Page 1 PageID: AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of New
__________
District
ofJersey
__________
ZENA L. POWELL
Plaintiff(s)
v.
CLOUD KITCHENS INC DBA 500 CORTLANDT ST
BELL LLC & OTTER
Defendant(s)
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Civil Action No. 2:21-CV-20456-CCC-ESK
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) CLOUD KITCHENS INC.
777 S FIGUEROA ST.
SUITE LOS ANGELES, CA, ATTN: LEGAL DEPARTMENT
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: ZENA L. POWELL
20 HOWARD DRIVE
APT. V
BERGENFIELD, NEW JERSEY,
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
12/10/Signature of Clerk or Deputy ClerkPage 2 PageID: AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 2:21-CV-20456-CCC-ESK
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
ZENA L. POWELL
.
’ I personally served the summons on the individual at (place)
on (date)
; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)
on (date)
; or
’ I returned the summons unexecuted because
; or
’ Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
0.
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
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.Page 3 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
UNITED STATES DISTRICT COURT
for the
DistrictDistrict
of NewofJersey
__________
__________
________CIVIL__
Division
__________ Division
ZENA L. POWELL
Plaintiff(s)
(Write the full name of each plaintiff who is filing this complaint.
If the names of all the plaintiffs cannot fit in the space above,
please write “see attached” in the space and attach an additional
page with the full list of names.)
-vCLOUD KITCHENS INC.DBA 500 CORTLAND ST
BEL LLC. & OTTER
Defendant(s)
(Write the full name of each defendant who is being sued. If the
names of all the defendants cannot fit in the space above, please
write “see attached” in the space and attach an additional page
with the full list of names.)
)
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Case No.
2:21-CV-20456-CCC-ESK
(to be filled in by the Clerk’s Office)
COMPLAINT AND REQUEST FOR INJUNCTION
I.
The Parties to This Complaint
A.
The Plaintiff(s)
Provide the information below for each plaintiff named in the complaint. Attach additional pages if
needed.
B.
Name
ZENA L POWELL
Street Address
20 HOWARD DRIVE APT. V
City and County
BERGENFIELD & BERGEN
State and Zip Code
NEW JERSEY
Telephone Number
551-275-
E-mail Address
TEOTEOJOHNSON@OUTLOOK.COM
The Defendant(s)
Provide the information below for each defendant named in the complaint, whether the defendant is an
individual, a government agency, an organization, or a corporation. For an individual defendant,
include the person's job or title (if known). Attach additional pages if needed.
Page 1 of 6Page 4 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
Defendant No. Name
CLOUD KITCHENS
Job or Title (if known)
COMPANY
Street Address
777 S. FIGUEROA ST. SUITE
City and County
LOS ANGELES, LOS ANGELES
State and Zip Code
CALIFORNIA
Telephone Number
301-756-
E-mail Address (if known)
SALES@CLOUDKITCHENS.COM
Defendant No. Name
OTTER COMPUTER INC
Job or Title (if known)
COMPANY
Street Address
3350 SCOTT BLVD BLDG
City and County
SANTA CLARA
State and Zip Code
CALIFORNIA 954054-
Telephone Number
408-735-
E-mail Address (if known)
WWW.OTTERUSA.COM
Defendant No. Name
Job or Title (if known)
Street Address
City and County
State and Zip Code
Telephone Number
E-mail Address (if known)
Defendant No. Name
Job or Title (if known)
Street Address
City and County
State and Zip Code
Telephone Number
E-mail Address (if known)
Page 2 of 6Page 5 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
II.
Basis for Jurisdiction
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be
heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the
parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties
is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of
another State or nation and the amount at stake is more than $75,000 is a diversity of citizenship case. In a
diversity of citizenship case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal court jurisdiction? (check all that apply)
✔ Federal question
’
’ Diversity of citizenship
Fill out the paragraphs in this section that apply to this case.
A.
If the Basis for Jurisdiction Is a Federal Question
List the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that
are at issue in this case.
FTC ACT SECTION 5(A) UNFAIR OR DECEPTIVE TRADE PRACTICES, NJSA 56:8-2, AND THE
FEDERAL LANHAM ACT TITLE 15 U.S.C 1125(A)
B.
If the Basis for Jurisdiction Is Diversity of Citizenship
1.
The Plaintiff(s)
a.
If the plaintiff is an individual
, is a citizen of the
The plaintiff, (name) ZENA L POWELL
State of (name) NEW JERSEY
b.
.
If the plaintiff is a corporation
The plaintiff, (name)
, is incorporated
under the laws of the State of (name)
,
and has its principal place of business in the State of (name)
.
(If more than one plaintiff is named in the complaint, attach an additional page providing the
same information for each additional plaintiff.)
2.
The Defendant(s)
a.
If the defendant is an individual
, is a citizen of
The defendant, (name)
the State of (name)
(foreign nation)
. Or is a citizen of
.
Page 3 of 6Page 6 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
b.
If the defendant is a corporation
The defendant, (name) CLOUD KITCHENS INC.
the laws of the State of (name) CALIFORNIA
, is incorporated under
, and has its
principal place of business in the State of (name) CALIFORNIA
Or is incorporated under the laws of (foreign nation)
,
and has its principal place of business in (name)
.
.
(If more than one defendant is named in the complaint, attach an additional page providing the
same information for each additional defendant.)
3.
The Amount in Controversy
The amount in controversy–the amount the plaintiff claims the defendant owes or the amount at
stake–is more than $75,000, not counting interest and costs of court, because (explain):
I am requesting compensatory, consequential, and nominal damages
III.
Statement of Claim
Write a short and plain statement of the claim. Do not make legal arguments. State as briefly as possible the
facts showing that each plaintiff is entitled to the injunction or other relief sought. State how each defendant
was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff's rights,
including the dates and places of that involvement or conduct. If more than one claim is asserted, number each
claim and write a short and plain statement of each claim in a separate paragraph. Attach additional pages if
needed.
A.
Where did the events giving rise to your claim(s) occur?
IN THE STATE OF NEW JERSEY
B.
What date and approximate time did the events giving rise to your claim(s) occur?
7/27/
Page 4 of Page 7 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
C.
What are the facts underlying your claim(s)? (For example: What happened to you? Who did what?
Was anyone else involved? Who else saw what happened?)
The business relationship was formed on deceptive business practices and false statements of services
to be provided and fees being all inclusive by Georgia Morhbacher on behalf of Cloud Kitchens. In my
brief the details of the aforementioned communications resulting in the approved transaction by my son
Teo Powell who funded the business initially from his brokerage account. In addition the company
operates in unsafe practices as there are no twenty four hour facilities managers that are qualified HVAC
Osha certified facilities manager to shut off gas line in the event of an emergency gas leak or water
issues. The promise of nightly general kitchen cleaning (all equipment and floors), weekly hood cleaning
and quarterly deep cleaning, marketing, application assistance, and signage were lies. Also charged
operational fees prior to any equipment being delivered or me taking complete possession of the space.
Charging licensing fees of $3600 monthly in addition to $2000 operational fees and a storage fee of per rack but cannot explain what it is that they are licensing since you cannot license commercial space.
IV.
Irreparable Injury
Explain why monetary damages at a later time would not adequately compensate you for the injuries you
sustained, are sustaining, or will sustain as a result of the events described above, or why such compensation
could not be measured.
The business model they have imposed with the assistance of their partnership with Tryotter.com is one that
gurantees high turn-over of merchants within the building. Not even the franchises that have contracted with them
are satisfied and have left their facilities such as TGIFridays left during the month of November acknowledging
that their fees for licensing were bogus and the additional fees hidden incurred were not what was promised
during the sales pitch. The merchant such as myself can never become profitable because Otter system is used
to control sales flow and since Cloud does not advertise or market on your business as stated in the sales
presentation you wont pickup the foot traffic needed to sustain the monthly cost in which they rely on and they
intentionally donot respond during the onboarding process immediately to take up the time you would have to
withdraw from the contract upon discovering the issues mentioned because that would result in a refund of the
initial deposit. The organization targets a specific group of consumers as well that are less educated in business
but have dream of becoming a food business owner. Merchants are bankrupt or return to prior fields and I
personally expressed my need for the services to be as stated due to disability and needing those services.
V.
Relief
State briefly and precisely what damages or other relief the plaintiff asks the court to order. Do not make legal
arguments. Include any basis for claiming that the wrongs alleged are continuing at the present time. Include
the amounts of any actual damages claimed for the acts alleged and the basis for these amounts. Include any
punitive or exemplary damages claimed, the amounts, and the reasons you claim you are entitled to actual or
punitive money damages.
I am seeking damages of $200,000 which would include the money given to cloud thus far of $12,259.22 the
equipment fees I paid of $4,704.00 and the cost of Food $3,314.00and the additional damages requested in
compensatory, and nominal damages. I am also requesting an investigation into Cloud as they are the same
executives who left Weworx prior to charges being brought against the company they left and formed this one but
also own City Storage systems, LLC an a host of other subsidiaries across the country. The company needs to
have the merchants they lease to speak with investigators to share their experience and the pattern of deceptive
sales tactics will become very transparent as we all had different sales persons. To temporarily bar the licensing
fees until it is determined what it is that the company is licensing you for and to review how many cleints have
been illegally evicted without court paperwork. How many sales were effected by the Otter system being turned
off on them during business for lack of payment of an invoice within the same month? And, How many have been
affected by Otter being down offline or their sales flow experieince with otter directing the sales traffic.
Page 5 of 6Page 8 PageID: Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
VI.
Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my knowledge, information,
and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the
requirements of Rule 11.
A.
For Parties Without an Attorney
I agree to provide the Clerk’s Office with any changes to my address where case–related papers may be
served. I understand that my failure to keep a current address on file with the Clerk’s Office may result
in the dismissal of my case.
Date of signing:
12/10/
Signature of Plaintiff
Printed Name of Plaintiff
B.
Zena l. Powell
For Attorneys
Date of signing:
Signature of Attorney
Printed Name of Attorney
Bar Number
Name of Law Firm
Street Address
State and Zip Code
Telephone Number
E-mail Address
Page 6 of
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UNITED STATES DISTRICT COURT
For the
District of New Jersey
ZENA L. POWELL AKA
THE SOUL KITCHEN
Plaintiff(s),
-vESK
CLOUD KITCHENS INC DBA CORTLANDT ST BEL LLC & OTTER
COMPUTER INC.
Defendant(s),
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Civil Action No. 2:21-CV-20456-CCC)
IN SUPPORT OF COMPLAINT
REQUEST FOR AN INJUNCTION
JURY TRIAL DEMANDPage 10 PageID:
TABLE OF CONTENTS
Introduction....................... .. ... .. .................... . ......................
Statement of facts........................ . ......................... . ... ............
Georgia Mohrbacher and Zena L. Powell …………... ... ..... ...
Onboarding Team……………………………………………..
Kira Sedgewick and Zena L. Powell………………….... .. ....
Kip Beach and Zena Powell…………………………………
Violations Alleged for Relief............................................
The Soul Kitchen should be Granted Relief
Determining that Georgia Mohrbacher, Kira Sedgewick,
Laura Collections & Billing Specialist, and Kip Beach Regional director
acting in their official capacity for Cloud Kitchens DBA
500 Cortlandt St Bell LLC and Otter Computer Inc. as co-conspirators
with Cloud Kitchens Is in violation of the FTC Act Section 5(a)
Unfair or Deceptive trade Practices, Title 18 U.S.C. §Frauds and Swindles, Title 18 U.S.C. §1038 (b)
False information and Hoaxes, Title 15 U.S.C. §45 (b) Consumer review
Protection, and The Lanham Act under section 43(a)
False or misleading advertising. The State of New Jersey
Real estate License act N.J.S.A. 45:15-16.Submission of applicant to the courts; methods of service,
45:15-16.46 Violations by brokers, salespeople; fines, penalties
And The State of New Jersey Consumer Fraud Act
56:8-1 and 56:8-2 An act concerning consumer fraud its
prevention and penalties thereof.
1. Federal Violations Alleged for Relief
Federal Trade Commission Act Section 5(a)…………………………
Unfair and Deceptive Business Practices…………………………….
.................................................
18 U.S.C. §1038 (b) False information and Hoaxes…………………
15 U.S.C. §45 (b) Consumer review Protection……………………...
The Lanham Act under section 43(a)
False or misleading advertising……………………………………….
2. Second New Jersey State Codes Violation Alleged for Relief
The State of New Jersey Real estate License act:
N.J.S.A. 45:15-16.Submission of applicant to the courts; methods of service……………Page 11 PageID:
45:15-16.46 Violations by brokers, salespeople; fines, penalties……..
The State of New Jersey Consumer Fraud Act
N.J.S.A. 56:8-1 and 56:8-2 An act concerning consumer fraud its
prevention and penalties thereof
JERSEY EVICTION LAW
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal;
issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Conclusion and Prayer for Relief ..... . ...... ................................................
EXHIBITS
A. Email Correspondence with Georgia Mohrbacher and onboarding team
B. Email Correspondence and text messages with Kira Sedgewick
and onboarding team
C. Licensing Agreement Signed, KSA Order Form, KSA Terms & Conditions,
Cloud Kitchens Proposal materials, Letter of Termination and request to vacate
space
of Agreement by December 17, D. Exhibit example of approved licensing agreement by
Securities Exchange Commission
E. Sales Reports from Door Dash merchant portal.
F. FTC consumer fraud complaint
G. Attorney General Complaint for Consumer Fraud
H. Invoices for Cloud Kitchens from July through October.Page 12 PageID:
INTRODUCTION
The Plaintiff, Zena L. Powell, also referred to herein as “The Soul Kitchen” or
“Plaintiff “ was presented with a sales presentation on Juy 20th, 2021 by Georgia
Mohrbacher A salesperson from Cloud Kitchens herein referred to as “Defendant 1” and
accompanied by two other cloud employees Shyanne Gaston and Sawyer Daly of
Cloud onboarding team via a Zoom meeting that took place at 1:30 pm. The Plaintiff
was then received a contract to sign from Georgia Mohrbacher on July 23rd, 2021 and
had reservations about the services not being listed that were stated verbally during the
sales presentation and submitted questions in regard to those services stated verbally.
(SEE EXHIBIT A) Georgia Mohrbacher a representative of Cloud Kitchens replied
stating that the language is standard because the company services a large number of
clients the contract is standard and provided a material handout stating that the services
discussed in the sales presentation and on the handout are guaranteed and the nightly
general cleaning and weekly hood cleaning of our kitchen workspace is included. The
Defendant(s) assured the Plaintiff verbally during the first meeting and thereafter
verbally that those services will be provided and included as a portion of the fees
incurred monthly for utilization of the space and there are no additional fees incurred
outside of the monthly fees stated. The Plaintiff, Zena L. Powell, then entered into a
Licensing Agreement with Cloud Kitchens Inc. on July 27th, 2021to obtain a commercial
kitchen space in a shared workspace environment for merchants seeking to launch a
Ghost Kitchen restaurant. Cloud Kitchens Inc. is a company that provides two hundred
square foot commercial kitchen space pre-fitted with the required washing sinks, as well
as Hood ventilation system for use by the licensee. Otter is a computer software firm
that works directly as a Third-Party vendor for Cloud Kitchens Delivery hub system for
the restaurant industry across all delivery and pickup platforms. i.e(Door Dash,
Grubhub, Ubereats, etc,.) The company controls the sales flow for each restaurant by
integrating each platform under their proprietary software and provide tablets and a
printer for all platforms to be delivered on one Otter tablet versus multiple tablets for
each delivery platform. The Business relationship between Cloud Kitchens and Otter
computer company under Cloud Kitchens current business model is designed to deliver
high turnover of merchants through lack of sales and increase profitability of Cloud
Kitchens Inc. through such turnover resulting in Cloud becoming a Billion DollarPage 13 PageID:
company within a five-year span from 2016 – 2021. The services stated verbally to each
merchant during the sales presentation and advertised on their national commercial are
not delivered as understood by the consumer and therefore cause undue hardship to
consumers seeking economic opportunity in ownership but lacking in depth business
knowledge in launching a food brand, menu, marketing, and administrative applications
required to launch a restaurant. Otter assists in the current business model by driving
the sales flow and taking merchants on and off of delivery platforms without their
knowledge. The current turnover rate is what makes the business model thrive not the
actual success of merchants expanding to other locations but rotating merchants in and
out of current spaces through out the year retaining any money owed from the $7200.deposit required to obtain the kitchen and charging operational fees the first hidden fee
prior to the merchant taking possession of the space but using the access date of the
contract as the basis for this action not the actual date of possession and adjusting the
access date to the date of actual possession. The next hidden fee is the fee charged for
storage space which is stated clearly to be included in monthly cost which is outlined in
Cloud Kitchens Proposal SEE EXHIBIT (C).
The Plaintiff, Zena L. Powell, has sustained physical and financial injury due to
the actions of Cloud Kitchens Inc. and Otter computer company Inc. herein referred to
as “Defendant(s)” by utilizing deceptive business practices, providing misleading
information, and omission of information directly caused physical injury to a disabled
person, the Plaintiff by not providing the general nightly cleaning services in a restaurant
environment and financial injury by omitting the additional fees charged monthly. The
Plaintiff has paid a total of $12, 259.22 to the Defendant(s) since September 10th, through to present and is currently in arrears for $4,620.23 for November and $4,500.for December. The Plaintiff has not paid the invoices due to lack of revenue and being
sick from having to assume duties that were stated would be included in the agreement.
