DEALER AGREEMENT

DEALER AGREEMENT

This DEALER AGREEMENT (“Agreement”) is made by and between TRANSBOUNDARIES CORPORATION, d/b/a MEALCLICK, a California corporation (“MealClick”) and you (“Dealer”). This Agreement shall be effective as of date of the Dealer’s signature of this Agreement (“Effective Date”.)

1. APPOINTMENT.

1.1 Non-Exclusive. MealClick hereby appoints Dealer, and Dealer hereby accepts such appointment, as MealClick’s nonexclusive sales representative for the sale of the MealClick services listed in Exhibit A (the “Services”). Any software provided by MealClick as part of the Services (“MealClick Software”) is licensed and not sold.

1.2 Authority. Dealer’s sole authority shall be to solicit orders for the Services and perform the tasks listed in Section 2 hereof or such other tasks as the parties shall mutually agree upon in accordance with the terms of this Agreement. Dealer shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of MealClick, nor shall MealClick be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Dealer except as specifically authorized under this Agreement or in writing by MealClick.

1.3 Independent Contractor. Dealer is an independent contractor in the performance of this Agreement and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of Dealer’s activities, or those of its employees or agents in the performance of this Agreement. Dealer has no authority, right or ability to bind or commit MealClick in any way or to enter into any contract on behalf of MealClick (including, without limitation, by accepting orders) or to sell any Services and will not attempt to do so or imply that it may do so. MealClick is in no manner associated with or otherwise connected with Dealer’s employment of other persons or incurring of other expenses. Except as expressly provided herein, MealClick shall have no right to exercise any control whatsoever over the activities or operations of Dealer.

2. OBLIGATIONS OF DEALER.

2.1 Promotion. Dealer shall use its best efforts and devote such time as may be reasonably necessary to promote the sale of Services.

2.2 Standard and Compliance. Dealer shall conduct all of its business in its own name, will maintain high standards of professionalism, will at all times comply with all applicable laws and regulations, and will refrain from any conduct that tends to damage the reputation of MealClick or the Services. Dealer further agrees to comply with all applicable MealClick policies that may be provided by MealClick to Dealer from time to time.

2.3 Marketing. Dealer agrees to support local field marketing events and activities, including making introductions to and arranging meetings with potential customers on behalf of MealClick, and to assist MealClick in the preparation and submission of presentations, proposals and quotations for contracts or orders and in assessing the financial status of customers and potential customers, at the times and in the manner reasonably requested by MealClick.

2.4 Statements. Dealer shall not, without MealClick’s prior written approval, alter, enlarge or limit orders, make representations or guarantees concerning MealClick’s Services, accept the return of, or make any allowance for such Services.

2.5 Submission of Customers. Dealer shall submit all potential customers to MealClick for acceptance pursuant to Section 4.1.

2.6 Maintenance and Support. Dealer shall provide customers accepted by MealClick with maintenance and support services in accordance with Exhibit B.

2.7 Dealer Fee. In consideration of the rights afforded to Dealer under this Agreement, including the right to solicit orders for the Services and download any MealClick Software on behalf of customers, Dealer agrees to pay to MealClick, within ten (10) days following the Effective Date, the Dealer Fee set forth in Exhibit A.

2.8 Investigation. Dealer shall investigate customer inquiries received by MealClick and referred to Dealer.

2.9 Demonstrations. Dealer shall assist MealClick in demonstrating the Services to customers and potential customers.

2.10 Liaison. Dealer shall provide customer liaison services as agreed upon by MealClick and Dealer, including, but not limited to making site visits to customers, as requested by MealClick or customers, to service and train customers regarding the Services (including MealClick Software).

2.11 Information. Dealer shall furnish such information as is reasonably necessary to enable MealClick to supply Services that shall meet customers’ requirements.

2.12 No Modification or Reverse Engineering. Dealer acknowledges and agrees that the Services (including MealClick Software) and their structure, organization, and subcomponents constitute valuable trade secrets of MealClick and its suppliers. Accordingly, except as expressly agreed to in writing by MealClick, Distributor agrees not to (i) modify, adapt, or alter the Services (including MealClick Software); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or recreate the Services (including MealClick Software); or (iii) assist any third party, including, but not limited to customers, in connection with any of the foregoing activities.

