Last Updated: September 7, 2022.
By executing an Order Form (defined below), the customer identified on such Order Form (“Customer” or “Client”) agrees to the following terms and conditions (“Terms and Conditions”), which together with the terms of the Order Form entered into between Customer and Clubfeast Inc. (“Club Feast”) shall govern Customer's access and use of the Services and related services (collectively, the “Agreement”).
Club Feast may amend the Terms and Conditions at any time without notice by posting the revised version on its website or communicating it to Customer through the Service (each a “Revised Version”). The Revised Version will be effective as of the time it is posted through the Service or Club Feast sends Customer an email notice of the Revised Version, but will not apply retroactively. Customer's continued use of the Service after the posting of a Revised Version constitutes its acceptance of such Revised Version.
Capitalized terms shall have the meaning given to them in Section 1 (Definitions) below or as otherwise defined in the Agreement. Where applicable, certain references to Club Feast may also be deemed to include Club Feast's payment provider(s), which may be updated from time to time without notice to Customer. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) or hardware subsequently procured by the Customer from Club Feast will be subject to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- “Buyer” means a buyer who inquires about, attempts to purchase or purchases Customer's products or services.
- “Customer Data” means data or information submitted by a User or a Buyer through the Services.
- “Effective Date” means the date this Agreement becomes effective as set forth on the Order Form
- “Implementation Services” means implementation, training and/or configuration services.
- “Order Form” means the ordering document pursuant to which Customer subscribes to the Service, which is executed by the parties and which specifies, among other things, the Authorized Locations, the Services ordered, and the applicable fees and payment terms.
- “Service” means the Club Feast white glove curated food delivery service from premier restaurant partners.
- “Support Services” mean the technical support services provided by Club Feast as set forth in Section 2.2 below.
- “Users” means Customer's employees or contractors authorized by Customer to use the Service that have been supplied user identifications and passwords by Customer (or by Club Feast at Customer's request).
- Provision of Service. Club Feast will provide the Service subject to the terms and conditions of this Agreement. This Agreement includes the Order Form, which is incorporated herein by reference. Club Feast will: (i) provide Customer with the authentication credentials Users will need to access the Service; (ii) provide Support Services in accordance with Section 2.2.; and (iii) make the Service generally available as specified in the Order Form and the terms and conditions set forth herein.
- Support Policy and Terms. Club Feast will provide standard technical support to Customer for the Service via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org. Club Feast will use commercially reasonable efforts to respond to all helpdesk tickets within two business days. For clarity, the Support Services do not extend to any if applicable hardware or systems, which must be supported by the third-party manufacturer.
Use of Service.
- Users; Authorized Locations. Customer may grant access to the Service only to Users at Authorized Locations.
- Customer Responsibilities. Customer is responsible for all activities that occur under User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service, and notify Club Feast promptly of any such unauthorized use; and (iii) comply with all applicable laws, rules and regulations in using the Service.
- Use Restrictions. Customer shall use the Service solely for its internal business purposes in accordance with this Agreement. Customer shall not, and shall ensure Users do not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) send spam or otherwise duplicative or unsolicited messages via the Service; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks; or (vii) otherwise use the Service in violation of this Agreement.
- Customer Warranties. Customer represents, warrants and covenants that (i) any sales transaction submitted by Customer will represent a bona fide sale of goods or services by Customer to a Buyer; (ii) any sales transactions submitted by Customer will accurately describe the goods and/or services sold and delivered to a Buyer; (iii) Customer will fulfill all of its obligations to each Buyer for which Customer submits a transaction and will resolve any consumer dispute or complaint directly with such Buyer; (iv) Buyer and all transactions initiated by Customer will comply with applicable laws, rules and regulations; (v) except in the ordinary course of business, no sales transaction submitted by Customer through the Services will represent a sale to any principal, partner, proprietor, or owner of Customer's entity; (vi) neither Customer nor any of its employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by applicable laws, or this Agreement, or engage in the unauthorized use, transfer or disclosure of the same; and (vii) Customer's use of the Services will be in compliance with this Agreement; and (viii) Customer has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard personal information as well as other data associated with the Services and Customer's obligations under this Agreement.
- Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Club Feast's website, offer products and services related to the Service that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of application programming interfaces (“APIs”). Club Feast does not warrant any such third-party provider or any of their products or services, whether or not such products or services are designated by Club Feast as “certified,” “validated,” “supported” or otherwise. Club Feast may terminate the links between any third party service and the Service at any time for any reason, including changes in interoperability requirements, policies or fees charged by such third-party providers to Club Feast or any Users. Any exchange of data or other interaction between Customer (or a User) and a third-party provider, and any purchase or use by Customer (or a User) of any product or service offered by such third-party provider, is solely between Customer (or such User) and such third-party provider, and Club Feast will have no liability or obligation with respect to such exchange or interaction. Club Feast shall pass through to Customer and each User any warranties given by a third-party provider in connection with the products and services used by Club Feast to provide the Service to the extent permitted by the terms and conditions of such warranties. For service, support, or warranty assistance, Customer should contact the manufacturer directly. CLUB FEAST MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
Fees & Payment.
- Fees. In addition to Processing Fees, Customer shall pay the fees for the Service as specified in the Order Form (“Service Fee”); provided that Club Feast reserves the right to change the Service Fee or the total Processing Fees for any Renewal Term upon 30 days prior notice to Customer, with such change effective upon the first day of the Renewal Term. Any continued use of the Service by Merchant subsequent to a change in the Service Fee will be deemed an acceptance of these changes by Customer. Club Feast may also impose a surcharge on payment processed by Stripe as party of the Stripe Payment Services if set forth in an Order Form (a “Surcharge”). If not specified in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Club Feast and notifying Club Feast of any changes to such information. If any invoiced amount is not received by Club Feast by the due date, then without limiting Club Feast's rights or remedies, (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (ii) Club Feast may condition future subscription renewals and Order Forms on payment terms shorter than those specified in this Section 5.1. If Customer's account is 15 days or more overdue, Club Feast may suspend the Service until such amounts are paid.
- Taxes. Club Feast's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Club Feast's income. If Club Feast has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Club Feast with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Club Feast Technology. The Service includes (i) the Club Feast name, the Club Feast logo, the www.clubfeast.com/ domain name, the product and service names associated with the Service; (ii) audio and visual information, documents, software and other works of authorship, including training materials; and (iii) other technology, including graphical user interfaces, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “Club Feast Technology”). Other than as expressly set forth Section 6.2 below, no license or other rights in or to the Club Feast Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights in the Club Feast Technology are hereby expressly reserved to Club Feast. Customer acknowledges and agrees that as between the parties, all intellectual property and proprietary rights in and to the Service (including all APIs and other software and technology used to provide the Service) shall solely vest and remain vested in Club Feast and its third party licensors. Club Feast shall also remain the sole and exclusive owner of any modifications, improvements, enhancements and derivative works of the Service and any other intellectual property, and any proprietary or intellectual property rights in and to the foregoing, that Club Feast may create as a result of the Implementation Services. Notwithstanding the foregoing, risk of loss and title for any information passed to Customer upon delivery to Customer.
- License Grant. Club Feast grants Customer, during the term of this Agreement, a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service, and to permit Users at the locations specified on an Order Form the right to access and use the Service during the subscription term, in each case solely in accordance with the terms of this Agreement (including the Order Form).