In this Affidavit in support of the complaint Plaintiff, Zena L. Powell, seeks relief
determining that the Defendant(s), Cloud Kitchens Inc. and Otter Computer Company
Inc. are liable under Federal and State consumer laws of protection. If the relief sought
is granted the only issue for trial would be the Plaintiff’s request for an official federal
inquiry, size of the damages awarded, and any other relief the Judge deems necessary.
STATEMENT OF FACTS
GEORGIA MOHRBACHER
On July 19th, 2021 the Plaintiff, Zena L. Powell scheduled a sales presentation in a
Zoom meeting with Georgia Mohrbacher of Cloud Kitchens Inc. for 7-20-2021 at 1:pm. On the Zoom meeting call we went over what the organization is offering and how it
is offered and the Plaintiff inquired about the details of the fees incurred monthly asking
what they include and stated its more then a brick and mortar space monthly for lease
so it would not be worth it to venture in with this type of operation and the Defendant(s)
stated that there is a monthly promotion they are running that would still include all the
services presented of general nightly cleaning, weekly hood cleaning and quarterly
deep cleaning, secured premises, storage, and all the requirements to operate a foodPage 14 PageID:
establishment as stated in the materials and verbally. That there is a cleaning service
provided for the cleaning of your kitchens and common areas, and that with all the
services including limited marketing locally and the availability of signage in front of the
store to increase brand visibility. The Defendants sales representative stated that with
the monthly promotion I could take advantage of the offer for the next 4 months based
at $3600.00 monthly and then the normal payments of $5500.00 monthly would be
required to maintain the contract. The Plaintiff then stated to Defendant(s) Georgia
Mohrbacher that The Plaintiff is disabled and the at the money was coming from the
Plaintiff’s Sons brokerage account and if the services stated were in any way not what
was presented there would be a litigation because the Plaintiff would then be placed in
a compromising position physically and financially and would not be able to make the
business successful. The Defendant(s) assured the Plaintiff both overt the phone and
through email that all the services stated were inclusive of the monthly recurring fees
and that if the Plaintiff has any issues or question’s please feel free to reach out and
Georgia Mohrbacher would be happy to answer them at any point after signing the
agreement. The Defendant state during the presentation there were only 2 kitchens left
thus the reason for her diligent follow-up to complete the contract and the Plaintiff
thanked her for ensuring she received one of the last kitchens available. The
Defendant(s) stated that the onboarding team will be reaching out for the next steps in
moving forward with the process and initially stated that if there were any issues with
the launch date it can be adjusted down the line which is the official access date on the
contract. SEE EXHIBIT (C) The Plaintiff, Zena L. Powell completed payment of the
security deposit on July 29th, 2021 but the actual first hidden fee was the $216.surcharge for payment through the online Otter system that is provided to make your
payments and manage your account on including your restaurant accounts.
ONBOARDING TEAM
The next steps the Plaintiff received an email welcoming the Zena L. Powell to Cloud
Kitchens and introducing the onboarding team of Jordan Palacios for Kitchen planning,
and Shyanne Gaston for setting up the Delivery platforms and integration with the
Defendant(s) Kitchen Technology Cloud utilizes which is Otter computer software. In
addition to a reminder of the key date of Access to the Kitchen which should have been
September 1st, 2021and an introduction to the facilities Manager Kira Sedgewick via
email. On August 31st, 2021 Zena L. Powell, The Plaintiff emailed Kira and copied
Georgia Mohrbacher requesting the launch date be pushed back as stated prior to the
initial signing and after the signing of the agreement and the response was that the
launch date could not be pushed back and stated that if there was an issue of payment
they will push the billing back to two weeks to September 15th, 2021 but there is nothing
that can be done to change the launch date after escalating the matter. An invoice was
received for operating fees on September 5th, 2021 and no keys or possession of thePage 15 PageID:
had taken place. The second hidden fee was the operating expenses not expressed
during the sales presentation when asked were there any additional cost outside of the
deposit and what would be paid in October as the first month of billing and Georgia
Mohrbacher replied no to the question posed by the Plaintiff. The Plaintiff, after
expressing dissatisfaction with the omission of the billing; sent an email replying to the
Defendant(s) expressing the fees not being communicated prior to signing the
agreement even when asked specifically by the Plaintiff in the initial sales call. `The
invoice for operational expenses was paid and on September 10th, 2021 in the amount
of $1098.67. The Plaintiff then made arrangements with Kira Sedgewick to pick up the
keys for the kitchen on September 15th, 2021 and upon arrival met with Hadiya the
facilities supervisor. Hadiyah was asked to show The Plaintiff around the facility and
then informed Plaintiff of the facility rules, and the location of storage dry and cold.
Hadiyah then informed The Plaintiff of the facility fees for storage monthly which was
the third hidden fee of $250.00 per rack which is stated to be included in the monthly
cost SEE EXHIBIT (C) (Cloud Kitchen Proposal Materials)
During this time frame the onboarding members and the sales person were promoted
and the menu planning and menu submitted originally changed to Momoh Pujeh as of
August 6th, from Shyanne Gaston and Momoh Pujeh was the new point of contact in
which the menu and brand was submitted for upload both on the Google link they
provided originally for the menu upload and directly via email delivered to Momoh Pujeh
by August 13th, 2021 a total of 6 submission 3 via email and 3 through the online google
upload link they provided originally. The menu was uploaded and launched the Brand
on September 15, 2021 in spite of the emails and everyone being copied on the email
trail and requesting the launch date be changed via email. The false launch prompted
calls for orders coming through and initially ruined the Brand launch sales numbers. The
Soul Kitchen brand was not officially opened until after the Health Department Approved
the application for a local food business. The approval did not take place until October
after the last application submission on September 27th, 2021 to the City of Belleville.
The menu was also finalized on the 27th of September with Shyanne Gaston and the
Delivery date of the Kitchen Equipment had already taken place and was confirmed
prior with Kira Sedgewick for September 16th, 2021. There were many corrections I
made during this time to the menu myself and had to fix on all platforms due to the
incompetent communication and lack of attention to detail by the onboarding specialist
which had changed hands multiple times from Shyanne Gaston to Momoh Pujeh to
Alyssa Parbhoo none of whom actually picked up the phone to call me and be proactive
in an industry where it is required as all deadlines are time sensitive to launch dates. It
was impossible to get a direct number for any administrators that were assigned to
assist you in your launch for timely responses regarding your brand launch and upon
responding would not have the correct details as submitted for launching the brand The
Soul Kitchen.Page 16 PageID:
KIRA SEDGEWICK
The Plaintiff , Zena L. Powell upon the introduction via email to Kira Sedgewick did not
meet the facilities manager until September 16th, 2021 during which time the equipment
for the kitchen the Plaintiff was renting was delivered to the facility by Superior
Commercial Kitchens, Inc. after delivery the Plaintiff worked with Kira Sedgewick to
complete the health Department application as it was returned twice as being incorrect
initially, and the second submission needed to be completed a third time on a new
application for clarity and under municipal regulation all applications must be originals
completed in blue or black ink and no notes or crossing out. In compliance with what the
Health department requested the Plaintiff completed a third application submitted and
accepted on September 27th, 2021 via Kira Sedgewick. The approval was complete by
October 8th, 2021 which was the first day of business for The Soul Kitchen.
The invoice for October which should have been the first payment was received by the
Plaintiff on October 10th, 2021 in the amount of $3,635.49 and did not have any sales as
of yet on the delivery hub provided by otter due to the false launch of the brand and
customers ordering when the kitchen was not yet open. The week of October 11th
through the 17th there was a total sale’s on otter under Door Dash of $140.00 and upon
observing the lack of sales on the Otter system the Plaintiff took matters into their own
hands and contacted the delivery platforms to received tablets directly so they can
increase the sales and control advertising campaigns directly from the merchant portal
for the Delivery platform directly like Door Dash and Uber eats. The Plaintiff received
the Door Dash tablet first on October 25th, 2021 and immediately returned the Otter
tablet and printer to the runner for Kira Sedgewick and upon the return of the tablet was
contacted by Kira Sedgewick stating that the Delivery Hub Kitchen Technology must be
used and that it is apart of my contract that I signed after being told via email that
merchants can opt out at anytime as stated by the Defendant(s) sales representative
Georgia Mohrbacher it was just an option merchants are not bound to use the Kitchen
Tech but it is advised for the merchants to use it instead of having multiple tablets for
various delivery platforms and makes it easier for the runners to pickup orders and
know who is arriving and what is still being prepared for delivery. SEE EXHIBIT (B) At
this time the Plaintiff began to inquire as to what the licensing fees were for and
requested an itemization prior to the October payment as the space in front of the
building for advertising brand awareness and informing consumers the facility is no
longer a kidney clinic but a food complex hosting ghost kitchen brands that sell food to
consumers. After the initial email to Kira Sedgewick about the licensing fees and the
services not being provided such as the nightly general cleaning of the kitchen and
coming to the realization that the general kitchen cleaning discussed was not what was
being done but the cleaning staff comes in and cleans the floor by sweeping, mopping
each kitchen with the same un-sanitized water was the extent of cleaning merchants
kitchens each night and that the general cleaning of the equipment was not ever going
to be done by them as stated originally it posed a problem immediately and was
addressed in multiple emails, text, and phone calls directly to Kira Sedgewick and thenPage 17 PageID:
directly corporate via their sales number online and reaching a senior level executive in
the California office by the name of Ramiro Garcia on October 14th, 2021 regarding the
fees thus far not mentioned in the sales presentation and regarding the licensing fee
itself and what is was they are licensing because in the state of New Jersey Licensing
agreements that are for commercial space have advertising space attached to that for
the rate of which Cloud Kitchens Inc. was charging and it was stated that space for your
restaurant name would be located in the front of the building to promote the brand
awareness and the facility. Instead of our names Cloud Kitchens also has a website for
the merchants called Belleville Bites as an additional option for pickup orders where
they place you on their Flipdish Kiosk located in the front of the Building lobby for
customers to order and they must order from the Bellvillebites.com website where Cloud
receives an additional fee in the form of your sales percentage ranging from 4% to 9%
but not the 3% originally stated in the contract agreement. The Bellvillebites.com
website is what they promote for all the merchant stores on that platform. The Plaintiff
initially desired to be on this platform but was again dissatisfied with the incompetent roll
out of The Soul Kitchen brand after seeing it on the platform as of October 25th, and the pricing being wrong and everything from image on the screen the Plaintiff sent
an email asking to be removed from the Flipdish platform on November 18th, 2021 to
Kira Sedgwick which was hostile since The Plaintiff had also sent a message to Otter as
of October 25th, 2021 rescinding any permissions to my delivery platforms and
requesting to opt out of the integration of the platforms into Otter system. The Plaintiff
then received email from Kira Sedgewick regarding returning the Otter tablet expressing
we must use the tablet system and the Plaintiff stated they would not be using the
system as they get no sales on the system and therefore will remain using tablets and
printer provided directly by the delivery hubs.
As of December 2nd, 2021 There was an incident where there was a gas leak and the
facility had to close. When the facility reopened the next day and I was present the
certified electrician who was looking at the heating system with the contractor hired by
cloud stated that the heating system was piped wrong that the smell the merchants had
encountered all the time there was actually gas escaping from one portion of the pipe
that was not light during the initiation of the heating system being turned on. When Kira
Sedgewick was asked if the individual contracted was licensed and if so can she
provide a card to the Plaintiff she ignored the request and stated the individual was
licensed. Just prior to the week of the gas leak during the month of November the
facility had to close due to no water. None of these revenue days were deducted from
the merchants for loss of revenue beyond their control based on Cloud Kitchens being
liable for the maintenance of the commercial facility. Furthermore, the promise a secure
environment is null and void when in fact the facility side entrance is always open prior
to 10:30pm in the evening and anyone can walk into the facility, with only 5 days of
security footage at a time to prevent Cloud Kitchens Inc. from incriminating themselves
with violations of both Federal and State laws which would be reflected in the security
footage if kept longer than 5 days. The current facilities manager Kira Sedgewick was
never there up until Hadiya the supervisor left the company as of December and isPage 18 PageID:
never able to be reach during these emergencies there is no one in the building certified
to shut off the main gas line or water main to the building. There is no cleaning staff
during the day only the staff that shows up during the evening to sweep and mop the
floors for each kitchen and nothing else. Kira is not OSHA or HVAC certified and the
regional director whom is Kip Beach is managing other facilities much further away
making it impossible for him to respond to any emergencies immediately.
KIP BEACH
The Plaintiff spoke with Kip Beach as of December 14th, 2021 in regards to the current
situation and informed him of all the issues with this deal and the current arrears and
what would be a feasible solution for both parties to amicably walk away. And The
Plaintiff stated clearly in short of getting all the money paid directly to Cloud Kitchens
Inc. returned this would be litigated for the fraudulent misrepresentation of the services
provided and omissions of fees assessed after signing the agreement which was
implicitly asked prior to signing and had a direct impact on the client by not providing the
services in totality stated within the presentation, Cloud Kitchen Proposal, and Terms
and Conditions of the KSA order form. The Plaintiff explained that each employee in
executive roles claims they do not know what the sales representative has stated but all
the merchants after discussing the issue were told the same things during their sales
presentation and by different salespeople at different times and have no connection with
each other prior to launching a business within the Cloud Kitchens Facility. Kip Beach
then stated he would take the information back to the higher ups and see if he could get
the transaction approved for us to both walk away peacably and then I received the
email today at 1:13 pm with the termination letter attached for me to be out as of
tomorrow December 17th, 2021 between 9am – 5pm as stated SEE EXHIBIT (C).
The aforementioned was and is the result the Plaintiff stated would occur if the
services stated were not in place from the very beginning of the agreement due to the
Plaintiff being disabled and stated to cloud that they were in breach in October and
throughout November from the emails between Georgia Mohrbacher through to the
emails with Kira Sedgewick and requesting itemization of charges and what the money
paid monthly is utilized for by Cloud Kitchens Inc. when each kitchen is only 200 Square
feet with the exception of Bare Burger Kitchen who has two kitchens converted to one
and is also set to leave by January of 2022 due to the hidden fees and lack of services
first provided in the sale presentation but did not want to do so prior to their contract end
date to avoid litigation per senior level management that was there in October when I
started and began inquiring to other merchants as to what their experience was so far
and what the sales environment looks like since they have opened did they find
themselves profitable and were they happy with the services not being provided
originally stated in the sales presentation and the answer was the same from kitchen 1Page 19 PageID:
Beyond hummus, 2 Smoking of Meats, now 3 Earthly Spice Kati Roll Express, 5 The
nugget Spot, 17 Tiam, 20 Fire Ass Thai, 21 Mama Cecily’s Asian Cuisine, 22 Tamago
Poke, now 23 Blake & Kylies Creole Kitchen. The other 3 merchants left are dealing
with it until their contracts have expired Kitchen 6 Cutters Smokery, Kitchen 10 Baba
Burger, Kitchen 9 Panera, and Kitchen 11 Top Taste Jamaican 2 is an extension of their
brick-and-mortar locations but still not happy with the deceptive practices, and 12 a new
Peruvian kitchen also dissatisfied with the services not being provided as promised in
the sales presentation. The other merchants have stated all if they could leave and get
their money back and go elsewhere without being sued for the remainder of the contract
and losing their money vested altogether, they would but once you have signed the
contract you do not find out about what is not being done until you launch your
restaurant and are already locked in to the agreement. By then you have been charged
as we all were for the period we have not yet occupied the kitchen or launched and not
as stated during the sales pitch and solicitation to sign all under pressure as they state
to you there are only 2 kitchens left the others are all taken so you must grab it if you
want it immediately which in turn is a complete lie as they rotate out the less educated
business owners who do not know how to market or grow their business through
advertising and marketing campaigns. The other vendors are not making any profit and
between the fees charged by Cloud’s third-party vendors that were originally stated to
be partners that provided the services stated in the sales presentation and the fees
were all inclusive of those services that were charged monthly to the merchant under
the current licensing agreement.
VIOLATIONS ALLEGED FOR RELIEF
FIRST VIOLATIONS
Federal Trade Commision Act Section 5(a) Unfair and Deceptive
Business Practices ARTICLE 2 U.C.C. §2-601 Buyer’s Rights on Improper
Delivery, ARTICLE 2 U.C.C. §2-609 Right to Adequate Assurance of
Performance, 18 U.S §1038 (b) False information and Hoaxes, 15 U.S.C. §(b) Consumer Review Protection, The Lanham Act under section 43(a)
False or misleading advertising
Plaintiff re-alleges and repleads all of the allegations in the Introduction and
Statement of Facts of this Brief and incorporate them by reference. The Plaintiff was
deceived into signing the contract through the omission of the information specific
verbal and written inquiries were discussed with regards to any additional fees, start
date of monthly fees, services provided as set forth in the Terms and Conditions of the
KSA and Cloud Kitchens Proposal submitted by Georgia Mohrbacher resulting in health
and financial hardship causing undue injury to the consumer. In accordance with the
Federal Trade Commission Act Section 5(a) Unfair practices are where an act or
practice (1) causes or is likely to cause substantial injury to the consumer, (2) cannot bePage 20 PageID:
reasonably avoided by consumers, and (3) is not outweighed by countervailing benefits
to the consumer or competitors and Deceptive practices are where (1) a representation,
omission, or practice misleads
or is likely to mislead the consumer (2) a consumer’s interpretation of the
representation, omission, or practice is considered reasonable under the circumstances;
and (3) the misleading representation, omission, or practice is material. Defendant(s)
failure to clearly inform customers of contract provisions that permit a change in the
terms and conditions of an agreement. Failure to Inform consumers in a clear and timely
manner about any fees, penalties, or other charges (including charges for any forceplaced products) that have been imposed, and the reasons for their imposition. Failed to
tailor advertisements, promotional materials, disclosures and scripts to take account of
the sophistication and experience of the target audience. Made claims, representations
or statements that mislead members of the target audience about the cost, value,
availability, cost savings, benefits, or terms of the product or service.
