that can affect the ability of QuikOrder to deliver its services to Customers) shall not constitute or result in, a “Service Deficiency” or prevent an activity from being considered to be conducted in “Real-time”. Without limiting the foregoing, Franchisee acknowledges (a) that it is possible that Internet transmissions may not remain confidential and that QuikOrder cannot and does not guarantee the privacy, security, authenticity, non-corruption, lost data or delay in transmissions of Franchisee’s data transmitted over networks not under the control of QuikOrder, and (b) that QuikOrder shall not be responsible for any adverse consequences of transmission of the data of Franchisee or Customers via the Internet, and (c) that QuikOrder shall not be responsible for any problems that may be caused by any action by Franchisee or other third party acting at the direction of Franchisee.
8.3	EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, QUIKORDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES OR FRANCHISEE ORDER SITE, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, QuikOrder does not warrant that the operation of the Services or Franchisee Order Site will be uninterrupted or error free. QuikOrder’s sole liability and Franchisee’s exclusive remedy for breach of any warranties shall be the explicit remedies set forth in this Agreement.
8.4	EXCEPT WITH RESPECT TO THEIR RESPECTIVE INDEMNITY OBLIGATIONS IN SECTIONS 9 AND CONFIDENTIALITY OBLIGATIONS IN SECTION 11, NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM FOR CONSEQUENTIAL, INCIDENTAL, BUSINESS LOSS, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF A PARTY'S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR THE OPERATION OF THE SITE.
8.5	EXCEPT FOR ITS INDEMNITY OBLIGATIONS AS SET FORTH IN SECTION 9.2(c), QUIKORDER’S AGGREGATE LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE SERVICES, SHALL IN NO CASE EXCEED THE FEES PAID BY FRANCHISEE FOR ITS LAST BILLING CYCLE (ANNUAL OR QUARTERLY) HEREUNDER LESS DIRECT COSTS INCURRED AT THE DIRECTION OF OR FOR THE BENEFIT OF FRANCHISEE.
Article 9. Indemnification.
9.1	Indemnification by Franchisee. Franchisee will indemnify, defend and hold harmless QuikOrder and its parent, affiliates, subsidiaries, licensees, and successors and assigns of each, and all of their respective employees, agents, representatives, officers and directors, assigns (all referred to solely for purposes of this Section 9.1 as QuikOrder) from and against any and all damages, liabilities, losses, costs, claims, actions, suits, proceedings, costs and expenses (including reasonable attorney's fees and reasonable court costs) arising out of or in any way connected with or resulting from (a) breach of any of Franchisee’s warranties, representations, covenants or obligations under this Agreement, (b) any claims relating to errors in posting menu pricing, ordering or delivery service information if such errors are made solely as a result of information provided to QuikOrder by Franchisee, or (c) any claim that use of materials provided by Franchisee to QuikOrder or prepared to Franchisee’s specifications infringe any patent, trademark, copyright or trade secret or any other Intellectual Property Rights or similar rights of any third party. This indemnification shall survive the expiration or early termination (by any means) of this Agreement.
9.2	Indemnification by QuikOrder. QuikOrder will indemnify, defend and hold harmless Franchisee and its parent, affiliates, subsidiaries, licensees, and successors and assigns of each, and all of their respective employees, agents, representatives, officers and directors, and assigns (all referred to solely for purposes of this Section 9.2 as Franchisee) from and against any and all damages, liabilities, losses, costs, claims, actions, suits, proceedings, costs and expenses (including reasonable attorney's fees and reasonable court costs) arising out of or in any way connected with or resulting from (a) the performance of the Services undertaken to be performed directly or indirectly hereunder, (b) breach of any of QuikOrder’s warranties, representations, covenants or obligations contained herein, (c) any claim that Franchisee’s participation in and/or use of the Internet Order System infringe any patent, trademark, copyright or trade secret or any other Intellectual Property Rights or similar rights of any third party to the same extent and with the same limitations, if any, that Quikorder offers and provides to Pizza Hut Inc. The indemnification in this Section shall survive the expiration or early termination (by any means) of this Agreement.
9.3	Indemnification Procedures. The indemnities set forth herein will not apply unless the Party claiming indemnification promptly notifies the other of any matters in respect of which the indemnity may apply and of which the notifying Party has knowledge and gives the other full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof. The indemnified Party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. No failure to give timely notice shall relieve the identifying party of its indemnity obligation except to the extent that such delay shall have actually prejudiced the indemnifying party or caused it to incur additional costs, expenses or liability.
