The following terms of service, last updated on 1/5/2023, govern the relationship between clients of KitchenSync and the company.
Services. KitchenSync hereby agrees to provide the services listed in the provided quotation, and further defined in Exhibit A, in accordance with industry best practices and shall at all times observe and comply with Generally Accepted Accounting Principles (GAAP) and with all applicable federal and state laws.
Standard of Performance. KitchenSync hereby agrees that it shall follow the highest professional standards in performing all Services to be provided.
Necessary Information & Material. Client will be solely responsible for supplying KitchenSync with all information, materials, data and documents necessary to perform the Service and will use all means within reason to ensure that all employees of the Client adopt and adhere to the necessary processes to facilitate the flow of information between the Client and KitchenSync, including the proper use of the Client's point-of-sale system and other software solutions provided by KitchenSync.
Client acknowledges and agrees that the accuracy of financial information supplied by KitchenSync is the sole responsibility of the Client. KitchenSync shall not be held responsible for the production of inaccurate or incomplete financial statements, records and billings, or any other financial reports if the financial data submitted by the Client is inaccurate, incomplete, or not provided in a timely manner.
Term. This Agreement is effective upon Client's signing of the provided quotation and shall remain in effect until termination by Client or KitchenSync, which must be provided in writing and in accordance with the Termination clause below.
Independent Contractor. KitchenSync shall provide the Services as an independent contractor and shall not act as an employee or agent of the Client. As an independent contractor, KitchenSync will be solely responsible for paying any and all taxes levied by applicable laws on its compensation. KitchenSync understands that Client will not withhold any amounts for payment of taxes from KitchenSync's compensation.
Payment. During the term of this Agreement, Client shall pay KitchenSync for its services in accordance with the signed quotation provided. Client understands that quoted pricing represents the base pricing for selected service packages, adjusted for any applicable Discounts, and that these service packages may, from time to time, become unavailable to Client as a result of increases in Client's monthly invoice volumes, revenue, employee counts, use of third-party delivery providers, or inter-company activities. Should a quoted package become unavailable to Client, Client will be provided with no less than 30 days notice indicating any pending changes in pricing or Services to be provided.
All charges will be automatically withdrawn from Client's bank account via direct debit within three (3) days of the beginning of each service period, or later at KitchenSync's sole discretion.
If no payment is received by KitchenSync within seven (7) days of the signing of this proposal, KitchenSync, in its sole discretion, may terminate the Agreement immediately. Payments received more than seven (7) days after their respective due dates may accrue interest at 1.5% per month.
Billing for each individual service will begin in the month in which that service is first rendered.
Annual Increases. KitchenSync reserves the right to increase all base fees outlined in the quotation annually by the aggregate change in the Consumer Price Index (CPI). At the conclusion of each twelve (12) month service period, beginning from the date upon which the provided quotation is signed, KitchenSync will review pricing and determine, in its sole discretion, whether or not to apply the fee increase. Any delay by KitchenSync in increasing prices according to the CPI does not preclude KitchenSync from exercising this right in the future. In the event of a delayed increase, KitchenSync may calculate the change in CPI from the date of the signing of the applicable quotation to the effective date of the increase. Notwithstanding the foregoing, no price increase will go into effect until written notice is provided to the Client in writing by KitchenSync with a minimum of 30 days notice.
Discounts. The Client agrees that any discounts applied to the quotation, other than advertised multi-unit discounts, are provided in KitchenSync's sole discretion and may expire at any point after twelve (12) months have elapsed since the signing of the quotation. The client further agrees that multi-unit discounts will be removed in the event that Client is no longer subscribed to the quoted services for multiple business locations.
Pre-Opening Discount. In the event that the Client's business location listed in the Services section of this Agreement has not yet been made open to the public upon the signing of this Agreement, the Company shall reduce the Monthly Service Charges due under this Agreement by $500 per month per location until the calendar month in which the Client's business location is first made open to the public ("Billing Start Date").
Expenses. The Client agrees to reimburse any out of pocket expenses incurred by KitchenSync in connection with the services, including, but not limited to, check fees, pre-approved travel expenses, audit fees, tax fees, payroll service fees, and third-party software fees not previously defined in this Agreement.
Any services performed by KitchenSync at the request of the Client that do not meet the definition of services for the purposes of this Agreement shall be billed as hourly service charges at a rate of $75 per hour.