The aforementioned would be confirmed during discovery and deposition testimony
by former and present merchants of Cloud kitchens Inc. as all merchant’s cannot be
untruthful about the events that lead them into the agreement and formerly do not know
each other. In evaluating whether a representation, omission or practice is deceptive,
the Agencies will look at the entire advertisement, transaction, or course of dealing to
determine how a reasonable consumer would respond. Written disclosures may be
insufficient to correct a misleading statement or representation, particularly where the
consumer is directed away from qualifying limitations in the text or is counseled that
reading the disclosures is unnecessary. Likewise, oral disclosures or fine print may be
insufficient to cure a misleading headline or prominent written representation. SEE
EXHIBIT (A) emails between salesperson Georgia Mohrbacher and the Plaintiff Zena L.
Powell discussing the language of the contract and the Georgia Mohrbacher stirring me
away from my understanding of the contract and upon telephone contact stating that the
language is standard and to sign the agreement as it had just become the last kitchen
left since our discussions. That as the representative she would forward me the
materials providing what services were included in the contract upon signing and that
they have never just put any merchant out although it was one of my concerns during
the telephone conversation stating that they could just terminate the use of the space at
will for any reason without notice to the licensee. Georgia Mohrbacher stated that has
never happened it was just standard contract the company used in place of a leasehold
agreement as it was less binding and this conversation took place on July 24th, both telephonically and over the email.
Under Section 43(a) of the Lanham Act, a claim can be made against a defendant
for false or misleading advertising. For a claim against a defendant for false advertising,
the following elements are met and the plaintiff must show: (1) defendant made false or
misleading statements as to his own products (or another’s); (2) actual deception, or at
least a tendency to deceive a substantial portion of the intended audience; (3) deception
is material in that it is likely to influence purchasing decisions; (4) the advertised goods
travel in interstate commerce; and (5) a likelihood of injury to plaintiff. However, the
plaintiff does not have to prove actual injury.Page 21 PageID:
In 1971 Hastings Law Journal published Volume 22 issue 5 “A Private Right of
Action under the Federal Trade Commission Act” emphasizing the limited protections of
the act for individual consumers since its inception in 1926. In 1938Wheeler-Lea
Amendment changed the scope of the framework of the act providing for consumer
protections but still there was no uniform law of unfair competition and deceptive trade
practices to allow individual consumers to bring an action for private relief into federal
courts. At the time the article was published the occurrence of consumer fraud trends
had increased and were growing in particular praying on the poor and financially
unsophisticated consumer. Since that time a number of laws under federal code both
United States Code and Uniform Commercial Code have been implemented providing
for such rights to the individual consumer. Within this brief the measures by which
misrepresentation must be proven are clearly outlined in the email communications and
the advertising materials provided by the Defendant(s) which are as follows:
1.
2.
3.
4.
5.
6.
A representation was made
The Claim was false
The claim was known to be false
The Plaintiff relied on this information to make an informed consumer decision
The representation was made with the intent of influencing the Plaintiff
The Plaintiff suffered a material loss
The aforementioned is for Fraudulent misrepresentation, but I am not limiting the
scope of liability of the Defendant(s) to the aforementioned factors, as negligent
misrepresentation, or innocent misrepresentation has caused a material breach in the
licensing agreement and undue financial and physical injury to the Plaintiff. As
previously stated earlier within the brief the Plaintiff informed the salesperson Georgia
Mohrbacher of their current disabilities and make specific inquiries as to what a general
cleaning is during the Sales meeting of July 20th, 2021. The statement made by the
salesperson Georgia Mohrbacher was that a total cleaning of your entire kitchen is done
each night and that all you have to do is tend to your immediate kitchen cooking
equipment and service wares if any. “ Frederico, 507 F.3d at 200” Schechter v. Hyundai
Motor Am., Civil Action No.: 18-13634 (FLW), 11 (D.N.J. Jul. 29, 2019)
The Breach occurred in connection with the omission regarding the prorated
operating fees for September 2021. SEE EXHIBIT(H) INVOICES In addition The
Plaintiff’s Buyer rights for improper delivery of services were violated upon the
preceding actions stated within this brief. the relief sought within this brief will be shown
for such entitlement based on the facts " Fowler v. UPMC Shadyside, 578 F.3d 203, (3d Cir. 2009). The omission based claims The Plaintiff is not required to plead issues
that were or may have been concealed by the Defendants. “An ascertainable loss under
the NJCFA is one that is 'quantifiable or measurable,' not 'hypothetical or illusory.'" Id. at
185” Schechter v. Hyundai Motor Am., Civil Action No.: 18-13634 (FLW), 16 (D.N.J. Jul.
29, 2019)
The Plaintiff has Ascertainable loss as set forth in N.J.S.A. 56:8-19, which authorizes a
statutory remedy for "[a]ny person who suffers any ascertainable loss of moneys orPage 22 PageID:
property, real or personal, as a result of the use or employment by another person of
any method, act, or practice declared unlawful under this act." D'Agostino v. Maldonado,
216 N.J. 168, 184-85 (2013). The protections of the Consumer Review Protection act
and the 14th Amendment affording me equal and equitable protections under the law of
the United States constitution have been violated and when reported to the agencies
that are implemented to protect consumers from these acts alleged in this brief and/or
actions and enforce the aforementioned laws the response is negligent, and no actions
are taken to protect the people in which the Federal Agencies serve. The instructions
are to take up your own civil action in court against the offender as an individual
consumer placing the Burden on the Judicial branch of government to remedy the
unlawful action.
With respect to the Uniform Commercial Code Laws violated section 2-601 Buyer
Rights on Improper Delivery and section 2-609 Right to Adequate Assurance of
Performance the Plaintiff re-alleges the violations affirmed in the aforementioned and
re-alleges the same factual violations for this section of Uniform Commercial Code
violations. In addition to Title 15 of the United States code section 45 (b) and the
Lanham Act section 43 (a) identify the violations mentioned in preceding sections and
are enforced by the case law quoted within this brief. The BPL formula for proving
Breach and the 6-point test of Intent constitute Consumer Fraud under the first alleged
violation of the FTC Act section 5 (a). There must be a representation, omission, or
practice that misleads or is likely to mislead the consumer. An act or practice may be
found to be deceptive if there is a representation, omission, or practice that misleads or
is likely to mislead the consumer. Deception is not limited to situations in which a
consumer has already been misled. Instead, an act or practice may be found to be
deceptive if it is likely to mislead consumers. A representation may be in the form of
express or implied claims or promises and may be written or oral. Omission of
information may be deceptive if disclosure of the omitted information is necessary to
prevent a consumer from being misled. In determining whether an individual statement,
representation, or omission is misleading, the statement, representation, or omission
will not be evaluated in isolation. The Agencies will evaluate it in the context of the
entire advertisement, transaction, or course of dealing to determine whether it
constitutes deception. Acts or practices that have the potential to be deceptive include:
making misleading cost or price claims; using bait-and-switch techniques; offering to
provide a product or service that is not in fact available; omitting material limitations or
conditions from an offer; selling a product unfit for the purposes for which it is sold; and
failing to provide promised services. The representation, omission, or practice must be
material. A representation, omission, or practice is material if it is likely to affect a
consumer’s decision regarding a product or service. In general, information about costs,
benefits, or restrictions on the use or availability of a product or service is material.
When express claims are made with respect to a financial product or service, the claims
will be presumed to be material. Similarly, the materiality of an implied claim will be
presumed when it is demonstrated that the institution intended that the consumer draw
certain conclusions based upon the claim. Claims made with the knowledge that they
are false will also be presumed to be material.Page 23 PageID:
Assessing whether an act or practice is unfair; An act or practice is unfair where
it (1) causes or is likely to cause substantial injury to consumers, (2) cannot be
reasonably avoided by consumers, and (3) is not outweighed by countervailing benefits
to consumers or to competition. The act or practice must cause or be likely to cause
substantial injury to consumers. To be unfair, an act or practice must cause or be likely
to cause substantial injury to consumers. Substantial injury usually involves monetary
harm. An act or practice that causes a small amount of harm to a large number of
people may be deemed to cause substantial injury. An injury may be substantial if it
raises a significant risk of concrete harm. Trivial or merely speculative harms are
typically insufficient for a finding of substantial injury. Emotional impact and other more
subjective types of harm will not ordinarily make a practice unfair.
New Jersey Statute Violations
N.J.S.A. 45:15-16.45 Submission of applicant to the courts; methods of service
45:15-16.46 Violations by brokers, salespeople; fines, penalties N.J.S.A. 56:8-1 &
56:8-2 An act concerning consumer fraud its prevention and penalties thereof
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Plaintiff would like to reiterate the legal arguments in the aforementioned
Sections and have listed the cited New Jersey State statutes in alignment with all the
First
Violations Alleged for Relief.
To obtain the benefit of a license agreement, the property owner must ensure
that its agreement with the prospective user of the premises is indeed a license and not
a lease. This is not necessarily an easy task to accomplish. Merely calling the
agreement a “license” will not make it so. Whether an agreement is held to be a license
and not a lease will depend on the presence or absence in the agreement of the three
essential characteristics of a real estate license: 1) a clause allowing the licensor to
revoke “at will”; 2) the retention by the licensor of absolute control over the premises;
and 3) the licensor’s supplying to the licensee all of the essential services required for
the licensee’s permitted use of the premises. The Third essential characteristic was not
met in this agreement and is maintained by the merchants in cleaning their own
kitchens, purchasing their own janitorial supplies for such use and use of bathrooms
shared in the work space, as well as, developing their own marketing and menus, hood
extraction weekly is not done, no security on the premises and the facility is not secure
during prime operating hours, protections against theft in the shared work space, and
are non-compliant with certified OSHA and HVAC facilities manager available 24 hours
for immediate emergencies.Page 24 PageID:
The Plaintiff reaffirms the violations constituting Consumer Fraud under the New
Jersey State Annotated Laws
N.J.S.A. 45:15-16.45 Submission of applicant to the courts; methods of service
a. For purposes of this act, an applicant for registration submitted to the
commission shall be deemed as submission, by the applicant, to the jurisdiction
of the Courts of the State of New Jersey.
b. In addition to the methods of service provided for in the Rules Governing the
Courts of the State of New Jersey, service may be made by delivering a copy of
the process to the person in charge of the office of the commission at its office,
but that service shall not be effective unless the plaintiff, which may be the
commission in a proceeding instituted by it:
(1) Sends a copy of the process and the pleading by certified mail to the
defendant or respondent at his last known address; and
(2) The plaintiff's affidavit of compliance with this section is filed in the case on or
before the return day of the process, if any, or within the time as the court allows.
c. If any person, including any nonresident of this State, engaged in conduct
prohibited by this act and has not filed a consent of service of process and
personal jurisdiction over him cannot otherwise be obtained in this State, that
conduct authorizes the commission to receive service of process in any
noncriminal proceedings against him or his successor which grows out of that
conduct and which is brought under this act with the same force and validity as if
served on him personally. Notice shall be given as provided in subsection a. of
this section.
N.J.S.A. 45:15-16.46 Violations by brokers, salespeople; fines, penalties
a. Any broker or salesperson who violates any of the provisions of this act shall,
in addition to the penalties set forth herein, be subject to the penalties as set forth
in R.S.45:15-17.
b. Any person who violates any provision of this act or any person who, in an
application for registration filed with the commission, makes any untrue
statement of a material fact or omits to state a material fact shall be fined not less
than $250, nor more than $50,000, per violation.
c. The commission may levy and collect the penalties set forth in subsection b.
of this section after affording the person alleged to be in violation of this act an
opportunity to appear before the commission and to be heard personally or
through counsel on the alleged violations and a finding by the commission thatPage 25 PageID:
said person is guilty of the violation. When a penalty levied by the commission
has not been satisfied within 30 days of the levy, the penalty may be sued for
and recovered by, and in the name of, the commission in a summary proceeding
pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).
d. The commission may, in the interest of justice, compromise any civil penalty,
if in its determination the gravity of the offense or offenses does not warrant the
assessment of the full fine.
N.J.S.A. 45:15-16.52 Applicability of act.
4. a. This act shall not apply to any of the following:
(1) Timeshare plans, whether or not an accommodation or component site is
located in the State, consisting of 10 or fewer timeshare interests;
(2) Timeshare plans, whether or not an accommodation or component site is
located in this State, the use of which extends over any period of three years or
less. For purposes of determining the term of a timeshare plan, the period of any
automatic renewal shall be included , unless a purchaser has the right to
terminate the purchaser's participation in the timeshare plan at any time and
receive a pro rata refund, or the purchaser receives a notice, not less than days, but not more than 60 days, prior to the date of renewal, informing the
purchaser of the right to terminate at any time prior to the date of automatic
renewal ;
(3) Timeshare plans, whether or not an accommodation or component site is
located in the State, under which the prospective purchaser's total financial
obligation will be equal to or less than $3,000 during the entire term of the
timeshare plan;
(4) Component sites of specific timeshare interest multi-site timeshare plans
that are neither located in nor offered for sale in this State, except that these
component sites are still subject to the disclosure requirements of section 10 of
this act;
(5) Offers or dispositions of securities or units of interest issued by a real estate
investment trust regulated under any State or federal statute;
(6) Offers or dispositions of securities currently registered with the Bureau of
Securities within the Division of Consumer Affairs in the Department of Law and
Public Safety.
b. A person shall not be required to register as a developer under this act if:Page 26 PageID:
(1) The person is an owner of a timeshare interest who has acquired the
timeshare interest for the person's own use and occupancy and who later offers it
for resale in a single or isolated transaction; or
(2) The person is a managing entity or an association that is not otherwise a
developer of a timeshare plan in its own right, solely while acting as an
association or under a contract with an association to offer or sell a timeshare
interest transferred to the association through foreclosure, deed in lieu of
foreclosure, or gratuitous transfer, if such acts are performed in the regular
course of, or as an incident to, the management of the association for its own
account in the timeshare plan.
c. If a developer has already registered a timeshare plan under this act, the
developer may offer or dispose of an interest in a timeshare plan that is not
registered under this act if the developer is offering a timeshare interest in the
additional timeshare plan to a current timeshare interest owner of a timeshare
interest in a timeshare plan created or operated by that same developer subject
to the rules and regulations adopted by the commission.
d. The commission may, from time to time, pursuant to any rules and
regulations adopted pursuant to this act, exempt from any of the provisions of
this act any timeshare plan, if it finds that the enforcement of this act with respect
to that plan is not necessary in the public interest, or required for the protection of
purchasers, by reason of the small amount of the purchase price or the limited
character of the offering.
N.J.S.A. 56:8-1 & 56:8-2 An act concerning consumer fraud its prevention and penalties
thereof
56:8-(a) The term “advertisement” shall include-the attempt
directly or indirectly by publication, dissemination, solicitation.
endorsement or circulation or in any other way to induce directly or
indirectly any person to enter or not enter any obligation or
acquire any title or interest in any merchandise or to increase the .
consumption thereof or to make any loan:
(b) The term "Attorney General" shall mean the Attorney General
of the State of New Jersey or any person acting on his behalf;
(c) The term "merchandise” shall include any objects, wares,
goods, commodities, services or anything offered~ directly or
indirectly, to the public for sale;
(d) The term “person” as used in this act shall include any
natural person or his legal representative\:l partnership', corpO)'ation,Page 27 PageID:
company, trust, business entity or association, and any agent,
employee, salesman~ partner, officer, director, member, stockholder,
associate, trustee thereof;
(e) The term, "sale" shall include any sale, rental, or distribution,
offer for sale) rental, or distribution or attempt,
directly or indirectly, to sell, rent or distribute.
56:8-2.
The act use or employment by any person of any
unconscionable commercial practice, deception, fraud, false pretense,
false promise, misrepresentation, or the knowing, concealment, suppression
or; omission, in connection with the sale or advertisement of any
merchandise or real estate or with the subsequent performance of such
person as aforesaid, whether or nor any person has in fact been misled,
deceived or damaged thereby, is declared to be an unlawful practice;
provided, however, that nothing herein contained shall apply to the
Owner or publisher of newspapers) magazines, publications or printed
matter wherein such advertisement when the owner, publisher or
operator has no knowledge of the intent, design or purpose of the
advertiser.
The Plaintiff Re-alleges the violations of this act in the communications between
Georgia Mohrbacher and The Plaintiff questioning the language of the contract
and receiving assurance from the Defendant(s) that the contract was just
standard and that they are not in the practice of evicting viable businesses
reaffirming during the verbal telephonic conversation that the services stated will
be provided.