Article 10. Term and Termination.
10.1	Term. This Agreement shall be in effect from the Effective Date through December 31st 2009, unless this Agreement is terminated pursuant to the provisions of this Article 10.
10.2	Termination of Agreement between PHI and QuikOrder. This agreement between PHI and QuikOrder expires on December 31, 2009. Notwithstanding any early termination of the agreement between PHI and QuikOrder (by any means, for any reason, by either PHI or QuikOrder), this Agreement shall remain in full force and effect (subject to Franchisee’s right to terminate as set forth in Section 10.3 below), except that, in such event, unless otherwise agreed PHI, Franchisee and QuikOrder shall use another web site or URL not identified by the domain name pizzahut.com in order for QuikOrder to continue to provide substantially similar Services to Franchisee, it being the understanding of the parties that in such circumstances Customers of Franchisee may not access the Franchisee Order Site through the domain name pizzahut.com, unless PHI provides approval, in its sole discretion, to such use of the domain name pizzahut.com.
10.3	Termination by Franchisee. QuikOrder agrees that Franchisee may, in addition to any other remedy Franchisee may be entitled to at law or in equity, immediately terminate this Agreement if (i) QuikOrder fails to cure, within thirty (30) days of written notice thereof from Franchisee, any material breach or failure of QuikOrder in the provision of Services as required hereunder, or if such failure is not susceptible of cure within thirty (30) days, QuikOrder fails to undertake or initiate cure within thirty (30) days and such cure is not completed within sixty (60) days of such notice, or (ii) any representation or warranty of QuikOrder in this Agreement is breached or was or is incorrect in any material respect when made or deemed made. Franchisee may also terminate this Agreement, at Franchisee’s option (with or without cause, for any reason, at any time), by providing QuikOrder at least thirty (30) days prior written notice, in accordance with the provisions set forth in Schedule 3, including the requirement to pay the early termination fee.
10.4	Termination by QuikOrder. QuikOrder may terminate this Agreement if Franchisee fails to pay an invoice that is not subject to dispute by Franchisee or fails to fulfill any other obligation material to QuikOrder hereunder and such failure continues for ten (10) days after receipt by Franchisee of written notice from QuikOrder specifying the failure.
10.5	Termination for Insolvency. If either Party becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency or the appointment of a receiver, conservator, or similar officer, or makes an assignment for the benefit of all or substantially all of its creditors or enters into any agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other Party may, by giving prior written notice to the non-terminating Party, terminate this Agreement as of the date specified in such notice.
10.6	Payment Upon Termination. Upon termination of this Agreement, Franchisee will pay to QuikOrder all amounts which are then due and owing, as provided for on Schedule 3.
10.7	Survival. The provisions of Articles 5, 6 7, 8, 9, 11 and 12 shall survive the termination or expiration, by any means, of this Agreement.
Article 11. Confidentiality. In the course of performing Services for Franchisee, QuikOrder will be exposed to confidential proprietary information belonging to Franchisee which pertains to the operation of Franchisee’s business in general, and in particular, QuikOrder will be exposed to information and data relative to finances, operations, development, production, control, sale and marketing of foods including, but not limited to, economic information, business plans, marketing strategy, technical information, know-how, process and production information (hereinafter "Confidential Information"). QuikOrder agrees to hold in confidence and agrees not to disclose to others without the prior written consent of Franchisee, all Confidential Information which has been or will be disclosed to QuikOrder either directly or indirectly and to limit QuikOrder's use of Confidential Information solely in conjunction with performance of Services for Franchisee. It is understood that the foregoing obligations of confidentiality and non-use do not apply to any information QuikOrder can show to be in the public domain or which was in QuikOrder's possession prior to beginning performance of any Services for Franchisee and which was not acquired directly or indirectly from Franchisee.
Article 12. General.
12.1	Assignment. This Agreement shall not be assignable by either Party without the prior written consent of the other. No assignment of this Agreement shall relieve the assignor until this Agreement shall have been assumed by the assignee. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee.
