BILLING AGREEMENT FOR FOOD AND BEVERAGE PLANS

Last Updated April 30, 2024

This Billing Agreement for Food and Beverage Plans, together with its Exhibits and Terms, (this “Agreement”) is entered into as of the later date of signature below (the “Effective Date”) by and between Modisoft, Inc. (“Licensor,” or “Modisoft”) and the party identified as “Licensee” in the signature block below (“Licensee”). Licensor and Licensee are the “Parties” and each a “Party.”

Subject to the mutual covenants and agreements set forth herein, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

Background.

Licensor provides point of sale hardware and software systems, backoffice software systems, loyalty programs, and software systems which make retail and restaurant business operations more efficient (each a “Platform”) for its users (the “Customers”) and their customers.

As a Customer of one or more of the Platforms, Licensee is party to Modisoft terms and conditions governing the use of such platforms, such as the associated Terms of Service, Terms of Use, Service Agreement, Program Agreement, Privacy Policy and the like (“Terms”).

1. Payments, Availability, and Processing.

1.1. Fees. Licensee agrees to pay the fees as specified in Exhibit A and in accordance with this Agreement. Fees are subject to change (upon 90 days notice) due to changing costs and other related factors. Fees are assessed per location and charged automatically.

1.2. Timing. All amounts are due and payable on the first day of each subscription period, and may be charged to Licensee’s payment method any time thereafter. Payment method pre-authorizations to determine sufficient funds may be sought by Licensor at any time.

1.3. Late Payments. Every failed or returned payment is subject to an additional fee of $30. Late payments shall incur interest charges at the maximum legal rate until paid.

1.4. Availability. Restaurants located within a retail business not eligible for Food and Beverage plans. New accounts and hardware subject to approval and availability.

1.5. Processing. Merchant services for all Food and Beverage plans must be provided through Paycue, and separate service terms and conditions apply.

2. Representation and Warranties.

2.1. Authority. The Parties each represent and warrant that the signatory below is authorized to bind the Party for whom it is signing, and the Party has the authority to enter this Agreement.

2.2. Licensee represents and warrants that any payment information provided to Licensor or its vendor Paycue is true and correct, and that sufficient funds are and will remain available, and that Licensee will provide information for alternative payment methods in the event sufficient funds are not available.

2.3. Hardware is provided with a 1-year replacement warranty against defects and is eligible for return or exchange within 15 days.

3. General.

3.1. Assignment. This Agreement, nor any portion thereof, shall not be assigned or sublicensed by or on behalf of Licensee voluntarily, involuntarily, by operation of law, or otherwise.

3.2. Dispute Resolution. This Agreement shall be governed in all respects by the laws of the United States and by the laws of the State of Texas. The courts of Houston, Texas, shall be the exclusive forum for any litigation or dispute resolution, including mediation or arbitration.

Any controversy between the Parties to this Agreement involving the construction or application of any of the terms, provisions, or conditions of this Agreement, shall on written request of either party served on the other, be submitted first to mediation and then if still unresolved to binding arbitration. Said mediation or binding arbitration shall comply with the provisions of the American Arbitration Association for Commercial Disputes unless the Parties stipulate otherwise. The attorney’s fees and costs of arbitration shall be borne by the losing party, or in such proportions, as the arbitrator shall decide.

Licensee acknowledges and agrees that a breach or threatened breach of its obligations with respect to its confidentiality obligations or engaging in Prohibited Uses would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy. In the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy, and shall entitle Licensor to pursue injunctive relief and all economic damages in the state courts of Harris County, TX. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

To the maximum extent permitted by applicable law, the Parties agree to only bring disputes in an individual capacity and shall not: (i) seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or (ii) consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to this Agreement and all other actions or arbitrations.

3.3. Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing indicating the specific intent to amend this Agreement and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date.

EXHIBIT A

FEES – FOOD AND BEVERAGE GROWTH PLAN

Table A1 – Food and Beverage Subscription Details – Growth Plan