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
Except for residential lessees and tenants included in section 2 of this act, any
lessee or tenant at will or at sufferance, or for a part of a year, or for one or more
years, of any houses, buildings, lands or tenements, and the assigns, under
tenants or legal representatives of such tenant or lessee, may be removed from
such premises by the Superior Court, Law Division, Special Civil Part in an action
in the following cases:
a. Where such person holds over and continues in possession of all or any part
of the demised premises after the expiration of his term, and after demand made
and written notice given by the landlord or his agent, for delivery of possession
thereof. The notice shall be served either personally upon the tenant or such
person in possession by giving him a copy thereof or by leaving a copy of the
same at his usual place of abode with a member of his family above the age of
14 years.Page 28 PageID:
b. Where such person shall hold over after a default in the payment of rent,
pursuant to the agreement under which the premises are held.
c. Where such person (1) shall be so disorderly as to destroy the peace and quiet
of the landlord or the other tenants or occupants living in said house or the
neighborhood, or (2) shall willfully destroy, damage or injure the premises, or (3)
shall constantly violate the landlord's rules and regulations governing said
premises, provided, such rules have been accepted in writing by the tenant or
are made a part of the lease; or (4) shall commit any breach or violation of any of
the covenants or agreements in the nature thereof contained in the lease for the
premises where a right of re-entry is reserved in the lease for a violation of such
covenants or agreements, and shall hold over and continue in possession of the
demised premises or any part thereof, after the landlord or his agent for that
purpose has caused a written notice of the termination of said tenancy to be
served upon said tenant, and a demand that said tenant remove from said
premises within three days from the service of such notice. The notice shall
specify the cause of the termination of the tenancy, and shall be served either
personally upon the tenant or such person in possession by giving him a copy
thereof, or by leaving a copy thereof at his usual place of abode with some
member of his family above the age of 14 years.
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
No judgment for possession in cases specified in paragraph "a." of section
2A:18-53 of this Title shall be ordered unless:
a. The tenancy, if a tenancy at will or from year to year, has been terminated by
the giving of 3 months' notice to quit, which notice shall be deemed to be
sufficient; or
b. The tenancy, if a tenancy from month to month, has been terminated by the
giving of 1 month's notice to quit, which notice shall be deemed to be sufficient;
or
c. The tenancy, if for a term other than at will, from year to year, or from month to
month, has been terminated by the giving of one term's notice to quit, which
notice shall be deemed to be sufficient; and
d. It shall be shown to the satisfaction of the court by due proof that the notice
herein required has been given.
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
If no sufficient cause is shown to the contrary when the action comes on for trial,
the court shall issue its warrant to any officer of the court, commanding him to
remove all persons from the premises, and to put the claimant into full
possession thereof, and to levy and make the costs out of the goods and chattels
of the person in possession.
No warrant of removal shall issue until the expiration of 3 days after entry of
judgment for possession, except as provided for in chapter 42 of this Title.Page 29 PageID:
The Plaintiff Re-alleges the violations and affirms that a termination letter was
issued for the notice to quit on December 8th 2021 and no court proceedings
have been filed with the Essex County court house special Civil division Landlord
Tenant for the removal of Zena L. Powell DBA as The Soul Kitchen.
N.J.S.A. 2A:18-58 Execution of warrant; use of force
An officer, to whom a warrant is issued by virtue of this article, shall obey the
command of and faithfully execute the same, and may, if necessary to the
execution thereof, uses such force as may be necessary.
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
Proceedings had by virtue of this article shall not be appealable except on the
ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil
action for unlawful proceedings under this article.
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
a. A tenant or prospective tenant may report a violation of the provisions of P.L.
2002, c.133 (C.2A:18-61.62 et al.) to the Director of the Division of Consumer
Affairs in the Department of Law and Public Safety. The director shall investigate
any complaint within 10 days of receipt of the complaint.
b. If the director determines that a violation of this act has occurred:
(1) a penalty may be assessed against the landlord in an amount equal to
six times the monthly rental sought to be imposed upon a tenant in
contravention of the “Notice of Rent Protection Emergency”; or
(2) any penalties for violations of the New Jersey Consumer Fraud Act,
P.L.1960, c.39 (C.56:8-1 et al.)
may be sought by the director.
c. Notwithstanding the provisions of subsections a. and b. of this section, a
tenant shall have the right to petition a court of competent jurisdiction to
terminate a lease containing a provision in violation of the provisions of P.L.
2002, c. 133 (C.2A:18-61.62 et al.).
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Any violation of P.L.2002, c. 133 (C. 2A:18-61.62 et al.) shall be considered a
violation of the New Jersey Consumer Fraud Act, P.L.1960,c.39(C.56:8-1 et
seq.).Page 30 PageID:
CONLCUSION AND PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for a judgment in favor of a fair and just resolution
as follows:
1. Issue a judgment declaring that the acts of the Defendant(s) described herein
Violate
Federal Trade Commission Act Section 5(a) Unfair and Deceptive Business
Practices ARTICLE 2 U.C.C. §2-601 Buyer’s Rights on Improper Delivery,
ARTICLE 2 U.C.C. §2-609 Right to Adequate Assurance of Performance, 18 U.S
§1038 (b) False information and Hoaxes, 15 U.S.C. §45 (b) Consumer Review
Protection, The Lanham Act under section 43(a) False or misleading advertising.
The New Jersey State Statutes as follows N.J.S.A. 45:15-16.45 Submission of
applicant to the courts; methods of service 45:15-16.46 Violations by brokers,
salespeople; fines, penalties N.J.S.A. 56:8-1 & 56:8-2 An act concerning
consumer fraud its prevention and penalties thereof
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
The Magnitude of the Real Estate market has called for these types of
license agreements in lieu of a Lease agreement to circumvent Landlord tenant
Law but in the State of New Jersey The Law applies to both at will tenancy and
year to year. The new agreements also allow large companies like Cloud to
circumvent hiring certified individuals who are bound by license to conduct
business for real property commerce with full disclosure. But the threshold is that
each state is different in its application of their real property laws and the
applications and their definitions are applied as needed from State to State. By
Cloud Kitchens Inc. not observing such laws and attempting to circumvent
Federal violations and State laws for Special civil matters makes the Licensing
agreement they currently have invalid as it has a California Arbitration clause
specifically directing consumers to the California Association of Arbitration for
mediation and it is not the current Arbitration Clause or laws that is applicable in
the state in which they actively do business New Jersey for the current matter.Page 31 PageID:
2. Require the Defendants to revamp their current Licensing agreement to reflect
New Jersey Real property laws and all their remedies for at will tenancy.
3. Require the Defendants to stay within the guidelines of pricing under New
Jersey Property laws for usage of space per Square foot or Flat Fee.
4. Require the Defendants to use Salespeople registered with the State of New
Jersey Real Estate licensing Board which bounds non-broker salespeople to a
standard of conduct under New Jersey Law for the usage and distribution of
residential or commercial property.
5. Launch a formal federal inquiry into the business relationships between Cloud
and its partners in relation to formulating a pyramid business model that through
misrepresentation stirs the consumer into contracts that create failing businesses
due to lack of services rendered under current misleading and deceptive sales
practices. As a result of these actions creating high turnover for the current
properties within a ninety-day period a business owner will incur $12,000 to
$15,000 in expenses for a 200 square foot kitchen which is beyond price
gauging. At the rate of turnover with 24 kitchens minimum in each space doing
this at least 4 times per year the Cloud kitchen earns $1,152,000.00 roughly per
year and this is not including their partners which are supposed to be included in
the services rendered but are disclosed after signing that there are small fees
apart from KATOM. The aforementioned numbers with just one facility located in
each state as they currently do have the Owner grosses $57,600,000.00 per year
and that is on the low estimated end.
5. Nominal, Compensatory damages and Consequential damages to be
awarded to
The Johnson-Powell Group, LLC according to proof at trial;
4. For such other and further relief as the Court may deem just, proper, and
appropriate.Page 32 PageID:
the
Demand for Jury
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Rule 38-1 of
Local Rules, Plaintiff demands trial by jury for all the issues pleaded herein so
triable.
December 17th,
Respectfully Submitted:
By: _____________________
Zena L. Powell
Address:
Telephone:
Email:
20 Howard Drive
Apt. V
Bergenfield, NJ, (551) 275-3771 mobile
(201) 374-2159 home
teoteojohnson@outlook.comPage 33 PageID:
EXHIBIT
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EXHIBIT
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cloudkitchens.com
Proposal:
Kitchen #
Monthly license fees
$3,
ROEs/Operating Costs
$1,800*
Gas, electric, water, security, cleaning,
hood maintenance, internet, trash, landscaping,
pest, grease removal
Onboarding
FREE
Covers health permit application and CAD
drawing on kitchen floor plan
Processing Fee
3% per order
Concessions
2 month deposit instead of
Here’s what’s included:
●
Fire outlets
●
Hoods, extraction
●
Gas points
●
Makeup and tempered air
●
High power lighting
●
High throughput power and gas
●
Cold/Hot water lines
●
Industrial-grade water heating
●
Gas/fire safety system
●
Grease-trap/interceptor
●
WiFi
●
High-end walk-in cold + dry storage
●
Ethernet connectionsPage 109 PageID:
Core Product Offering
●
Pre-built, Move-in Ready Kitchen: 9 ft. hood w/fire suppression, 3-compartment, hand wash, and
food prep sinks, outlets, water + gas valves, make-up air unit (value: $200,000)
●
Managed Services: Water, electricity, gas, basic kitchen wipe down (nightly), hood cleaning, grease
removal, trash, recycling, sewage, internet, pest control, and security - straight passthrough (value:
cost savings from pooling services across multiple licensees - $500/month)
●
Common Areas: Restrooms, break room, ice machine, trash room
●
Order Fulfillment Service: CloudKitchens employees take your food from kitchen to driver (value:
decreased kitchen to driver time/lower driver handoff error, less labor)
Value-Added Services
●
Delivery Platform Onboarding: Menu and image upload, menu optimization, account management
with platforms, ability to add unlimited brands at any time (one-time value: $1,000)
●
Order Processing/Kitchen management software: 1 tablet and printer provided to you which
integrates with DoorDash, GrubHub, UberEats, Postmates, and Chownow (value: $75 - 200/ month)
●
Operational Health Permit: We help you file and manage the application process with the city
●
Ongoing Customer Support - Otter: CloudKitchens support team will handle 95% of customer
inquiries with delivery platforms, is available to 86 menu items, and more (value: $270 / month)
●
Future Foods & CaterMate: Access to additional brands and catering services developed &
supported by us that you can run out of your kitchen (save +$10k of brand creation cost)
Additional Cost Savings
●
Health & Building Permits: Coordination and time and lower costs where feasible
●
Kitchen Planning: Design consultation and CAD drawings to ensure equipment fit and power
requirements are met - required for permitting (one-time value: $3,000)
●
Discounts & Partnerships: TriMark: 10% discount off kitchen equipment, Made In Cookware: 20%
discount off premium cookware
Note: savings estimates based on existing facilities vs standalone location
cloudkitchens.com
Here’s what’s included (detailed)Page 110 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
New Jersey - Belleville
Order Form for Kitchen Services
This Order Form for Kitchen Services (“Order Form”), along with the Kitchen Services Terms and Conditions, available as of the Effective Date at
https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the Order Form upon signature (“Terms and
Conditions”), together form an agreement between the Licensor and Customer identified below (“Kitchen Services Agreement” or “Agreement”).
Capitalized terms not defined in this Order Form shall be as defined in the Terms and Conditions. In this Agreement, “you” means Customer and
“we” or “us” means Licensor.
Licensor Information:
Name:500 Cortlandt Street BEL LLC
, a Delaware limited liability company
Address for Notices: 777 S. Figueroa Street, Floor 41, Los Angeles, California Contact: Limited Liability Company Manager
Email: sales@cloudkitchens.com
Phone: (888) 419-Delivery Hub Address: 500 Cortlandt st, Belleville NJ, Customer/Licensee Information:
Sole Proprietorship
Name: Soul Kitchen
,a
Howard
Drive,
Apt
V,
Bergenfield
NJ, Address for Notices:
Zena
Powell
Contact:
Email: teoteojohnson@outlook.com
Phone:
EIN:
Licensed Space:
1 kitchen(s) in the Delivery Hub (“Kitchen(s)”), along with any designated storage racks (subject to separate fees) outside of the Kitchen(s) and
including certain Delivery Hub common areas as designated by us from time to time (e.g., break rooms, etc.). The Kitchen is “as is” and built out in a
similar manner to other kitchens in the Delivery Hub. Any Changes (i) shall be outlined in a separate improvements agreement provided by Licensor
and (ii) must be approved by Licensor and paid for by Customer as further set forth in the Terms and Conditions. You are still responsible for
beginning payment on the License Fee Start Date whether or not your access is delayed because of the Changes. The maximum amps per Kitchen is
up to 60 amps.
Important Dates:
Term: Period from Effective Date until the expiration of the Initial Term, Renewal Term(s) (if any) or any Continuing Term, whichever is later.
Access Date: 2021-09-Effective Date: Date of last signature below
Initial Term:
Customer Fees:
Payment Method:
License Fee:
Processing
Services Fee:
Storage Services
Fee:
Operating
Expenses:
Refundable OneTime Fee:
Setup Fee:
Beta Products
Fees:
months beginning on License Fee Start Date
License Fee Start Date: days after the Access Date, provided your
Operating Expenses and Storage Services Fees begin on the Access Date.
n/a
[__] ACH
[__] EFT
[__] Credit Card (as primary)
[__] Credit Card (for backup)
[__] Other [_________
]
$ 3600.per month ($ 3600.per Kitchen), starting on the License Fee Start Date. License Fee will be
increased on each anniversary of the Access Date by the greater of (a) 3% or (b) the CPI Increase (defined in the Agreement).
3% of the Total Order as defined in Section 1(b)(i).
The specific fees vary depending on the number of racks and type of storage you wish to use (freezer, dry, etc) and will be set
out in the Kitchen Rules or communicated to you by email. Parties shall agree in writing (email sufficient) as to the number of
racks and type from time to time.
$ USD 1800.00 Plus electricity
per month ($ per Kitchen), as
Customer’s portion (estimated) for utilities and shared services. The Operating Expenses commence on the Access Date.
$ 7200., due upon the Effective Date. If you fail to pay us the Refundable One-Time Fee on the Effective
Date, we can immediately terminate this Agreement by providing you with email notice. You will not be allowed to access
the Licensed Space if you have not paid the Refundable-One Time Fee. Return of your Refundable One-Time Fee is subject
to Section 3(b).
$ ., due prior to the Access Date. The Setup Fee is a one-time and nonrefundable fee used to cover our
setup costs.
Some Delivery Hubs are equipped with the Digital Platform. If available and you use the Digital Platform you shall pay a
Program Fee of 4% of the Total Order, and a Credit Card Processing Fee of 2.9% of the Total Order as further described in
Section 14 (in addition to the Processing Services Fee). You may terminate your use of (or opt back into) the Digital Platform
by providing three (3) days written notice to Licensor or by checking this box
Kitchen Tech:
You are required to use the Kitchen Tech in your Kitchen to ensure efficient operations at the Delivery Hub (e.g. so we can provide the Processing
Services). The Kitchen Tech allows you to aggregate your orders from the following online ordering services for no additional fee: UberEats,
DoorDash, Grubhub, and Postmates. Additional integrations (including with a point of sale or direct to consumer website) requires additional fees.
1 – v070921Page 111 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
Other Terms:
During the first three months of the Initial Term, Customer shall receive a 50%
discount off the License Fee.
We strive to enable your access to the Licensed Space on the access date. You
acknowledge however, that the Licensed Space may not be available on the Access
date due to inspections, construction, cleaning or various other delays. In
such an event, we will notify you of your adjusted access date.
By signing below, each party confirms that it has read and hereby agrees to the terms set forth in this Agreement (including the Terms and
Conditions available as of the Effective Date at https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the
Order Form upon signature). The parties agree that electronic signatures shall have the same effect as originals. If there is any conflict between this
Order Form and the Terms and Conditions, this Order Form shall prevail. The parties have executed this Agreement as of the date of the last
signature below:
Licensor:
Customer:
By: _________________________________________________
Marcel Comtois
Printed Name: ________________________________________
By: _______________________________________________
Zena Powell
Printed Name: ______________________________________
Title: ________________________________________________
General manager
Title: ______________________________________________
Date: ________________________________________________
Date: ______________________________________________
2 – v070921Page 112 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: Kitchen Services Terms and Conditions
New Jersey - Belleville
These Kitchen Services Terms and Conditions (“Terms and Conditions”), taken together with an executed order form for Kitchen Services that
references these Terms and Conditions (“Order Form”), form an agreement between the Licensor and Customer designated in the Order Form (the
“Kitchen Services Agreement” or “Agreement”). If there is any conflict between these Terms and Conditions and an applicable Order Form, the
Order Form shall prevail. If the same parties enter into multiple Order Forms, each Order Form shall be treated as a standalone agreement.
Capitalized terms not defined in these Terms and Conditions shall be as defined in the applicable Order Form. You agree that the Order Form and
the Terms and Conditions constitute our Confidential Information and shall not be disclosed to any third party.