2.13 Assistance. Dealer shall furnish such other assistance as MealClick may from time to time reasonably request.

3. OBLIGATIONS OF MEALCLICK.

3.1 Materials. MealClick shall supply Dealer from time to time with reasonable amounts of descriptive materials and literature, including sales brochures, installation, operating and maintenance manuals, technical descriptions, and other specialized data and information, to enable Dealer to promote the sale of the Services and to undertake its duties and responsibilities in accordance with Section 2 of this Agreement.

3.2 Technical Services. MealClick will provide technical services to Dealer for technical demonstrations.

3.3 Maintenance and Support. MealClick will provide Dealer with maintenance and support services in accordance with Exhibit B.

4. ORDERS, EXPENSES, PAYMENTS, BILLING AND COLLECTIONS.

4.1 Order Form. Each order placed with MealClick by or through Dealer shall include MealClick’s standard Merchant Agreement and Auto Pay Agreement signed by the potential customer be it placed and accepted online through MealClick’s website or signed with a wet signature. Copies of the Merchant Agreement and Auto Pay Agreement in effect as of the Effective Date are attached hereto as Exhibit C and Exhibit D respectively and/or available at MealClick’s website. MealClick reserves the right to modify the Merchant Agreement and Auto Pay Agreement from time to time in its sole discretion and shall provide Dealer with a copy of the updated documents following any such modification or the Dealer may at any time obtain the latest copy of the update documents from MealClick’s website. Upon receipt of the modified Merchant Agreement and/or Auto Pay Agreement, Dealer will utilize the updated document in connection with its solicitation of customers hereunder. Dealer shall forward all orders, including the completed and signed Merchant Agreement and Auto Pay Agreement, to MealClick’s principal office, and no contract award or order shall be binding on MealClick until accepted in writing by MealClick. Dealer acknowledges that MealClick Software may be downloaded for the purchased customer location(s) only after the Dealer Fee has been paid and a completed and signed Merchant Agreement and Auto Pay Agreement are submitted to, and accepted by, MealClick. MEALCLICK RESERVES THE RIGHT TO ACCEPT, REJECT, MODIFY, OR CANCEL, IN WHOLE OR IN PART, ANY OR ALL ORDERS RECEIVED AND/OR ACCEPTED FOR THE SERVICES.

4.2 Expenses. Dealer shall be responsible for all expenses incurred by it in connection with the implementation and performance of its duties and obligations under this Agreement, including, but not limited to: (a) expenses incurred in fulfilling its duties and responsibilities as provided in Section 2; (b) compensation, bonuses, and benefits, if any, for its personnel; (c) costs and expenses associated with establishing and maintaining its sales organization and offices; (d) advertising and promotion expenses; and (e) any and all taxes, fees, duties, tariffs or charges which may be imposed on Dealer.

4.3 Payments and Collections. It is expressly understood by Dealer that full responsibility for all collection rests with MealClick. All orders shall be taken and contracts executed in the name of MealClick, which shall invoice customers and carry accounts in its own name as creditor, except in cases where a different procedure is agreed upon in advance in writing. Dealer shall have no authority to accept any payments from customers.

4.4 Dealer Payment. MealClick shall pay the Dealer 25% of the Services yearly subscription fee or $250.00 whichever is less per customer location (“Fees”). The same Fees will be paid on license renewals or extensions as long as the Dealer is active and continues to fulfill its obligations under this Agreement. No Fees will be paid on license renewals or extensions if the Dealer cold referred prospects and the Dealer was not actively involved with the customer and/or failed to fulfill its obligations under this Agreement.

Fees are paid by check or credit note once per month at the end of the calendar month after the customer has signed up for the Services and MealClick has collected all the funds. If the customer signs up or the customer yearly renewal anniversary is towards the beginning of the month, the Dealer shall be paid at the end of the same calendar month. If the customer signs up or the customer yearly renewal anniversary is towards the middle or the end of the month, the Dealer shall be paid at the end of the following calendar month. Residual yearly Fees are paid once per year as long as the customer continues to use MealClick’s Services year after year.