- License Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or Club Feast Technology; (ii) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on Customer's own intranets; or (iii) disassemble, reverse engineer, or decompile the Service or Club Feast Technology; (iv) reproduce, distribute, perform or display the Service or Club Feast Technology or any derivatives thereof for or to any third-parties; (v) use the Service or Club Feast Technology or any derivative thereof for any illegal purpose; (vi) alter or remove Club Feast's or its licensors' names, trademarks, copyright notices, disclaimers or other restrictive legends on the Services or Club Feast Technology; or (vii) access the Service in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
- Customer Data. Customer agrees Club Feast may access reproduce, use and disclose Customer Data and aggregate, anonymous data regarding the Service, in order to provide the Service, Implementation Services and Support Services, and further that Club Feast may retain and use anonymous data during and after the Term to improve and market the Service. Customer warrants that it will comply with all applicable laws, regulations, notices and guidelines relating to data privacy and that it has provided all notices and obtained all consents, rights and authorizations necessary to collect and provide the Customer Data to Club Feast and for Club Feast's use, retention, disclosure and other processing of the Customer Data in accordance with this Agreement.
- CCPA Service Provider. Notwithstanding any other provision in this Agreement, for the purposes of the California Consumer Privacy Act (“CCPA”), to the extent that Customer is a Business and shares Customer Data which is Personal Information with Club Feast for the purposes of this Agreement, Club Feast agrees that it will not collect, retain, use or disclose Personal Information except as necessary to perform the Service or as otherwise permitted by the CCPA, including retaining, using, or disclosing any Personal Information for a Commercial Purpose other than providing the Services. For the purposes of this section, “Business”, “Commercial Purpose”, “Personal Information” and “Sale” have the meanings as set out in the CCPA.
- Suggestions. Customer hereby grants to Club Feast a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service or Club Feast's provision of Implementation Services, Support Services or any other services.
- Definition of Confidential Information. The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form), the Customer Data, the Service, the Implementation Services, the Club Feast Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party
- Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
- CLUB FEAST AND ITS LICENSORS AND SUPPLIERS FURNISH THE SERVICE AND IMPLEMENTATION SERVICES “AS IS.” CLUB FEAST, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, PROMISE, OR GUARANTEE, EXPRESS OR IMPLIED, REGARDING THE QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- CLUB FEAST AND ITS LICENSORS AND SUPPLIERS OFFER NO ASSURANCE OF UNINTERRUPTED OR ERROR-FREE SERVICE. CLUB FEAST AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE TEXT, GRAPHICS, LINKS, OR OTHER ITEMS CONTAINED ON, WITH OR WITHIN THE SERVICE, AND ANY OF THESE MAY CHANGE AT ANY TIME WITHOUT NOTICE.
- Indemnification by Club Feast. Subject to this Agreement, Club Feast shall at its expense defend Customer and its officers, directors and employees (“Customer Indemnified Parties”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer hereunder infringes the intellectual property rights of a third party (each, a “Customer Claim”), and shall pay any damages finally awarded by a court or agreed to by Club Feast in a settlement with respect to such Customer Claim; provided, that Customer (i) promptly gives written notice of the Customer Claim to Club Feast; (ii) gives Club Feast sole control of the defense and settlement of the Customer Claim (provided that Club Feast may not agree to any settlement that imposes any liability or obligation on Customer); and (iii) provides to Club Feast, at Club Feast's cost, all reasonable assistance. Club Feast shall have no obligation under this Section 9.1 or otherwise regarding claims that arise from or relate to (a) Customer's use of the Service other than as contemplated by this Agreement, (c) any modifications to the Service made by any person other than Club Feast, (d) any combination of the Service with services, equipment or technologies not provided by Club Feast, or (e) Customer's use of the Service or portion thereof after Club Feast has terminated this Agreement or such portion of the Service in accordance with this Section 8.1. If in Club Feast's opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Club Feast liability, Club Feast may in its discretion (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre-paid fees applicable to the portion of the terminated Services to be provided after the termination date.
- Indemnification by Customer. Subject to this Agreement, Customer shall at its expense defend Club Feast and its officers, directors, employees, affiliates and suppliers (“Club Feast Indemnified Parties”) against any claims made or brought against any Club Feast Indemnified Party arising from or related to (i) Customer's use of the Service in a manner not contemplated hereunder, (ii) any breach of applicable laws, rules and regulations by Customer or its Buyers, (iii) any breach of Customer's representations and warranties under Section 3.4 and 6.4, (iv) any activity on Customer's payment account, whether initiated by Customer or not, including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of third-party payment services in a manner prohibited by law or by contract, or (v) any inaccurate or incomplete information provided by Customer as part of the onboarding of Customer's payment account (each, a “Club Feast Claim”) and shall pay any damages finally awarded by a court or agreed to by Customer in a settlement with respect to such Club Feast Claim; provided, that Club Feast (a) promptly gives written notice of the Club Feast Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Club Feast Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Club Feast); and (c) provides to Customer, at Customer's cost, reasonable assistance in connection therewith.