500 Cortlandt Street BEL LLC
1. Kitchen Services
a)
Access and Use. Subject to your compliance with the terms of the Agreement, we grant you and your employees a limited, nontransferable, non-exclusive, fee-bearing license, commencing on the Access Date and for the remainder of the Term, to access the
Licensed Space identified in the applicable Order Form only for the Permitted Use. You agree that you are only receiving a limited license
to access
the Licensed Space and that you are not signing Sole
a lease for
the Licensed Space nor are you receiving any ownership, leasehold
Soul
Kitchen
Proprietorship
estate, leasehold
interest, or
tenancyApt
rightsV,
in the
Licensed Space.NJ,
You are
not permitted to exclude us or our invitees, from the Licensed
20 Howard
Drive,
Bergenfield
Space, Powell
and we may enter at any time, with or without
notice to yu, for any reasonable purpose, including
for the purpose of inspecting,
teoteojohnson@outlook.com
Zena
cleaning and maintaining the Licensed Space. You also agree that the Delivery Hub and the Licensed Space may be subject to inspections
by food, fire and health and safety officials, all having the power to regulate your access and use of the Licensed Space, and you agree to
promptly pay any finesCortlandt
or penalties imposed
by such
inspections againstNJ,
you orresulting from your acts or omissions.
st,
Belleville
i)
Initial Access. We strive to enable your access to the Licensed Space on the Access Date. You acknowledge, however, that the
Licensed Space may not be available on the Access Date due to inspection, construction, cleaning or various other delays. In such an
event, we will notify you of your adjusted Access Date, and the Term and your License Fee and other monthly fee payment
obligations will be based upon the new Access Date. You agree that an adjustment of your Access Date as provided herein does not
constitute a breach of the Agreement, and you agree that we shall have no liability to you whatsoever for the Licensed Space not
being available by the Access Date, including for any staff or supply costs you may incur. You also agree that you are solely
responsible for ensuring you have sufficient permits and licenses to prepare food within your Kitchen (and your Access Date will not
be delayed if you have not obtained your required permits or licenses). We will be responsible for any facility-wide permits required
by Applicable Law.
ii)
Changes. You agree to not make any Changes to the Licensed Space (including installing any signage or other branding inside or
outside the Kitchen) without our prior written consent. If we agree to let you make a Change or if we make a Change at your
request, you will be solely responsible for the costs for such Change.2021-09-Third party contractors or subcontractors may not be used for
be properly licensed and insured as required in the
12Changes without our prior written consent. Your approved contractors shall applicable jurisdiction. You and your contractors shall abide by any rules we set on how, when and where Changes can be made to
minimize disruption to the overall Delivery Hub. If you or your contractors fail to do so, we retain the right to prevent your
contractors from finishing the work, and you agree to pay us for the costs to finish or remove the Changes. You must ensure that any
Changes Xmade by you or your contractors comply with applicable laws, including required inspections and permits. Youn/a
acknowledge
that you must
still pay the License Fee and other applicable fees starting on the License Fee Start Date even if your approved
3600.3600.Changes are pending, in process or not complete. You are solely responsible for all restoration costs to revert your Changes to the
standard “as is” build similar to other Kitchens in the Delivery Hub.
b)
Processing.
i)
Processing Services. You agree to use our order processing services to facilitate the fulfillment of your Orders to your customers
using Third Party Vendors (“Processing Services”), which Processing Services may include, among other things, order verification,
final packaging and labeling, Delivery Hub runner personnel or Third Party Vendors courier distribution. You may not use the
Licensed Space
prepare food
and electricity
beverage product orders that do not utilize our Processing Services. You understand that the
USD to1800.Plus
Processing Services will be provided to you in exchange for your payment of the Processing Services Fee, which is in addition to the
License Fee. You also agree to use the Kitchen Tech, provided by our partner subject to separate terms available at
7200.https://www.tryotter.com/documents/legal/us/tou/kl-073120 (by signing this Agreement you are agreeing to the separate Kitchen
Tech terms). The use of the Kitchen Tech is required in order to provide you with the Processing Services and to ensure efficient
operations at the Delivery Hub. The Processing Services Fee is calculated based on information from Third Party Vendors. The
Processing Services Fee shall be calculated as follows: the percentage listed in the Order Form multiplied by the total order amount
charged by.Customer, excluding sales tax, promotions, and other discounts (“Total Order”). Licensor may modify the Processing
Services Fee by providing you with 30 days email notice.
ii)
Limitations. You understand that the services of Third Party Vendors and the Kitchen Tech are provided by third parties and as such,
Licensor has no responsibility for the Third Party Vendors, Kitchen Tech, or the technology or services they provide. You agree that
Licensor will not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Kitchen Tech.
Notwithstanding anything to the contrary, if you materially breach the Kitchen Tech terms of use and such terms of use are
terminated in accordance therein, we may also immediately terminate this Agreement or suspend your access to the Kitchen Tech
without any further obligation or liability.
1 – v070921Page 113 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: iii)
2.
3.
Storage. If you elect to license storage racks in dry, refrigerated and/or frozen storage in the Delivery Hub, we will make such
During the first three months of the Initial Term, Customer shall receive a 50%
storage racks available to you in exchange for your payment of the applicable Storage Services Fee (as communicated to you via
discount off the License Fee.
email or the Kitchen Rules), which is in addition to the License Fee. You may increase your use of storage racks on a month to month
basis by submitting
a written
to us,
and we
will attempt
to accommodate
storage
to availability.
You may
We strive
to request
enable
your
access
to the
Licensed your
Space
on needs
the subject
access
date. You
decrease your
use
of
storage
racks
or
terminate
your
right
to
use
some
or
all
of
your
storage
racks
by
providing
at
least
days’
acknowledge however, that the Licensed Space may not be available on the Access
prior notice (email
agree that we may
update your Storage
Services Fee
reflect yourother
then-current
use ofIn
storage
date sufficient).
due to You
inspections,
construction,
cleaning
or tovarious
delays.
racks.
such an event, we will notify you of your adjusted access date.
Operational Terms
a)
Rules and Restrictions. You acknowledge that each Delivery Hub is subject to a set of rules established by Licensor that govern the use of
the Delivery Hub and the Licensed Space (“Kitchen Rules”), and you agree to abide by the Kitchen Rules. You agree that we may
unilaterally modify the Kitchen Rules at our discretion at any time upon notice to you; provided such modifications will be reasonable,
non-discriminatory and will not conflict with this Agreement. You are required to keep your Kitchen(s) in a sanitary, clean and usable
condition and in first class order, repair and appearance as required by the Kitchen Rules and Applicable Law. You agree to only use the
Licensed Space for the Permitted Use and no other purpose. Only you and your employees may access the Delivery Hub. All other
persons or entities must receive our prior written approval prior to access any portion of the Delivery Hub. You agree to not use the
Licensed Space in a way that may be dangerous or a nuisance to other licensees in the Delivery Hub. You agree that we may move you to
a different Kitchen within the same Delivery Hub with at least 30 days’ prior notice (email sufficient) at our sole expense. We will apply
the Kitchen Rules in a nondiscriminatory manner.
b)
Compliance. You agree to comply with all Applicable Laws applicable to the operation of your business and use of the Licensed Space. In
addition, you agree all finished Orders and all raw materials, ingredients, processing aids, and packaging material (i) will be stored and
shipped under sanitary conditions, in strict compliance with all Applicable Laws, (ii) will be manufactured, labeled, and packaged in strict
compliance with all Applicable Laws, as well as current good manufacturing and other industry practices, and (iii) will be wholesome,
merchantable, fit for their intended purpose, and fit for human consumption, consistent with current good manufacturing and other
industry practices, and Applicable Laws.
c)
Monitoring. You agree to not take, and not let any third party take, any pictures, videos or other representations of the Licensed Space or
other materials that you receive or have access to in the course of performance of the Agreement. We may utilize video and audio
recording devices to monitor portions of the Delivery Hub, including in your Kitchen(s) and the common areas. This technology may also
include temperature and air flow sensors, electrical use meters, facial recognition software and other technology. You agree to notify
your employees and your other approved visitors, in writing (e.g. through an employee handbook), of the existence of these devices and
shall indemnify us for any claims, losses or expenses incurred by us for your failure to do so.
d)
Vacating the Licensed Space. At the end of the Term, we will perform a deep clean of your Kitchen(s) and deduct the cost from the
Marcel
Comtois
Zenayou
Powell
Refundable
One-Time
Fee (approximately $250 per Kitchen). Notwithstanding the foregoing,
agree to ensure the Licensed Space is
cleaned and in good order, repair and condition on your last day of access. You also agree to remove all of your furniture, equipment,
General manager
personal property and trade fixtures from the Licensed Space (“Remove”) not installed or provided by us (unless we otherwise agree in
writing) prior to your last day of access. If you fail to do so, you agree (i) we have the right, at your expense, to keep, sell, or otherwise
dispose of your furniture, equipment, personal property or trade fixtures that you did not remove by your last date of access, and (ii) you
are required to pay us for any costs or losses incurred to get the Licensed Space ready for the next customer, including the costs of any
deep cleaning or repairs and our lost revenue from the inability to license the space to the next customer due to your failure to Remove.
Fees and Payment Terms
a)
Fees. You agree to pay us the fees for our services as specified in the Order Form, without setoff or deduction, in accordance with the
terms of this Agreement. Operating Expenses and Storage Services Fees begin on your Access Date and may be prorated for partial
months. License Fee payment obligations commence on the License Fee Start Date and may be prorated for partial months. You agree
that any fees owed to us are non-refundable (except for the Refundable One-Time Fee). All fees due to us must be paid by the Payment
Method indicated on the Order Form and by the due date indicated on the invoice (and if no date is given or specified in this Agreement,
within thirty days of the invoice date). We reserve the right to require you to provide a credit card as a backup Payment Method. You
agree to use our specified third party payment platform to facilitate your payments to us, and you acknowledge and agree to the
payment platform terms available at https://www.cloudkitchens.com/documents/legal/us/ksa/ppt072720.pdf which are hereby
incorporated by reference. If you fail to pay us on time, we have the right to collect interest on such sum equal to the lesser of 1.5%
monthly or the highest rate permitted by law. You are also responsible for our costs in collecting unpaid fees, including any attorneys’
fees and costs. During a Continuing Term (defined below), we may increase or decrease the License Fee, Processing Services Fee or
Storage Services Fee upon sixty (60) days' notice.
b)
Refundable One-Time Fee. On the Effective Date, you agree to pay us the Refundable One-Time Fee. Within 60 days of the expiration of
the Agreement, we agree to return the Refundable One-Time Fee, excluding the cost to perform the deep clean (as outlined in Section
2(d)), subject first to the satisfaction of outstanding amounts owed to us. We may use the Refundable One-Time Fee to satisfy
outstanding amounts owed by you or charges incurred by you, including penalty amounts or unforeseen amounts related to Changes or
otherwise. Additionally, in the event you breach the Agreement without cure, you forfeit the Refundable One-Time Fee, and we reserve
the right to pursue additional legal remedies for your breach. If we apply your Refundable One-Time Fee towards anything in accordance
with the Agreement, you agree to immediately pay us an additional Refundable One-Time Fee (or pay an amount sufficient to restore the
Refundable One-Time Fee to its original balance).
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c)
Treatment of Operating Expenses. You shall be responsible for all costs and fees we incur for utilities and other shared services
applicable to the Licensed Space from and after the Access Date (collectively, “Operating Expenses”). Our reasonable estimate of your
monthly Operating Expenses shall be billed to you each month. Such estimate shall be based on (i) metering and other reasonable
methods of monitoring which are used to calculate a reasonable approximation and apportionment of your actual consumption of
utilities, (ii) an equitable apportionment of all kitchens in the Delivery Hub that use such utilities and shared services; or (iii) a
combination of (i) and (ii). On an annual basis (or more frequently if we elect), we may reasonably determine if the Operating Expenses
incurred prior to the date of determination were more or less than the Operating Expenses payments you actually made prior to the date
of such determination. If your payments exceed the actual Operating Expenses, then you will receive a credit towards your future
Operating Expenses until reimbursed in full, and if your payments are less than the actual Operating Expenses, then you shall pay us the
difference within 30 days following receipt of our invoice. Additionally, we may change your estimated monthly Operating Expenses (with
email notice) if, in our reasonable discretion, we believe your actual Operating Expenses will exceed your estimated payments. If you fail
to timely pay your estimated Operating Expenses or any reconciliation payments due hereunder, we may discontinue providing some or
all such services hereunder, and you agree we are not liable for damages or losses resulting from such discontinuance. You agree that we
are not responsible or liable for ensuring uninterrupted availability of any utilities or other services provided by or for you under the
Agreement, except to the extent caused by our gross negligence. You are required to use our existing internet network, provided, you
may use your own firewall, subject to our approval (which cannot be unreasonably withheld). You are solely responsible for all costs for
maintaining, installing and testing your own firewall.
d)
Taxes. The fees you owe to us do not include any Taxes. You are responsible for paying all Taxes associated with the Agreement and the
services we provide except for Taxes assessable on our income or employees. Without limiting the foregoing, you agree to be the seller
with respect to the sale of any food or products sold or distributed out of the Licensed Space and as such, you also agree to be
responsible for the payment of any Taxes for such food or products. If you don’t pay your Taxes (or the government alleges you haven’t
done so), we have the right to immediately terminate the Agreement. You are liable for, and must pay before delinquency, Taxes levied
against any personal facility or trade fixtures placed by you in the Kitchen.
4.
Insurance. We shall maintain commercial general liability insurance and property insurance for the Delivery Hub. You agree to maintain,
during the Term: (a) a commercial general liability insurance policy, in accordance with Insurance Services Office Form CG 00 01, on an
occurrence basis, including protection for your operations, completed operations and personal and advertising injury, covering the Kitchen
and insuring use thereof against claims for injuries, death and property damage occurring on or about the Kitchen, with limits no less than two
million dollars per occurrence; (b) workers’ compensation insurance (with statutory limits if applicable) and Employer’s Liability Insurance with
limits no less than one million dollars per occurrence; (c) food borne illness insurance (with industry standard limits); (d) property insurance in
amounts not less than full replacement cost value of your property and providing such form of protection against risk consistent with
prevailing industry standards for property insurance (with no coinsurance penalty provision), covering the personal property (including any
fixtures or equipment) located within the Delivery Hub (policy must also include loss of business income and extra expense for a minimum of
twelve months); (e) business automobile liability insurance for all owned, non-owned and hired vehicles, including loss of property of others in
your care, as well as the loss of use your property and property of others in your care with limits no less than one million dollars per
occurrence and two million dollars general aggregate; and (f) if we approve for you to sell alcohol out of our space (in writing) and you are
legally permitted to do so, Liquor Liability insurance, of at least one million dollars per occurrence and general aggregate limits of at least two
million dollars. You agree to furnish a certificate of insurance evidencing the above policy limits. All liability insurance maintained by you must
(i) name Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers (and its
mortgagee, if applicable) as additional insured under such policy; (ii) be in a form reasonably satisfactory to us, with an insurance carrier
reasonably satisfactory to us; and (iii) be primary insurance (at least as broad as ISO CG 20 01 04 13). Any insurance or self-insurance
maintained by Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers, shall
be excess of your insurance and shall not contribute with it. All such insurance is subject to modification or cancellation only upon ten (10)
days’ written notice to each certificate holder. The issuance of any insurance policy required under the Agreement, or the minimum limits
specified in the Agreement with respect to your insurance coverage, will not be deemed to limit or restrict in any way your liability arising
under or with respect to the Agreement. You hereby grant to Licensor a waiver of any right to subrogation which any of your insurers may
acquire against the Licensor by virtue of the payment of any loss under such insurance. You agree to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Licensor has received a waiver of
subrogation endorsement from the insurer.
5.
Confidentiality. Each party agrees to not use the other party’s Confidential Information except as necessary for the performance of the
Agreement and will not disclose the other party’s Confidential Information to any third party except to those of the receiving party’s
employees and contractors who have a need to know such Confidential Information for the performance of the Agreement, provided that
each such employee or contractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms
set forth in the Agreement. You agree that the fact you have entered into the Agreement and are licensing space from us, and the terms of the
Agreement, constitute our Confidential Information. Each party will employ all reasonable steps to protect the other party’s Confidential
Information from unauthorized use or disclosure, including the steps you take to protect its own Confidential Information. The foregoing
obligations will not restrict the receiving party from disclosing the other party’s Confidential Information: (a) pursuant to the order or
requirement of a court, administrative agency, or other governmental body, provided that the receiving party give reasonable notice to the
disclosing party to contest such order or requirement; and (b) to receiving party’s legal or financial advisors, provided the receiving party is
responsible for ensuring such information remains confidential. The receiving party is liable for any breaches of confidentiality by its
employees, contractors, legal or financial advisors.
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6.
Representations and Warranties. Each party represents and warrants as to itself that (a) it has the right to enter into and perform the
Agreement and that the individual signing the Order Form has the right to bind their respective company, and (b) it will not violate any
Applicable Law or obligations to any third party by entering into and performing under the Agreement. You represent and warrant that you
have all permits and licenses required to prepare and sell food and beverage products out of the Licensed Space (including any permits
required for you to prepare food in the Kitchen).
7.
Disclaimers; Limits of Liability
a)
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (i) WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THE AGREEMENT, AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY, CARE, NON-INFRINGEMENT, PERFORMANCE, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED, AND (ii) THE LICENSED SPACE AND RELATED SERVICES, THE TECHNOLOGY AND RELATED HARDWARE,
AND ANY OTHER GOODS, SERVICES, OR TECHNOLOGY THAT MAY BE PROVIDED BY US OR OUR PARTNERS HEREUNDER ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF LOSS OR DAMAGE TO YOUR FOOD AND BEVERAGE PRODUCTS. YOU AGREE THAT
NEITHER WE, NOR ANY OF OUR AGENTS, HAVE MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED SPACE,
THE DELIVERY HUB OR THE TECHNOLOGY, OR WITH RESPECT TO THEIR SUITABILITY FOR THE CONDUCT OF YOUR BUSINESS, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT.
b)
Limits of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE SHALL NOT, AND OUR AFFILIATES SHALL NOT, BE
LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING
CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE
LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS, COST, DAMAGE OR OTHER LIABILITY THAT RESULTS FROM ANY SCHEDULED OR
UNSCHEDULED DOWNTIME OF THE KITCHEN TECH OR YOUR INABILITY TO ACCESS YOUR KITCHEN. NOTWITHSTANDING ANYTHING TO
THE CONTRARY ELSEWHERE IN THE AGREEMENT, OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT
WILL NOT EXCEED THE MONTHLY LICENSE FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO
THE CLAIM. NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL
ACTIVITY.