In the event MealClick is owed any charge or fee by the Dealer under any other agreement between the Dealer and MealClick or for the purchase of MealClick products, MealClick shall have the right to deduct such charge or fee from the Fees payable to the Dealer in accordance with this Agreement.

Fees paid by MealClick to the Dealer under this Agreement, shall be made free and clear and without any deduction for any and all applicable local, provincial, state, and federal taxes as further defined in section 1.3.

5. CONFIDENTIALITY. All information obtained by Dealer in connection with its activities hereunder, including without limitation all marketing, customer, technical and cost information furnished to Dealer by MealClick or received by Dealer from customers or potential customers in connection with proposals, bids, or contracts, shall be treated as confidential and proprietary information of MealClick that Dealer shall not use for its own benefit or for any purpose other than fulfilling its obligations under this Agreement, and shall not disclose to any third party except with MealClick’s prior written consent. The foregoing obligation shall not apply to information which was (a) otherwise publicly available; (b) previously known to Dealer free of any duty of confidentiality; or (c) required to be disclosed pursuant to applicable law. This obligation of confidentiality shall survive termination of this Agreement for any reason.

6. TRADEMARKS. Dealer recognizes and concedes for all purposes that all trademarks, trade names, or identifying slogans related to the Services, whether or not registered, constitute MealClick’s exclusive property and cannot be used except in connection with promoting and selling the Services. MealClick hereby grants, and Dealer hereby accepts, a non-exclusive, non-transferable, non-assignable, royalty free license to use MealClick’s name, trademark(s), and logo (collectively “Proprietary Marks”) solely for purposes of marketing the Services; provided, however, that Dealer will provide MealClick with samples of each use of Proprietary Marks prior to such use and will refrain from all uses that MealClick informs Dealer are detrimental to MealClick’s investment in such Proprietary Marks. All price lists, sales or promotional literature and other material prepared by or for the Dealer with respect to the Services shall bear appropriate copyright and/or trademark notices as prescribed by MealClick. Dealer shall promptly inform MealClick in writing of any known or reasonably suspected violation of MealClick’s trademarks or copyrights. Dealer agrees that any case of Proprietary Marks shall inure to the benefit of MealClick. Dealer agrees it will not use, register or otherwise appropriate any name, mark or logo which is similar to or may be confused with any name, mark or logo licensed by MealClick hereunder.

7. LIMITED WARRANTY.

7.1 Warranty. Any warranty for the Services shall be fulfilled directly from MealClick to the customer. Dealer shall have no authority to accept any returned Services.

7.2 Disclaimer. MEALCLICK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

8. INDEMNIFICATION.

8.1 MealClick Indemnification. MealClick agrees to indemnify and hold Dealer harmless against, and to pay all losses, costs, damages and expenses whatsoever, including without limitation reasonable attorneys’ fees, finally awarded against Dealer by a court of competent jurisdiction resulting from a third party claim of infringement or alleged infringement of United States patents, copyrights, trademarks or trade names, resulting from the sale of MealClick’s Services, or arising on account of warranty claims related to the Services; provided that Dealer (a) promptly delivers to MealClick any notices or papers served upon it in any proceeding covered by this indemnity; (b) provides MealClick full control of the defense or settlement of any such action or claim; and (c) provides assistance to MealClick in the defense of such claim or action at MealClick’s request and reasonable expense. Notwithstanding the foregoing, MealClick shall not be responsible and shall not indemnify Dealer for any unauthorized modifications to the Services, any combinations of the Services with other services or products not provided by MealClick, or for any representation regarding the Services made by Dealer without MealClick’s specific prior written approval.

8.2 Dealer Indemnification. Dealer shall be solely responsible for, and shall indemnify and hold MealClick harmless from and against, any and all claims, damages, liabilities, losses, costs or expenses, including without limitation reasonable attorneys’ fees, arising out of the acts or omissions to act of Dealer, its employees or its agents, including without limitation any representations or warranties not authorized by MealClick and made by Dealer, its employees or agents regarding the Services; provided that MealClick (a) promptly delivers to Dealer any notices or papers served upon it in any proceeding covered by this indemnity; (b) provides Dealer full control of the defense or settlement of any such action or claim; provided that Dealer shall not settle or compromise any claim in a manner that does not unconditionally release MealClick without first obtaining MealClick’s written consent; and (c) provides reasonable assistance to Dealer in the defense of such claim or action at Dealer’s request and reasonable expense.