12.2	Transfer of Interest. QuikOrder agrees that it will not allow any transfer of the controlling interest or the ultimate beneficial ownership of QuikOrder to a Competitor or any entity whose image is inconsistent with the Pizza Hut image as a family restaurant, or to any entity who is incapable of properly operating the Internet Order System. Any such transfer will result in a default hereunder.
12.3	Governing Law. This Agreement is entered into, and will be interpreted and enforced in accordance with the internal laws of, the State of Texas, without regard to the choice of law provisions, statutes, regulations or principles of this or any jurisdiction.
12.4	Merger. This Agreement (together with each schedule that is attached to and made a part hereof or incorporated by reference into this Agreement) constitutes the entire agreement and understanding of the Parties with respect to its subject matter discussed in this Agreement. All prior discussions or negotiations (written or oral) are merged into this Agreement and no representations, inducements, promises or agreements not embodied in this Agreement survive the execution of this Agreement. This Agreement may not be modified or amended except by means of a written document, signed by the Party to be bound, specifically referring to this Agreement.
12.5	Waiver. No waiver of any term or provision hereof, or any right hereunder, will be effective unless made in writing, executed by the Party to be bound thereby.
12.6	Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision will be deemed to be severed herefrom, without affecting the remaining portions of this Agreement, which will remain in full force and effect; provided, however, that the severing of any such provision will not materially change the substance of this Agreement.
12.7	Time of the Essence. All time limits stated in this Agreement, and any schedules and attachments are of the essence.
12.8	Captions. The captions used herein are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of the intent of any Article, Section or Paragraph hereof.
12.9	Authorization. The Parties represent and warrant that they have the full and complete authority to enter into and perform this Agreement. Each Party executing this Agreement on behalf of the Parties represents and warrants that he or she has the full and complete authority to do so and that the Parties will be bound thereby.
12.10	Dispute Resolution. In the event of a claim, dispute and/or controversy arising out of or in relation to the performance, interpretation, application or enforcement of this Agreement, each Party shall appoint an executive officer to meet for the purpose of resolving any claim, dispute, and/or controversy as a condition precedent to the initiation of any adjudicative action or proceeding, including arbitration. No legal proceeding shall take place unless the executive officers conclude that after thirty (30) days of the initial meeting, that the resolution of the claim, dispute and/or controversy through continued negotiation will not be successful. All applicable statutes of limitations and defenses based on the passage of time shall be tolled while the requirements of this provision are pending. The Parties will take such action, if any, required to effectuate such tolling.
12.11	Notices. Any notice, request, instruction or other communication required or permitted to be given hereunder will be in writing and will be deemed to have been duly given (a) on the date of delivery in person, (b) one business day after being deposited with a nationally recognized overnight courier service, or (c) ten (10) calendar days after deposit in the U.S. mail, certified, return receipt requested, postage prepaid, all addressed as set forth on Schedule 1, until Franchisee or QuikOrder (as the case may be), gives notice, in writing, of a new address.
12.12	Force Majeure. Neither Party shall be liable to the other for delay in performance of or inability to perform any obligations specified hereunder if solely due to events beyond the reasonable control or safeguard of such party, such as war, civil disturbances, acts of military authorities, governmental action, earthquakes, floods, fires, power loss, regional failure of telecommunications systems or components, break-ins, sabotage, and intentional acts of vandalism. The Party whose performance will be delayed shall notify the other Party of any such delay and, if the delay is curable or its adverse impact reduced at a reasonable expense, or its likely adverse impacts reduced, shall take all economically reasonable action necessary to cure or reduce the impact of the delay at its own expense. If such delay is not cured within a reasonable time, the Party waiting for performance may terminate this Agreement without any liability to the Party undergoing the delay.
By clicking on the “I AGREE” button below, (1) YOU AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, (2) YOU ARE CONSENTING TO ENTER INTO THIS AGREEMENT IN ELECTRONIC FORM AND (3) YOUR CLICK SHALL CONSTITUTE YOUR ELECTRONIC SIGNATURE ACCEPTING THIS AGREEMENT. This Agreement is made and entered into as of Nov 14, 2025. Any person accepting this Agreement on behalf of another entity further represents and warrants that such individual is a duly authorized representative, having the power and authority to bind such entity to this Agreement. If you do not wish to accept this Agreement, you should click “I DO NOT AGREE.”
AGREED: Quikorder, Inc.



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