8.
Indemnification. You agree, at your sole expense, to indemnify, hold harmless and, at our election, defend Indemnitees from and against any
and all losses, costs and expenses of any kind, including reasonable attorneys’ fees, claim, demand or action, incurred by any Indemnitee
arising from or related to: (a) your business, your food and beverage products or your use of Third Party Vendors; (b) your negligence or willful
misconduct; (c) risks against which you are insured or required to be insured against as specified in the Agreement; (d) acts or omissions of
your employees, contractors or any other of your invitees to the Licensed Space; or (e) a breach or alleged breach of the Agreement by you or
your employees. You agree to not settle or otherwise dispose of any third party claim, demand or action against an Indemnitee without our
prior written approval, which shall not be unreasonably withheld.
9.
Term and Termination
a)
Term. The Agreement will begin as of the Effective Date and remain in effect until the end of the later of the Initial Term, Renewal Term
or Continuing Term. Either party may terminate this Agreement by providing a written notice of non-renewal no later than 60 days prior
(“Notice”) to the end of the applicable Initial Term or Renewal Term. If neither party has provided Notice, at the end of the later of the (i)
Initial Term or (ii) Renewal Term (if any), this Agreement shall continue until either party terminates this Agreement by providing at least
sixty (60) notice ("Continuing Term"). For example, if the last day of the Initial Term is July 17 (and there is no Renewal Term) and you
provide 60 days notice on August 1, then the Continuing Term will continue until (and the Agreement will terminate on) September 30.
b)
Termination. A party may terminate the Agreement in the event of a material breach by the other party, provided, such other party is
provided with written notice of such breach and at least 30 days to cure the breach after receipt of such notice. Notwithstanding the
foregoing, in addition, we may terminate the Agreement (including your right to access the Licensed Space) immediately upon written
notice to you if any of the following occur: (i) you fail to make any payments owed to us and fail to cure within 7 days, (ii) you breach
Sections 1(b) or 5 of this Agreement, (iii) you fail to use the Licensed Space within 15 days of the Access Date or communicate that you do
not intend to use the Licensed Space, (iv) you breach the Agreement and the breach involves an illegal, hazardous or dangerous
condition, including your failure (or an allegation that you have failed) to comply with all Applicable Laws, (v) you file for bankruptcy, have
an administrator appointed over your business or assets, pursue a corporate reorganization, corporate voluntary arrangement, or similar,
you make an assignment for the benefit of creditors, are insolvent, or admit you won’t be able to meet your debts as they mature, or (vi)
if any part of the Licensed Space is taken by the exercise of the power of eminent domain.
c)
Effect of Termination. Upon termination or expiration of this Agreement you may no longer access the Licensed Space. Outstanding
payment obligations and Sections 5-13 will survive any termination or expiration of the Agreement. Without limiting our other rights or
remedies, in the event the Agreement is terminated (except for our breach), you forfeit the Refundable One-Time Fee and you will owe
the License Fees for the remainder of the Term.
10. Force Majeure. A “Force Majeure Event” means an event beyond the reasonable control of a party, which prevents the party from complying
with its obligations under the Agreement, including an act of God (fire, earthquake, flood, drought, epidemic, pandemic, etc.), war or other
hostilities, acts or threats of terrorism, strikes or acts of civil disturbance, utility outages, and shortages of materials or labor. In no event shall
either party be considered in breach of this Agreement to the extent its obligations are prevented or delayed, directly or indirectly, by a Force
Majeure Event, and the period of time for performance shall be extended until such event has ended. Notwithstanding anything to the
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contrary, obligations to pay fees owed hereunder shall not be delayed, waived, canceled, or otherwise affected by a Force Majeure Event,
even if you cannot use the Licensed Space due to the Force Majeure Event.
11. Arbitration. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON
AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each
party agrees that any claim or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration
before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for
arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles,
California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be
entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems
proper in the circumstances, only to the extent permitted by the Agreement and Applicable Law, provided that the arbitrator will not have the
authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses.
Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding
between you and Licensor will not be consolidated with any other arbitration proceeding involving Licensor or any other person or entity.
12. Miscellaneous. Any notice or other communication to Licensor under this Agreement shall be in writing and either delivered to the address in
the Order Form in person (effective when received) or by an overnight commercial delivery service (effective one business day after sending).
You agree that we may use the email address on the Order Form to send you notices under this Agreement (effective on the day sent). You
may not assign, convey, delegate, lease, sublet, sublicense or otherwise transfer in any manner this Agreement, or any of your rights,
remedies or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without our prior written consent,
and any purported assignment or transfer by you in violation of this provision is void. We may assign or otherwise transfer this Agreement,
including any of our rights, remedies or obligations, in whole or in part, at any time. The Agreement will be binding upon each party and its
successors and permitted assigns. We may subcontract any of the services in our sole discretion. The Agreement may only be modified,
supplemented or amended in a writing signed by both parties. No failure or delay by a party in exercising any right, power, or privilege under
the Agreement will operate as a waiver hereunder. The invalidity or unenforceability of any provision of the Agreement will not affect the
validity or enforceability of any other provision of the Agreement, all of which will remain in full force and effect. This Agreement shall be
governed by the laws of the State of California, without regard to its choice of law rules. Subject to the section entitled “Arbitration” above,
the parties agree that any dispute arising from or related to the Agreement must be resolved exclusively in Federal or State courts located in
Los Angeles County, California. The Agreement contains the entire understanding of the parties regarding its subject matter, and supersedes
all prior and related contemporaneous agreements and understandings between the parties. When used herein, the term “including” shall be
deemed to mean “including, without limitation”.
13. Definitions.
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
“Access Date” means the estimated date you will be able to access your Kitchen (your actual first day of access may be pushed back or
moved up due to inspection, construction, cleaning or various other delays).
“Applicable Laws” means applicable federal, state, local, or other laws, rules, regulations, ordinances, or similar, including all applicable
health and safety and employment and labor laws.
“Changes” means any alterations, modifications, changes, or improvements to the Licensed Space made by either you or us.
“CPI Increase” means the increase in the Consumer Price Index (CPI-U, All Urban Consumers, U.S. City Average, 1982/84=100) over the
Base Index. The Base Index is that value published immediately prior to the Access Date.
“Confidential Information” means information or materials that: (a) are disclosed in writing or orally and are either marked or identified
as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (b) the receiving party knows or has reason to know,
by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing,
product and financial information, in any form or format; provided, however, that Confidential Information does not include information
that: (i) is in or enters the public domain through no act or omission of the receiving party; (ii) a party lawfully received from a third party
without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (iii) a party
knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or (iv) a
party independently developed without use of, or access to, any Confidential Information.
“Indemnitees” means Licensor and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers,
shareholders, members, and representatives, and our other space licensees and their employees and contractors.
“Kitchen Tech” means the proprietary technology platform (including all related software, services and hardware) provided by our
partner, which facilitates the Processing Services and enables interaction with Third Party Vendors while in the Licensed Space. Your use
of the Kitchen Tech is subject to the terms of use available at https://www.tryotter.com/documents/legal/us/tou/kl-“Orders” means orders for the delivery of food and beverage products placed by the end users of Third Party Vendors apps, websites or
other means for ordering.
“Permitted Use” means the storing, preparing and packaging of your food and beverage products for delivery to your customers to fulfill
Orders in the ordinary course of your restaurant and/or catering business.
“Taxes” means taxes, levies, duties or other similar government assessments of any nature, including value added, sales and use, or
withholding taxes.
“Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and/or other third
party vendors or service providers that you may elect to use.
l)
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14. Beta Products. We are constantly looking to evolve and create new products and services to make your use of the licensed Kitchen more
efficient. As such, we developed new beta products and services (collectively, “Beta Products”) which you can use in accordance with the
terms below. Orders placed via the new Beta Products shall be included within the definition of Orders, and as such, all other terms in the
Agreement shall apply to your use of these services and these Orders. The following outlines the Beta Products that may be made available.
a) Flipdish Kiosk and Online Ordering. In the Delivery Hub, we may allow the public to access the Delivery Hub and place orders via a kiosk
(“Kiosk”) and/or through an online ordering portal (“Web Platform” together with Kiosk “Digital Platform”). You agree to offer your
merchandise and products for purchase via the Digital Platform. The public may be able to place orders via the Digital Platform for brands
owned and operated by you or also brands owned and operated by us (if you’ve signed an agreement to comanage Future Foods brands).
i) Please note that the Digital Platform services are provided in partnership by Flipdish. To use the Digital Platform, you must
accept and agree to Flipdish’s terms and conditions, which may be accessed when you sign on and access the Digital Platform.
ii) For each Order made through the Digital Platform, in addition to the Processing Fee in the Kitchen Services Agreement or any other
Flipdish specific fees, you agree to pay the additional fees outlined below:
(1) Program Fee of 4% of the Total Order, and
(2) Credit Card Processing Fee of 2.9% of the Total Order plus the applicable sales tax.
iii) You hereby grant us and our affiliates a worldwide, royalty-free, non-exclusive license to use Your IP for the purpose of providing the
Digital Platform services. You will retain ownership of Your IP at all times. “Your IP” means your restaurant names, trademarks, other
identifying indicators, your menu descriptions and pictures, and any marketing assets you provide us to help market your products.
iv) You agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Digital Platform Data
(defined below), except as required to fulfill the food or product order and as otherwise required to perform your obligations and
services under the Agreement. If you become aware of any unauthorized access to Digital Platform Data, you agree to immediately
notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably
requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us
and will be responsible for damages resulting from your failure to comply. You will be responsible for damages resulting from
sharing your login credentials with unauthorized third parties or otherwise permitting unauthorized access to your account. You may
not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the
source code of the Digital Platform; damage, destroy or impede the services provided through the Digital Platform; transmit
injurious code; or bypass or breach any security protection on the Digital Platform. Digital Platform Data shall mean any information
that we provide or make accessible to you through the Digital Platform, including without limitation any personal information.
“Digital Platform Data” shall mean any information that we provide or make accessible to you through the Digital Platform,
including without limitation Personal Information. “Personal Information” means information that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or
household.
v) In using the Digital Platform, you agree to: (i) continuously update your in-store menu, including the price of each item on such
menu; (ii) continuously monitor your menu and store information on the Digital Platform, promptly make updates to reflect the
most up-to-date products, pricing and other information or immediately notify us of any errors or changes in writing; (iii) accept all
food or product orders placed from your then-current menu; (iv) prepare the orders for customer pickup at the designated time; (iv)
process in the order in which they are received; (v) continuously update the pricing, availability, description, or other characteristics
of the food or products; (vi) notify us if you closes earlier than your standard hours of operation or plans to close earlier than your
standard hours of operation; provide the same utensils, napkins, bags and other materials that you would typically provide in a
standard take-out or delivery order; and (vii) on an ongoing basis, review and confirm the transactions, fees and charges on orders
via the Digital Platform, and promptly communicate to us and Flipdish of any inaccuracies.
vi) YOU ACKNOWLEDGE THAT FLIPDISH IS PROVIDING THE DIGITAL PLATFORM SERVICES, INCLUDING THE COLLECTION AND
DISBURSEMENT OF FEES AND PAYMENTS. YOU HEREBY WAIVE, RELEASE AND DISCHARGE FOREVER FULLY AND UNCONDITIONALLY
RELEASE US, AND OUR AFFILIATES, AGENTS, REPRESENTATIVES, SUBSIDIARIES FROM ALL DAMAGES, CLAIMS, CAUSES OF ACTION,
LOSSES, DEMANDS, JUDGEMENTS, ATTORNEYS’ FEES ARISING FROM OR RELATED TO YOUR USE OF A BETA PRODUCT OR ANY
ACTIONS OR INACTIONS OF FLIPDISH OR ANY OTHER THIRD PARTY PROVIDER THAT PROVIDES SERVICES UNDER THE DIGITAL
PLATFORM. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF
SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS
FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
b) Notwithstanding anything to the contrary, we may modify or discontinue the Beta Products at any time, and we can suspend or
terminate your use of the Beta Products at any time with or without notice to you. You agree that we may unilaterally modify the
terms and conditions (including fees owed by you) regarding the use of the Beta Products. In such an event, we will provide you with
at least thirty (30) days notice of any modification. By continuing to use the Beta Products, you agree to such modification.
c) The Beta Products may contain features, functionality or modules that will not be included in the final production version of the Beta
Products, if released, or that will be marketed separately for additional fees. You expressly agree that we do not have an obligation to
ensure the Beta Products function properly or at all. You hereby release Indemnitees for any losses, claims (known or unknown),
expenses, or liability resulting from your use of the Beta Products. Further, you agree to indemnify, defend and hold Indemnitees
harmless for any losses (including, without limitation, losses incurred in connection with any claims) arising from or related to your use of
the Beta Products. This obligation shall survive any termination or expiration of the Agreement. YOUR USE OF THE BETA PRODUCTS IS AT
YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY
6 – v070921Page 118 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: ARISING OUT OF OR RELATED TO YOUR USE OF THE BETA PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7 – v070921Page 119 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: Kitchen Services Terms and Conditions
New Jersey - Belleville
These Kitchen Services Terms and Conditions (“Terms and Conditions”), taken together with an executed order form for Kitchen Services that
references these Terms and Conditions (“Order Form”), form an agreement between the Licensor and Customer designated in the Order Form (the
“Kitchen Services Agreement” or “Agreement”). If there is any conflict between these Terms and Conditions and an applicable Order Form, the
Order Form shall prevail. If the same parties enter into multiple Order Forms, each Order Form shall be treated as a standalone agreement.
Capitalized terms not defined in these Terms and Conditions shall be as defined in the applicable Order Form. You agree that the Order Form and
the Terms and Conditions constitute our Confidential Information and shall not be disclosed to any third party.
500 Cortlandt Street BEL LLC
1. Kitchen Services
a)
Access and Use. Subject to your compliance with the terms of the Agreement, we grant you and your employees a limited, nontransferable, non-exclusive, fee-bearing license, commencing on the Access Date and for the remainder of the Term, to access the
Licensed Space identified in the applicable Order Form only for the Permitted Use. You agree that you are only receiving a limited license
to access
the Licensed Space and that you are not signing Sole
a lease for
the Licensed Space nor are you receiving any ownership, leasehold
Soul
Kitchen
Proprietorship
estate, leasehold
interest, or
tenancyApt
rightsV,
in the
Licensed Space.NJ,
You are
not permitted to exclude us or our invitees, from the Licensed
20 Howard
Drive,
Bergenfield
Space, Powell
and we may enter at any time, with or without
notice to you, for any reasonable purpose,including for the purpose of inspecting,
teoteojohnson@outlook.com
Zena
cleaning and maintaining the Licensed Space. You also agree that the Delivery Hub and the Licensed Space may be subject to inspections
by food, fire and health and safety officials, all having the power to regulate your access and use of the Licensed Space, and you agree to
promptly pay any finesCortlandt
or penalties imposed
by such
inspections againstNJ,
you orresulting from your acts or omissions.
st,
Belleville
i)
Initial Access. We strive to enable your access to the Licensed Space on the Access Date. You acknowledge, however, that the
Licensed Space may not be available on the Access Date due to inspection, construction, cleaning or various other delays. In such an
event, we will notify you of your adjusted Access Date, and the Term and your License Fee and other monthly fee payment
obligations will be based upon the new Access Date. You agree that an adjustment of your Access Date as provided herein does not
constitute a breach of the Agreement, and you agree that we shall have no liability to you whatsoever for the Licensed Space not
being available by the Access Date, including for any staff or supply costs you may incur. You also agree that you are solely
responsible for ensuring you have sufficient permits and licenses to prepare food within your Kitchen (and your Access Date will not
be delayed if you have not obtained your required permits or licenses). We will be responsible for any facility-wide permits required
by Applicable Law.
ii)
Changes. You agree to not make any Changes to the Licensed Space (including installing any signage or other branding inside or
outside the Kitchen) without our prior written consent. If we agree to let you make a Change or if we make a Change at your
request, you will be solely responsible for the costs for such Change.2021-09-Third party contractors or subcontractors may not be used for
be properly licensed and insured as required in the
12Changes without our prior written consent. Your approved contractors shall applicable jurisdiction. You and your contractors shall abide by any rules we set on how, when and where Changes can be made to
minimize disruption to the overall Delivery Hub. If you or your contractors fail to do so, we retain the right to prevent your
contractors from finishing the work, and you agree to pay us for the costs to finish or remove the Changes. You must ensure that any
Changes Xmade by you or your contractors comply with applicable laws, including required inspections and permits. Youn/a
acknowledge
that you must
still pay the License Fee and other applicable fees starting on the License Fee Start Date even if your approved
3600.3600.Changes are pending, in process or not complete. You are solely responsible for all restoration costs to revert your Changes to the
standard “as is” build similar to other Kitchens in the Delivery Hub.
b)
Processing.
i)
Processing Services. You agree to use our order processing services to facilitate the fulfillment of your Orders to your customers
using Third Party Vendors (“Processing Services”), which Processing Services may include, among other things, order verification,
final packaging and labeling, Delivery Hub runner personnel or Third Party Vendors courier distribution. You may not use the
Licensed Space
prepare food
and electricity
beverage product orders that do not utilize our Processing Services. You understand that the
USD to1800.Plus
Processing Services will be provided to you in exchange for your payment of the Processing Services Fee, which is in addition to the
License Fee. You also agree to use the Kitchen Tech, provided by our partner subject to separate terms available at
7200.https://www.tryotter.com/documents/legal/us/tou/kl-073120 (by signing this Agreement you are agreeing to the separate Kitchen
Tech terms). The use of the Kitchen Tech is required in order to provide you with the Processing Services and to ensure efficient
operations at the Delivery Hub. The Processing Services Fee is calculated based on information from Third Party Vendors. The
Processing Services Fee shall be calculated as follows: the percentage listed in the Order Form multiplied by the total order amount
charged by.Customer, excluding sales tax, promotions, and other discounts (“Total Order”). Licensor may modify the Processing
Services Fee by providing you with 30 days email notice.
ii)
Limitations. You understand that the services of Third Party Vendors and the Kitchen Tech are provided by third parties and as such,
Licensor has no responsibility for the Third Party Vendors, Kitchen Tech, or the technology or services they provide. You agree that
Licensor will not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Kitchen Tech.