9. TERM AND TERMINATION.

9.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated pursuant to the terms herein.

9.2 Termination. This Agreement may be terminated for convenience and without cause by either party upon fifteen (15) days prior written notice.

9.3 Effect of Termination. Termination of this Agreement for any reason shall not affect obligations that have accrued as of the date of termination. Sections 5, 6, 7.2, 8, 9.3, 9.4, 10, 11 and 12 shall survive termination or expiration of the Agreement. Upon termination of this Agreement for any reason, Dealer immediately shall cease the use of all MealClick proprietary information and Proprietary Marks and shall return to MealClick (a) all copies of any documents or other tangible materials that contain or refer to any of MealClick’s confidential information or Proprietary Marks and (b) all MealClick brochures, literature, documentation and materials within Dealer’s control. Dealer understands that after termination of this Agreement, it shall have no right whatsoever to continue as a sales representative of Services regardless of any undocumented continuation of the relationship with MealClick.

9.4 No Liability. MealClick shall incur no liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by Dealer arising from or incident to any termination of this Agreement by MealClick which complies with the terms of the Agreement whether or not MealClick is aware of any such damage, loss or expenses.

10. LIMITATION ON LIABILITY. MEALCLICK WILL NOT BE LIABLE UNDER ANY SECTION OR SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (I) LOST PROFITS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) PUNITIVE OR EXEMPLARY DAMAGES OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT SHALL MEALCLICK’S LIABILITY TO DEALER HEREUNDER EXCEED $250. DEALER ACKNOWLEDGES THAT THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND IN ITS ABSENCE THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. GOVERNING LAW AND VENUE. This Agreement will be governed by the laws of the State of California without regard to any of its conflict of laws provisions that would cause the laws of another jurisdiction to apply. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court in Orange County, California, and Dealer irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

12. GENERAL. This Agreement, including the Exhibits attached hereto, constitutes the entire understanding of the parties; shall supersede any oral or written agreements; and shall be binding upon and inure to the benefits of the parties’ successors and assigns. It may not be modified in any way without the written consent of both parties. Dealer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without MealClick’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and shall be deemed to be fully given when personally delivered or sent by confirmed facsimile or two (2) days after being sent by commercial courier to the addresses first set forth above, which may be changed from time to time pursuant to ten (10) days’ advance notice. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum permissible extent, and the remaining provision of this Agreement will remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

EXHIBIT A

ADDITIONAL TERMS

1. Services. “Services” shall mean MealClick’s online food ordering services (and related documentation) which include the following features:

· Application Service Provider (ASP) system for online food ordering

· OCA Gateway

· Specific MealClick hardware and software

MealClick may change the Services at any time and from time to time in its sole discretion.

2. Dealer Fee. The Dealer Yearly Fee to be paid by Dealer to MealClick is: $0.00

EXHIBIT B

MAINTENANCE & SUPPORT SERVICES

1. ADDITIONAL DEFINITIONS. Capitalized terms, not otherwise defined in this Exhibit, will have the meanings set forth in the Agreement.

“Error” means a software or system bug or defect that cannot be solved by Dealer’s first level support teams and which results in the Services not performing properly classified with the following priority levels as determined by MealClick:

a. Severity 1: Existing production site is “down” or Services (including MealClick Software) are made non-functional.

b. Severity 2: A major function is experiencing an Error which causes major inconvenience; common operations fail consistently; application crashes readily.

c. Severity 3: A fundamental function is experiencing an intermittent Error, or a common operation sometimes fails; a less common operation fails consistently.

d. Severity 4: A less common operation fails occasionally; all other types of errors.