Termination. Either party may terminate this Agreement for any reason by providing ninety (90) days written notice ("Termination Notice") to the other party. In the event that Client provides Termination Notice for any business location within one year of first subscribing to Services for that business location, any discounts to the Monthly Service Fees, including the Pre-Opening Discount, and any other balances owed under this Agreement will immediately become due and will be promptly withdrawn from the Client's bank account on file.
Assignment. KitchenSync reserves the right to assign any of its rights, obligations or duties under this Agreement to a third party (subcontract) without prior consent of the Client so long as such assignment, transfer or subcontracting has no effect on the level of service provided or any obligations on the part of Client, including cost or payment procedure.
Confidentiality. KitchenSync in the course of performing the services hereunder may gain access to certain confidential or proprietary information of the Client. KitchenSync agrees to hold all such Confidential Information of the Client in strict confidence and shall not, without the express prior written permission of Client, (a) disclose such Confidential Information to third parties, (b) disclose such Confidential Information to non-executive employees of the Client (c) store such Confidential Information in third-party or internally-developed software platforms that are not ISO27001, or similarly, certified; or (d) use such Confidential Information for any purposes whatsoever, other than in the performance of its obligations hereunder; however such "Confidential Information" shall NOT include vendor lists, pricing, or redacted financial and statistical data that may be used by KitchenSync for a variety of purposes including, but not limited to, sourcing group purchasing contracts from potential Client vendors or compiling general benchmarking analysis for use by KitchenSync and its clients. The obligations under this Section shall survive termination or expiration of this agreement.
Data Retention & Storage. During the term of this Agreement, KitchenSync shall retain electronic copies of all financial information generated in the course of performing the Services. Upon termination of this Agreement, KitchenSync will provide Client with online access to all such information, at which point storage and retention of the information will become the sole responsibility of the Client.
Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during receiving party's regular business hours or by electronic mail before or during receiving party's regular business hours; or (b) on the second business day following deposit in the United States mail or release to reputable courier service to the addresses designated from time to time.
Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California and the competent courts of jurisdiction therein.
Dispute Resolution. All disputes under this Agreement that cannot be resolved between the parties in good faith shall be settled by arbitration in the State of California before a single arbitrator pursuant to the commercial law rules of the American Arbitration Association. Arbitration may be commenced at any time by any party hereto given written notice to the other party to a dispute that such dispute has been referred to arbitration, so long as the referring party has used all means at its disposal to remedy the dispute in good faith with the counterparty. The prevailing party in the arbitration shall be entitled to reimbursement of its reasonable attorneys' fees. Any award, including reasonable attorneys' fees, rendered by the arbitrator shall be conclusive and binding upon the parties hereto. This provision for arbitration shall be specifically enforceable by the parties and the decision of the arbitrator in accordance herewith shall be final and binding without the right of appeal.
Severability. If any provision of the Agreement shall be held to be illegal, invalid or unenforceable under the present or future laws, such provisions shall be fully severable, this Agreement shall be construed and enforced as if such illegal invalid or unenforceable provision had never comprised a part of this Agreement; and, the remaining provisions of this Agreement shall remain in full force and effect.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, DAMAGES FOR LOSS OF PROFITS, INCURRED BY THE OTHER PARTY ARISING OUT OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S LIABILITY ON ANY CLAIM, LOSS OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNTS PAID TO KITCHENSYNC DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR ACTION BY CLIENT.
Indemnification. Each party shall at its own expense indemnify and hold harmless, and at the other party's request defend such party its affiliates, subsidiaries, successors and assigns, officers, directors, employees, sublicensees, and agents from and against any and all claims, losses, liabilities, damages, demand, settlements, loss, expenses and costs (including attorneys' fees and court costs) which arise directly or indirectly out of or relate to (a) any breach of this Agreement, or (b) the gross negligence or willful misconduct of a party's employees or agents.
Publicity. The Client grants permission to KitchenSync to publicize the existence of a business relationship between the parties. Use of the Client's trade name, logo, and images posted to the Client's website or social media accounts is hereby authorized for the sole purpose of marketing KitchenSync to potential customers.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this Agreement shall be effective unless in writing and signed by each of the parties.