Limitation of Liability.
- Limitation of Liability. IN NO EVENT SHALL CLUB FEAST'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO CLUB FEAST HEREUNDER.
- Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES ARISING FROM A PARTY'S BREACH OF SECTION 7, OR CUSTOMER'S BREACH OF SECTIONS 3.3 OR 6, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION IN AVAILABILITY OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Term & Termination.
- Term of Agreement. Unless otherwise set forth on an Order Form, this Agreement commences on the Effective Date and continues for one year, unless earlier terminated in accordance with Section 11.2 (the “Initial Term”). Thereafter, the term of this Agreement will automatically renew for successive one year periods (each a “Renewal Term”; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”); provided, however, that either party may terminate this Agreement by providing at least 30 days' written notice of its intent not to renew prior to the end of the then-current Term.
- Termination. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed or stayed within 60 days. Club Feast may terminate this Agreement upon 30 days written notice for any reason. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Club Feast prior to the effective date of termination.
- Customer Data. Upon expiration or termination of this Agreement, Club Feast shall have no obligation to maintain or provide any Customer Data and, unless legally prohibited, may delete all Customer Data in its systems or otherwise in its possession or under its control.
- Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 5, 6 (excluding Section 6.2), 7, 8, 9, 10 and 11.3, 11.4, and 12.
- Beta Service. From time to time, Club Feast may invite Customer to try products related to the Service or new features of the Service that are not generally available to all Club Feast customers or Club Feast may release products or feature related to the Service that are identified as “beta,” “preview,” “pilot” or “limited release” or a similar designation (collectively, “Beta Services”). Club Feast provides Beta Services for evaluation or testing purposes only, and therefore, may contain bugs or errors, and may not be as reliable as the other features of the Service. Club Feast may discontinue Beta Services at any time in its sole discretion. For the avoidance of doubt, Beta Services are subject to the terms of this Agreement, provided that Club Feast assumes no liability for Customer's access to or use of any Beta Services.
- Customer Logo. Club Feast may use Customer's name and logo in Club Feast's lists of customers provided that such use will comply with any standard trademark guidelines Customer provides to Club Feast in writing.
- Customer Media. With Customer's prior permission, Club Feast may publish on its website Customer's quotes related to Customer's use of the Service as well as photos and videos of Customer's locations and use of the Service.
- Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
- Force Majeure. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
- Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by email. Notices to Club Feast shall be addressed to the attention of Club Feast Support (by sending an email tosupport@getClub Feast.com; or calling (650) 362-8483); 370 Convention Way, Suite 221; Redwood City, CA 94063. Notices to Customer are to be addressed to the individual identified in the Order Form. Customer authorizes Club Feast to receive notices or forms related to payment processing services from Stripe on Customer's behalf.
- Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Club Feast may assign this Agreement together with all rights and obligations hereunder, without consent of Customer, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law. This Agreement shall be governed by the laws of California. The state and federal courts located in San Mateo County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 12.9 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.
- Entire Agreement. This Agreement, including all exhibits and addenda hereto and the Order Form, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted; provided, that Club Feast shall have the right to modify the terms and conditions of this Agreement from time to time in its reasonable discretion without the approval of Customer or any User as set forth in the beginning of this Agreement. In the event of any conflict between the provisions in the main body of this Agreement and the Order Form the terms of the main body of this Agreement shall prevail to the extent of such conflict, except and to the extent set forth in the main body of this Agreement or the Order Form expressly identifies by Section any specific provision of the main body of this Agreement that the parties intend to override. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void.