2. SUPPORT REQUIREMENTS

2.1 Dealer Support Requirements: Unless otherwise agreed in writing, Dealer shall be fully responsible for all customer technical assistance and support services, including without limitation, any and all installation, maintenance, testing, management and control of the customer’s use of the Services (including MealClick Software). Dealer shall not direct any customer to contact MealClick directly for any technical assistance or support services; provided, however, MealClick reserves the right to contact a customer directly in its sole discretion. Notwithstanding the generality of the foregoing, Dealer will provide Level 1 support to customers which, includes, without limitation, deployment doubts, concepts and product features, answering general services questions, account status and verification, specific information needed for configuring software, suggestions, requests for new product features and enhancements. All troubleshooting steps and discoveries must be documented and provided to Level 2 support when a customer call is escalated. Dealer may at its sole discretion charge customer for any and of such provided services as the Dealer see fit and reasonable. In addition, Level 1 support includes, but is not limited to, the following:

· Access the Services to create and maintain restaurant menus.

· Use the Services to configure web pages, graphics and links for menus.

· Assist customers to add menu options and option details.

· Perform deployment and installation services.

· Perform on-site physical maintenance.

· Attach in-restaurant printers.

· Run network and printer cabling as required.

· Upgrade hardware when necessary.

· Perform in-store hardware and software troubleshooting services.

· Test and verify proper operation of the Services ordering process.

· Installation of license for Authorized OCA gateway software if required for MaitreD integration.

· Apply patches and upgrades, if required of OCA gateway or third-party packages.

· Assist customer with setup, troubleshooting and maintenance of in-restaurant operating systems, along with any anti-virus or firewall programs.

· Maintenance of customer’s network infrastructure, including routers, hubs, switches, cabling, and similar.

· Taking calls from customers regarding problems with the Services.

· Documenting the customer’s contact information and problem description.

· Assigning severity based on customer’s reported problem.

· Collect initial configuration, diagnostic information and any other information as necessary.

· Initial search of help desk database and other information sources and Services related documentation as needed.

· Basic analysis of customer query or problem.

· If Dealer has exhausted its resources and is still unable to resolve a particular issue, then Dealer can escalate the issue to receive Level 2 support from MealClick, by sending appropriate problem details to AllSupport@mealclick.com.

· Communicate workarounds and fixes to the customer.

· Verify that workarounds and fixes are acceptable to the customer and then close the case.

In addition to the above, Dealer shall provide reasonable assistance to MealClick in connection with the Level 2 and Level 3 support services described below, all within the time frames indicated below in accordance with the Severity Level assigned to the incident by MealClick.

2.2 MealClick Support Requirements. MealClick will provide Dealer with access to online information, in the form of troubleshooting guides, FAQs, a support portal, or otherwise, that may be used to resolve Level 1 support issues. Additionally, MealClick will provide to Dealer (not Customer) Level 2 and Level 3 support. Level 2 support includes receiving calls from Dealer escalated by Level 1 support, handling standard issues that have documented procedures, resolutions or patches and programming doubts. Remote access to the production site may be necessary for providing Level 2 support. Level 3 support includes all undocumented and non-standard issues raised by Level 2 support. Level 3 support uses commercially reasonable efforts to discover the root cause of the issue, implement the resolution, and document the issue and the resolution. After the issue and resolution are documented, first and second level support become responsible for handling the issue. Generally, Level 2 and Level 3 support involve longer analysis and working time, rather than immediate resolution. As part of its support services hereunder, MealClick will use commercially reasonable efforts to adapt, re-configure or re-program the Services, as applicable, in order to correct in a timely fashion any Errors escalated to MealClick by Dealer, after Dealer has exhausted its resources and is still unable to resolve the Error, all within the time frames indicated below in accordance with the Severity Level assigned to the incident by MealClick. Any failure or inability by MealClick to correct any such Error, or failure or inability to do so in a timely fashion, will not be deemed a breach of MealClick’s obligations hereunder.

3. RESPONSE GOALS.

Priority	Response
Severity 1	MealClick and Dealer will commit all necessary resources around the clock in an attempt to resolve the Error.
Severity 2	MealClick and Dealer will commit full-time resources during normal business hours in an attempt to resolve the Error
Severity 3	MealClick and Dealer will commit resources during normal business hours in an attempt to resolve the Error
Severity 4	MealClick and Dealer will commit resources during normal business hours in an attempt to resolve the Error

4. ENHANCEMENTS

If, in MealClick’s sole discretion, MealClick determines that a support request constitutes the development of a new feature or enhancement to the Services, MealClick will consider adding the enhancement to its development roadmap.