Exhibit A: SERVICE DEFINITIONS
"Budgeting" includes annual preparation of a store-level budget, prepared in coordination with restaurant ownership, management, and the KitchenSync Advisory team. Budgets are displayed in an identical form to monthly financial statements to ensure comparability between budgeted and actual performance.
"Benefits Administration" includes the management of enrollments and off-boarding to and from company-sponsored benefit plans, which may include health, dental, vision, retirement, or other benefits.
"Cash Flow Management" includes weekly maintenance of KitchenSync's standard cash flow tracking sheet and the weekly scheduling of payments to vendors and independent contractors.
"CalSavers" refers to the setup and ongoing management of California's state-sponsored retirement benefits plan, which is required to be maintained by all California employers with 5 or more employees that do not otherwise offer a 401K or similar private retirement plan.
"Compliance" refers to the manual checking of employee onboarding documentation to ensure compliance with local, state, and federal employment regulations, as well as periodic assessments of payroll operations to ensure the same.
"Daily Operations Reporting" includes a drill-able, web-based dashboard that displays sales and labor by day with comparisons to last year, last week, and budget.
"Dedicated Accounting Manager" is an experienced, mid-level finance executive that is assigned to oversee the finance-related operations of small group of restaurants. The vast majority of KitchenSync employees in this role were former senior accountants or controllers at multi-unit restaurant groups.
"Conflict Resolution" includes the proactive assessment and resolution of conflicts between employees, employees and managers, employees and owners, and managers and owners. This service is provided confidentially in coordination with KitchenSync's senior Human Resources leaders.
"Financial Coaching" includes a monthly (or periodic) one-hour video conference held between a restaurant's Dedicated Accounting Manager and any on-site management team members to discuss the results indicated by the profit & loss statement, how that statement is compiled, and how current performance stacks up to relevant industry benchmarks. The objective is to promote financial literacy and engagement amongst on- site management in the financial management of the business.
"Onboarding" includes access to KitchenSync Teams, a proprietary web-based application that allows users to rapidly onboard employees to payroll in a fully digital environment.
"Forecasting" refers to the monthly maintenance of KitchenSync's online forecasting calendar.
"Insurance Management" refers to the proactive assessment of a restaurant's current insurance coverages and the sourcing and renewal of policies, as agreed to, between restaurant ownership and CoverageSync, KitchenSync's partnered insurance brokerage.
"Hiring Fairs" refers to the remote coordination and execution of mass hiring events, typically held on-site at a restaurant location, during which dozens of invited candidates are encouraged to meet with hiring managers during a specified window of time.
"Job Marketing" includes the creation and posting of job opportunity marketing materials on various KitchenSync digital media properties.
"Operational Oversight" refers to up to four hours per month of direct engagement between a restaurant's Dedicated Advisor and store level management in the pursuit of monthly and quarterly goals.
"Proactive Candidate Sourcing" refers to the use of LinkedIn, CulinaryAgents, and the proprietary KitchenSync network to proactively introduce open job opportunities to potential candidates that are likely to succeed in a given role.
"Sales Tracking" refers to daily polling of transaction-level POS data. This data is pulled into the KitchenSync portal and displayed on various reports that break down sales by menu category, revenue center, GL account, day part, and product.
"Performance Management" includes a monthly (or periodic) one-hour video conference held between a restaurant's Dedicated Advisor and ownership to discuss specific department-level performance, financial statement highlights, overall business health, and strategies for accelerating the attainment of stated company objectives.
"Vendor Relations" includes the initial setup of vendor accounts, including the negotiation of payment terms, as well as a quarterly audit of vendor pricing against similarly qualified purchases.
"Shareholder Relations" refers to a quarterly shareholder presentation, delivered via email, including a one-page executive summary highlighting current initiatives of the management team as well as a highlight of recent financial performance.
"Payroll Administration" includes dedicated support in all areas of payroll, including processing system setup, calculation of weekly or bi-weekly payroll, bonus calculations, garnishment management, PTO accrual management, approval sourcing, and other customary payroll-related
"Annual Tax Support" includes preparation and filing of up to thirty (30) Form 1099s, which are required for every independent contractor paid $600 or more over the course of a calendar year, preparation and filings of Form 8027, and the annual filing and payment of Business Property Tax in applicable jurisdictions.
"Sales Tax Management" includes the monthly online filing and payment of collected sales taxes, as calculated by Client's point-of-sale system.