Notwithstanding anything to the contrary, if you materially breach the Kitchen Tech terms of use and such terms of use are
terminated in accordance therein, we may also immediately terminate this Agreement or suspend your access to the Kitchen Tech
without any further obligation or liability.
1 – v070921Page 120 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: iii)
2.
3.
Storage. If you elect to license storage racks in dry, refrigerated and/or frozen storage in the Delivery Hub, we will make such
During the first three months of the Initial Term, Customer shall receive a 50%
storage racks available to you in exchange for your payment of the applicable Storage Services Fee (as communicated to you via
discount off the License Fee.
email or the Kitchen Rules), which is in addition to the License Fee. You may increase your use of storage racks on a month to month
basis by submitting
a written
to us,
and we
will attempt
to accommodate
storage
to availability.
You may
We strive
to request
enable
your
access
to the
Licensed your
Space
on needs
the subject
access
date. You
decrease your
use
of
storage
racks
or
terminate
your
right
to
use
some
or
all
of
your
storage
racks
by
providing
at
least
days’
acknowledge however, that the Licensed Space may not be available on the Access
prior notice (email
agree that we may
update your Storage
Services Fee
reflect yourother
then-current
use ofIn
storage
date sufficient).
due to You
inspections,
construction,
cleaning
or tovarious
delays.
racks.
such an event, we will notify you of your adjusted access date.
Operational Terms
a)
Rules and Restrictions. You acknowledge that each Delivery Hub is subject to a set of rules established by Licensor that govern the use of
the Delivery Hub and the Licensed Space (“Kitchen Rules”), and you agree to abide by the Kitchen Rules. You agree that we may
unilaterally modify the Kitchen Rules at our discretion at any time upon notice to you; provided such modifications will be reasonable,
non-discriminatory and will not conflict with this Agreement. You are required to keep your Kitchen(s) in a sanitary, clean and usable
condition and in first class order, repair and appearance as required by the Kitchen Rules and Applicable Law. You agree to only use the
Licensed Space for the Permitted Use and no other purpose. Only you and your employees may access the Delivery Hub. All other
persons or entities must receive our prior written approval prior to access any portion of the Delivery Hub. You agree to not use the
Licensed Space in a way that may be dangerous or a nuisance to other licensees in the Delivery Hub. You agree that we may move you to
a different Kitchen within the same Delivery Hub with at least 30 days’ prior notice (email sufficient) at our sole expense. We will apply
the Kitchen Rules in a nondiscriminatory manner.
b)
Compliance. You agree to comply with all Applicable Laws applicable to the operation of your business and use of the Licensed Space. In
addition, you agree all finished Orders and all raw materials, ingredients, processing aids, and packaging material (i) will be stored and
shipped under sanitary conditions, in strict compliance with all Applicable Laws, (ii) will be manufactured, labeled, and packaged in strict
compliance with all Applicable Laws, as well as current good manufacturing and other industry practices, and (iii) will be wholesome,
merchantable, fit for their intended purpose, and fit for human consumption, consistent with current good manufacturing and other
industry practices, and Applicable Laws.
c)
Monitoring. You agree to not take, and not let any third party take, any pictures, videos or other representations of the Licensed Space or
other materials that you receive or have access to in the course of performance of the Agreement. We may utilize video and audio
recording devices to monitor portions of the Delivery Hub, including in your Kitchen(s) and the common areas. This technology may also
include temperature and air flow sensors, electrical use meters, facial recognition software and other technology. You agree to notify
your employees and your other approved visitors, in writing (e.g. through an employee handbook), of the existence of these devices and
shall indemnify us for any claims, losses or expenses incurred by us for your failure to do so.
d)
Vacating the Licensed Space. At the end of the Term, we will perform a deep clean of your Kitchen(s) and deduct the cost from the
Marcel
Comtois
Zenayou
L.agree
Powell
Refundable
One-Time
Fee (approximately $250 per Kitchen). Notwithstanding the foregoing,
to ensure the Licensed Space is
cleaned and in good order, repair and condition on your last day of access. You also agree to remove all of your furniture, equipment,
Zena L. Powell General manager
General
Manager
personal
property
and trade fixtures from the Licensed Space (“Remove”) not installed or provided by us (unless we otherwise agree in
writing)
prior to your last day of access. If you fail to do so, you agree (i) we have the right,
your expense,
July 30,
Julyat 27,
2021 to keep, sell, or otherwise
dispose of your furniture, equipment, personal property or trade fixtures that you did not remove by your last date of access, and (ii) you
are required to pay us for any costs or losses incurred to get the Licensed Space ready for the next customer, including the costs of any
deep cleaning or repairs and our lost revenue from the inability to license the space to the next customer due to your failure to Remove.
Fees and Payment Terms
a)
Fees. You agree to pay us the fees for our services as specified in the Order Form, without setoff or deduction, in accordance with the
terms of this Agreement. Operating Expenses and Storage Services Fees begin on your Access Date and may be prorated for partial
months. License Fee payment obligations commence on the License Fee Start Date and may be prorated for partial months. You agree
that any fees owed to us are non-refundable (except for the Refundable One-Time Fee). All fees due to us must be paid by the Payment
Method indicated on the Order Form and by the due date indicated on the invoice (and if no date is given or specified in this Agreement,
within thirty days of the invoice date). We reserve the right to require you to provide a credit card as a backup Payment Method. You
agree to use our specified third party payment platform to facilitate your payments to us, and you acknowledge and agree to the
payment platform terms available at https://www.cloudkitchens.com/documents/legal/us/ksa/ppt072720.pdf which are hereby
incorporated by reference. If you fail to pay us on time, we have the right to collect interest on such sum equal to the lesser of 1.5%
monthly or the highest rate permitted by law. You are also responsible for our costs in collecting unpaid fees, including any attorneys’
fees and costs. During a Continuing Term (defined below), we may increase or decrease the License Fee, Processing Services Fee or
Storage Services Fee upon sixty (60) days' notice.
b)
Refundable One-Time Fee. On the Effective Date, you agree to pay us the Refundable One-Time Fee. Within 60 days of the expiration of
the Agreement, we agree to return the Refundable One-Time Fee, excluding the cost to perform the deep clean (as outlined in Section
2(d)), subject first to the satisfaction of outstanding amounts owed to us. We may use the Refundable One-Time Fee to satisfy
outstanding amounts owed by you or charges incurred by you, including penalty amounts or unforeseen amounts related to Changes or
otherwise. Additionally, in the event you breach the Agreement without cure, you forfeit the Refundable One-Time Fee, and we reserve
the right to pursue additional legal remedies for your breach. If we apply your Refundable One-Time Fee towards anything in accordance
with the Agreement, you agree to immediately pay us an additional Refundable One-Time Fee (or pay an amount sufficient to restore the
Refundable One-Time Fee to its original balance).
2 – v070921Page 121 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
c)
Treatment of Operating Expenses. You shall be responsible for all costs and fees we incur for utilities and other shared services
applicable to the Licensed Space from and after the Access Date (collectively, “Operating Expenses”). Our reasonable estimate of your
monthly Operating Expenses shall be billed to you each month. Such estimate shall be based on (i) metering and other reasonable
methods of monitoring which are used to calculate a reasonable approximation and apportionment of your actual consumption of
utilities, (ii) an equitable apportionment of all kitchens in the Delivery Hub that use such utilities and shared services; or (iii) a
combination of (i) and (ii). On an annual basis (or more frequently if we elect), we may reasonably determine if the Operating Expenses
incurred prior to the date of determination were more or less than the Operating Expenses payments you actually made prior to the date
of such determination. If your payments exceed the actual Operating Expenses, then you will receive a credit towards your future
Operating Expenses until reimbursed in full, and if your payments are less than the actual Operating Expenses, then you shall pay us the
difference within 30 days following receipt of our invoice. Additionally, we may change your estimated monthly Operating Expenses (with
email notice) if, in our reasonable discretion, we believe your actual Operating Expenses will exceed your estimated payments. If you fail
to timely pay your estimated Operating Expenses or any reconciliation payments due hereunder, we may discontinue providing some or
all such services hereunder, and you agree we are not liable for damages or losses resulting from such discontinuance. You agree that we
are not responsible or liable for ensuring uninterrupted availability of any utilities or other services provided by or for you under the
Agreement, except to the extent caused by our gross negligence. You are required to use our existing internet network, provided, you
may use your own firewall, subject to our approval (which cannot be unreasonably withheld). You are solely responsible for all costs for
maintaining, installing and testing your own firewall.
d)
Taxes. The fees you owe to us do not include any Taxes. You are responsible for paying all Taxes associated with the Agreement and the
services we provide except for Taxes assessable on our income or employees. Without limiting the foregoing, you agree to be the seller
with respect to the sale of any food or products sold or distributed out of the Licensed Space and as such, you also agree to be
responsible for the payment of any Taxes for such food or products. If you don’t pay your Taxes (or the government alleges you haven’t
done so), we have the right to immediately terminate the Agreement. You are liable for, and must pay before delinquency, Taxes levied
against any personal facility or trade fixtures placed by you in the Kitchen.
4.
Insurance. We shall maintain commercial general liability insurance and property insurance for the Delivery Hub. You agree to maintain,
during the Term: (a) a commercial general liability insurance policy, in accordance with Insurance Services Office Form CG 00 01, on an
occurrence basis, including protection for your operations, completed operations and personal and advertising injury, covering the Kitchen
and insuring use thereof against claims for injuries, death and property damage occurring on or about the Kitchen, with limits no less than two
million dollars per occurrence; (b) workers’ compensation insurance (with statutory limits if applicable) and Employer’s Liability Insurance with
limits no less than one million dollars per occurrence; (c) food borne illness insurance (with industry standard limits); (d) property insurance in
amounts not less than full replacement cost value of your property and providing such form of protection against risk consistent with
prevailing industry standards for property insurance (with no coinsurance penalty provision), covering the personal property (including any
fixtures or equipment) located within the Delivery Hub (policy must also include loss of business income and extra expense for a minimum of
twelve months); (e) business automobile liability insurance for all owned, non-owned and hired vehicles, including loss of property of others in
your care, as well as the loss of use your property and property of others in your care with limits no less than one million dollars per
occurrence and two million dollars general aggregate; and (f) if we approve for you to sell alcohol out of our space (in writing) and you are
legally permitted to do so, Liquor Liability insurance, of at least one million dollars per occurrence and general aggregate limits of at least two
million dollars. You agree to furnish a certificate of insurance evidencing the above policy limits. All liability insurance maintained by you must
(i) name Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers (and its
mortgagee, if applicable) as additional insured under such policy; (ii) be in a form reasonably satisfactory to us, with an insurance carrier
reasonably satisfactory to us; and (iii) be primary insurance (at least as broad as ISO CG 20 01 04 13). Any insurance or self-insurance
maintained by Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers, shall
be excess of your insurance and shall not contribute with it. All such insurance is subject to modification or cancellation only upon ten (10)
days’ written notice to each certificate holder. The issuance of any insurance policy required under the Agreement, or the minimum limits
specified in the Agreement with respect to your insurance coverage, will not be deemed to limit or restrict in any way your liability arising
under or with respect to the Agreement. You hereby grant to Licensor a waiver of any right to subrogation which any of your insurers may
acquire against the Licensor by virtue of the payment of any loss under such insurance. You agree to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Licensor has received a waiver of
subrogation endorsement from the insurer.
5.
Confidentiality. Each party agrees to not use the other party’s Confidential Information except as necessary for the performance of the
Agreement and will not disclose the other party’s Confidential Information to any third party except to those of the receiving party’s
employees and contractors who have a need to know such Confidential Information for the performance of the Agreement, provided that
each such employee or contractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms
set forth in the Agreement. You agree that the fact you have entered into the Agreement and are licensing space from us, and the terms of the
Agreement, constitute our Confidential Information. Each party will employ all reasonable steps to protect the other party’s Confidential
Information from unauthorized use or disclosure, including the steps you take to protect its own Confidential Information. The foregoing
obligations will not restrict the receiving party from disclosing the other party’s Confidential Information: (a) pursuant to the order or
requirement of a court, administrative agency, or other governmental body, provided that the receiving party give reasonable notice to the
disclosing party to contest such order or requirement; and (b) to receiving party’s legal or financial advisors, provided the receiving party is
responsible for ensuring such information remains confidential. The receiving party is liable for any breaches of confidentiality by its
employees, contractors, legal or financial advisors.
3 – v070921Page 122 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
6.
Representations and Warranties. Each party represents and warrants as to itself that (a) it has the right to enter into and perform the
Agreement and that the individual signing the Order Form has the right to bind their respective company, and (b) it will not violate any
Applicable Law or obligations to any third party by entering into and performing under the Agreement. You represent and warrant that you
have all permits and licenses required to prepare and sell food and beverage products out of the Licensed Space (including any permits
required for you to prepare food in the Kitchen).
7.
Disclaimers; Limits of Liability
a)
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (i) WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THE AGREEMENT, AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY, CARE, NON-INFRINGEMENT, PERFORMANCE, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED, AND (ii) THE LICENSED SPACE AND RELATED SERVICES, THE TECHNOLOGY AND RELATED HARDWARE,
AND ANY OTHER GOODS, SERVICES, OR TECHNOLOGY THAT MAY BE PROVIDED BY US OR OUR PARTNERS HEREUNDER ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF LOSS OR DAMAGE TO YOUR FOOD AND BEVERAGE PRODUCTS. YOU AGREE THAT
NEITHER WE, NOR ANY OF OUR AGENTS, HAVE MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED SPACE,
THE DELIVERY HUB OR THE TECHNOLOGY, OR WITH RESPECT TO THEIR SUITABILITY FOR THE CONDUCT OF YOUR BUSINESS, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT.
b)
Limits of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE SHALL NOT, AND OUR AFFILIATES SHALL NOT, BE
LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING
CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE
LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS, COST, DAMAGE OR OTHER LIABILITY THAT RESULTS FROM ANY SCHEDULED OR
UNSCHEDULED DOWNTIME OF THE KITCHEN TECH OR YOUR INABILITY TO ACCESS YOUR KITCHEN. NOTWITHSTANDING ANYTHING TO
THE CONTRARY ELSEWHERE IN THE AGREEMENT, OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT
WILL NOT EXCEED THE MONTHLY LICENSE FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO
THE CLAIM. NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL
ACTIVITY.
8.
Indemnification. You agree, at your sole expense, to indemnify, hold harmless and, at our election, defend Indemnitees from and against any
and all losses, costs and expenses of any kind, including reasonable attorneys’ fees, claim, demand or action, incurred by any Indemnitee
arising from or related to: (a) your business, your food and beverage products or your use of Third Party Vendors; (b) your negligence or willful
misconduct; (c) risks against which you are insured or required to be insured against as specified in the Agreement; (d) acts or omissions of
your employees, contractors or any other of your invitees to the Licensed Space; or (e) a breach or alleged breach of the Agreement by you or
your employees. You agree to not settle or otherwise dispose of any third party claim, demand or action against an Indemnitee without our
prior written approval, which shall not be unreasonably withheld.
9.
Term and Termination
a)
Term. The Agreement will begin as of the Effective Date and remain in effect until the end of the later of the Initial Term, Renewal Term
or Continuing Term. Either party may terminate this Agreement by providing a written notice of non-renewal no later than 60 days prior
(“Notice”) to the end of the applicable Initial Term or Renewal Term. If neither party has provided Notice, at the end of the later of the (i)
Initial Term or (ii) Renewal Term (if any), this Agreement shall continue until either party terminates this Agreement by providing at least
sixty (60) notice ("Continuing Term"). For example, if the last day of the Initial Term is July 17 (and there is no Renewal Term) and you
provide 60 days notice on August 1, then the Continuing Term will continue until (and the Agreement will terminate on) September 30.
b)
Termination. A party may terminate the Agreement in the event of a material breach by the other party, provided, such other party is
provided with written notice of such breach and at least 30 days to cure the breach after receipt of such notice. Notwithstanding the
foregoing, in addition, we may terminate the Agreement (including your right to access the Licensed Space) immediately upon written
notice to you if any of the following occur: (i) you fail to make any payments owed to us and fail to cure within 7 days, (ii) you breach
Sections 1(b) or 5 of this Agreement, (iii) you fail to use the Licensed Space within 15 days of the Access Date or communicate that you do
not intend to use the Licensed Space, (iv) you breach the Agreement and the breach involves an illegal, hazardous or dangerous
condition, including your failure (or an allegation that you have failed) to comply with all Applicable Laws, (v) you file for bankruptcy, have
an administrator appointed over your business or assets, pursue a corporate reorganization, corporate voluntary arrangement, or similar,
you make an assignment for the benefit of creditors, are insolvent, or admit you won’t be able to meet your debts as they mature, or (vi)
if any part of the Licensed Space is taken by the exercise of the power of eminent domain.
c)
Effect of Termination. Upon termination or expiration of this Agreement you may no longer access the Licensed Space. Outstanding
payment obligations and Sections 5-13 will survive any termination or expiration of the Agreement. Without limiting our other rights or
remedies, in the event the Agreement is terminated (except for our breach), you forfeit the Refundable One-Time Fee and you will owe
the License Fees for the remainder of the Term.
10. Force Majeure. A “Force Majeure Event” means an event beyond the reasonable control of a party, which prevents the party from complying
with its obligations under the Agreement, including an act of God (fire, earthquake, flood, drought, epidemic, pandemic, etc.), war or other
hostilities, acts or threats of terrorism, strikes or acts of civil disturbance, utility outages, and shortages of materials or labor. In no event shall
either party be considered in breach of this Agreement to the extent its obligations are prevented or delayed, directly or indirectly, by a Force
Majeure Event, and the period of time for performance shall be extended until such event has ended. Notwithstanding anything to the
4 – v070921Page 123 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
contrary, obligations to pay fees owed hereunder shall not be delayed, waived, canceled, or otherwise affected by a Force Majeure Event,
even if you cannot use the Licensed Space due to the Force Majeure Event.
11. Arbitration. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON
AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each
party agrees that any claim or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration
before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for
arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles,
California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be
entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems
proper in the circumstances, only to the extent permitted by the Agreement and Applicable Law, provided that the arbitrator will not have the
authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses.
Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding
between you and Licensor will not be consolidated with any other arbitration proceeding involving Licensor or any other person or entity.
12. Miscellaneous. Any notice or other communication to Licensor under this Agreement shall be in writing and either delivered to the address in
the Order Form in person (effective when received) or by an overnight commercial delivery service (effective one business day after sending).
You agree that we may use the email address on the Order Form to send you notices under this Agreement (effective on the day sent). You
may not assign, convey, delegate, lease, sublet, sublicense or otherwise transfer in any manner this Agreement, or any of your rights,
remedies or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without our prior written consent,
and any purported assignment or transfer by you in violation of this provision is void. We may assign or otherwise transfer this Agreement,
including any of our rights, remedies or obligations, in whole or in part, at any time. The Agreement will be binding upon each party and its
successors and permitted assigns. We may subcontract any of the services in our sole discretion. The Agreement may only be modified,
supplemented or amended in a writing signed by both parties. No failure or delay by a party in exercising any right, power, or privilege under
the Agreement will operate as a waiver hereunder. The invalidity or unenforceability of any provision of the Agreement will not affect the
validity or enforceability of any other provision of the Agreement, all of which will remain in full force and effect. This Agreement shall be
governed by the laws of the State of California, without regard to its choice of law rules. Subject to the section entitled “Arbitration” above,
the parties agree that any dispute arising from or related to the Agreement must be resolved exclusively in Federal or State courts located in
Los Angeles County, California. The Agreement contains the entire understanding of the parties regarding its subject matter, and supersedes
all prior and related contemporaneous agreements and understandings between the parties. When used herein, the term “including” shall be
deemed to mean “including, without limitation”.
13. Definitions.
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
“Access Date” means the estimated date you will be able to access your Kitchen (your actual first day of access may be pushed back or
moved up due to inspection, construction, cleaning or various other delays).
“Applicable Laws” means applicable federal, state, local, or other laws, rules, regulations, ordinances, or similar, including all applicable
health and safety and employment and labor laws.
“Changes” means any alterations, modifications, changes, or improvements to the Licensed Space made by either you or us.
“CPI Increase” means the increase in the Consumer Price Index (CPI-U, All Urban Consumers, U.S. City Average, 1982/84=100) over the
Base Index. The Base Index is that value published immediately prior to the Access Date.
“Confidential Information” means information or materials that: (a) are disclosed in writing or orally and are either marked or identified
as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (b) the receiving party knows or has reason to know,
by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing,
product and financial information, in any form or format; provided, however, that Confidential Information does not include information
that: (i) is in or enters the public domain through no act or omission of the receiving party; (ii) a party lawfully received from a third party
without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (iii) a party
knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or (iv) a
party independently developed without use of, or access to, any Confidential Information.
“Indemnitees” means Licensor and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers,
shareholders, members, and representatives, and our other space licensees and their employees and contractors.
“Kitchen Tech” means the proprietary technology platform (including all related software, services and hardware) provided by our
partner, which facilitates the Processing Services and enables interaction with Third Party Vendors while in the Licensed Space. Your use
of the Kitchen Tech is subject to the terms of use available at https://www.tryotter.com/documents/legal/us/tou/kl-“Orders” means orders for the delivery of food and beverage products placed by the end users of Third Party Vendors apps, websites or
other means for ordering.
“Permitted Use” means the storing, preparing and packaging of your food and beverage products for delivery to your customers to fulfill
Orders in the ordinary course of your restaurant and/or catering business.
“Taxes” means taxes, levies, duties or other similar government assessments of any nature, including value added, sales and use, or
withholding taxes.
“Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and/or other third
party vendors or service providers that you may elect to use.
l)
5 – v070921Page 124 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
14. Beta Products. We are constantly looking to evolve and create new products and services to make your use of the licensed Kitchen more
efficient. As such, we developed new beta products and services (collectively, “Beta Products”) which you can use in accordance with the
terms below. Orders placed via the new Beta Products shall be included within the definition of Orders, and as such, all other terms in the
Agreement shall apply to your use of these services and these Orders. The following outlines the Beta Products that may be made available.
a) Flipdish Kiosk and Online Ordering. In the Delivery Hub, we may allow the public to access the Delivery Hub and place orders via a kiosk
(“Kiosk”) and/or through an online ordering portal (“Web Platform” together with Kiosk “Digital Platform”). You agree to offer your
merchandise and products for purchase via the Digital Platform. The public may be able to place orders via the Digital Platform for brands
owned and operated by you or also brands owned and operated by us (if you’ve signed an agreement to comanage Future Foods brands).
i) Please note that the Digital Platform services are provided in partnership by Flipdish. To use the Digital Platform, you must
accept and agree to Flipdish’s terms and conditions, which may be accessed when you sign on and access the Digital Platform.
ii) For each Order made through the Digital Platform, in addition to the Processing Fee in the Kitchen Services Agreement or any other
Flipdish specific fees, you agree to pay the additional fees outlined below:
(1) Program Fee of 4% of the Total Order, and
(2) Credit Card Processing Fee of 2.9% of the Total Order plus the applicable sales tax.
iii) You hereby grant us and our affiliates a worldwide, royalty-free, non-exclusive license to use Your IP for the purpose of providing the
Digital Platform services. You will retain ownership of Your IP at all times. “Your IP” means your restaurant names, trademarks, other
identifying indicators, your menu descriptions and pictures, and any marketing assets you provide us to help market your products.
iv) You agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Digital Platform Data
(defined below), except as required to fulfill the food or product order and as otherwise required to perform your obligations and
services under the Agreement. If you become aware of any unauthorized access to Digital Platform Data, you agree to immediately
notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably
requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us
and will be responsible for damages resulting from your failure to comply. You will be responsible for damages resulting from
sharing your login credentials with unauthorized third parties or otherwise permitting unauthorized access to your account. You may
not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the
source code of the Digital Platform; damage, destroy or impede the services provided through the Digital Platform; transmit
injurious code; or bypass or breach any security protection on the Digital Platform. Digital Platform Data shall mean any information
that we provide or make accessible to you through the Digital Platform, including without limitation any personal information.
“Digital Platform Data” shall mean any information that we provide or make accessible to you through the Digital Platform,
including without limitation Personal Information. “Personal Information” means information that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or
household.
v) In using the Digital Platform, you agree to: (i) continuously update your in-store menu, including the price of each item on such
menu; (ii) continuously monitor your menu and store information on the Digital Platform, promptly make updates to reflect the
most up-to-date products, pricing and other information or immediately notify us of any errors or changes in writing; (iii) accept all
food or product orders placed from your then-current menu; (iv) prepare the orders for customer pickup at the designated time; (iv)
process in the order in which they are received; (v) continuously update the pricing, availability, description, or other characteristics
of the food or products; (vi) notify us if you closes earlier than your standard hours of operation or plans to close earlier than your
standard hours of operation; provide the same utensils, napkins, bags and other materials that you would typically provide in a
standard take-out or delivery order; and (vii) on an ongoing basis, review and confirm the transactions, fees and charges on orders
via the Digital Platform, and promptly communicate to us and Flipdish of any inaccuracies.
vi) YOU ACKNOWLEDGE THAT FLIPDISH IS PROVIDING THE DIGITAL PLATFORM SERVICES, INCLUDING THE COLLECTION AND
DISBURSEMENT OF FEES AND PAYMENTS. YOU HEREBY WAIVE, RELEASE AND DISCHARGE FOREVER FULLY AND UNCONDITIONALLY
RELEASE US, AND OUR AFFILIATES, AGENTS, REPRESENTATIVES, SUBSIDIARIES FROM ALL DAMAGES, CLAIMS, CAUSES OF ACTION,
LOSSES, DEMANDS, JUDGEMENTS, ATTORNEYS’ FEES ARISING FROM OR RELATED TO YOUR USE OF A BETA PRODUCT OR ANY
ACTIONS OR INACTIONS OF FLIPDISH OR ANY OTHER THIRD PARTY PROVIDER THAT PROVIDES SERVICES UNDER THE DIGITAL
PLATFORM. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF
SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS
FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
b) Notwithstanding anything to the contrary, we may modify or discontinue the Beta Products at any time, and we can suspend or
terminate your use of the Beta Products at any time with or without notice to you. You agree that we may unilaterally modify the
terms and conditions (including fees owed by you) regarding the use of the Beta Products. In such an event, we will provide you with
at least thirty (30) days notice of any modification. By continuing to use the Beta Products, you agree to such modification.
c) The Beta Products may contain features, functionality or modules that will not be included in the final production version of the Beta
Products, if released, or that will be marketed separately for additional fees. You expressly agree that we do not have an obligation to
ensure the Beta Products function properly or at all. You hereby release Indemnitees for any losses, claims (known or unknown),
expenses, or liability resulting from your use of the Beta Products. Further, you agree to indemnify, defend and hold Indemnitees
harmless for any losses (including, without limitation, losses incurred in connection with any claims) arising from or related to your use of
the Beta Products. This obligation shall survive any termination or expiration of the Agreement. YOUR USE OF THE BETA PRODUCTS IS AT
YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY
6 – v070921Page 125 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID: ARISING OUT OF OR RELATED TO YOUR USE OF THE BETA PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7 – v070921Page 126 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
New Jersey - Belleville
Order Form for Kitchen Services
This Order Form for Kitchen Services (“Order Form”), along with the Kitchen Services Terms and Conditions, available as of the Effective Date at
https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the Order Form upon signature (“Terms and
Conditions”), together form an agreement between the Licensor and Customer identified below (“Kitchen Services Agreement” or “Agreement”).
Capitalized terms not defined in this Order Form shall be as defined in the Terms and Conditions. In this Agreement, “you” means Customer and
“we” or “us” means Licensor.
Licensor Information:
Name:500 Cortlandt Street BEL LLC
, a Delaware limited liability company
Address for Notices: 777 S. Figueroa Street, Floor 41, Los Angeles, California Contact: Limited Liability Company Manager
Email: sales@cloudkitchens.com
Phone: (888) 419-Delivery Hub Address: 500 Cortlandt st, Belleville NJ, Customer/Licensee Information:
Sole Proprietorship
Name: Soul Kitchen
,a
Howard
Drive,
Apt
V,
Bergenfield
NJ, Address for Notices:
Zena
Powell
Contact:
Email: teoteojohnson@outlook.com
Phone:
EIN: Licensed Space:
1 kitchen(s) in the Delivery Hub (“Kitchen(s)”), along with any designated storage racks (subject to separate fees) outside of the Kitchen(s) and
including certain Delivery Hub common areas as designated by us from time to time (e.g., break rooms, etc.). The Kitchen is “as is” and built out in a
similar manner to other kitchens in the Delivery Hub. Any Changes (i) shall be outlined in a separate improvements agreement provided by Licensor
and (ii) must be approved by Licensor and paid for by Customer as further set forth in the Terms and Conditions. You are still responsible for
beginning payment on the License Fee Start Date whether or not your access is delayed because of the Changes. The maximum amps per Kitchen is
up to 60 amps.
Important Dates:
Term: Period from Effective Date until the expiration of the Initial Term, Renewal Term(s) (if any) or any Continuing Term, whichever is later.
Access Date: 2021-09-Effective Date: Date of last signature below
Initial Term:
Customer Fees:
Payment Method:
License Fee:
Processing
Services Fee:
Storage Services
Fee:
Operating
Expenses:
Refundable OneTime Fee:
Setup Fee:
Beta Products
Fees:
months beginning on License Fee Start Date
License Fee Start Date: days after the Access Date, provided your
Operating Expenses and Storage Services Fees begin on the Access Date.
X Credit Card (as primary)
n/a
[__] ACH
[__] EFT
[__]
[__] Credit Card (for backup)
[__] Other [_________
]
$ 3600.per month ($ 3600.per Kitchen), starting on the License Fee Start Date. License Fee will be
increased on each anniversary of the Access Date by the greater of (a) 3% or (b) the CPI Increase (defined in the Agreement).
3% of the Total Order as defined in Section 1(b)(i).
The specific fees vary depending on the number of racks and type of storage you wish to use (freezer, dry, etc) and will be set
out in the Kitchen Rules or communicated to you by email. Parties shall agree in writing (email sufficient) as to the number of
racks and type from time to time.
$ USD 1800.00 Plus electricity
per month ($ per Kitchen), as
Customer’s portion (estimated) for utilities and shared services. The Operating Expenses commence on the Access Date.
$ 7200., due upon the Effective Date. If you fail to pay us the Refundable One-Time Fee on the Effective
Date, we can immediately terminate this Agreement by providing you with email notice. You will not be allowed to access
the Licensed Space if you have not paid the Refundable-One Time Fee. Return of your Refundable One-Time Fee is subject
to Section 3(b).
$ ., due prior to the Access Date. The Setup Fee is a one-time and nonrefundable fee used to cover our
setup costs.
Some Delivery Hubs are equipped with the Digital Platform. If available and you use the Digital Platform you shall pay a
Program Fee of 4% of the Total Order, and a Credit Card Processing Fee of 2.9% of the Total Order as further described in
Section 14 (in addition to the Processing Services Fee). You may terminate your use of (or opt back into) the Digital Platform
by providing three (3) days written notice to Licensor or by checking this box X
Kitchen Tech:
You are required to use the Kitchen Tech in your Kitchen to ensure efficient operations at the Delivery Hub (e.g. so we can provide the Processing
Services). The Kitchen Tech allows you to aggregate your orders from the following online ordering services for no additional fee: UberEats,
DoorDash, Grubhub, and Postmates. Additional integrations (including with a point of sale or direct to consumer website) requires additional fees.
1 – v070921Page 127 DocuSign Envelope ID: 51B8B2F0-7421-485C-9268-A03D85AF6EE
PageID:
Other Terms:
During the first three months of the Initial Term, Customer shall receive a 50%
discount off the License Fee.
We strive to enable your access to the Licensed Space on the access date. You
acknowledge however, that the Licensed Space may not be available on the Access
date due to inspections, construction, cleaning or various other delays. In
such an event, we will notify you of your adjusted access date.
By signing below, each party confirms that it has read and hereby agrees to the terms set forth in this Agreement (including the Terms and
Conditions available as of the Effective Date at https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the
Order Form upon signature). The parties agree that electronic signatures shall have the same effect as originals. If there is any conflict between this
Order Form and the Terms and Conditions, this Order Form shall prevail. The parties have executed this Agreement as of the date of the last
signature below:
Licensor:
Customer:
By: _________________________________________________
Marcel Comtois
Printed Name: ________________________________________
By: _______________________________________________
Zena L. Powell
Printed Name: ______________________________________
General Manager
Title: ________________________________________________
July 30, Date: ________________________________________________
Zena L. Powell General manager
Title: ______________________________________________
July 27, Date: ______________________________________________
2 – v070921Page 128 PageID:
EXHIBIT
DPage 129 PageID: TIMESTAMP_UTC_TIME TIMESTAMP_UTC_DATE TIMESTAMP_LOCAL_TIME
8:27 PM
12:27 AM
10/12/1:57 AM
10/12/9:57 PM
2:24 AM
10/12/10:24 PM
10:41 PM
2:41 AM
10/12/1:53 AM
10/15/9:53 PM
4:42 PM
10/16/12:42 PM
9:11 PM
1:11 AM
10/17/9:24 AM
10/21/5:24 AMPage 130 PageID: TIMESTAMP_LOCAL_DATE PAYOUT_TIME PAYOUT_DATE STORE_ID BUSINESS_ID
10/21/2021 10/11/9:24 AM
10/11/9:24 AM
10/21/2021 10/11/9:24 AM
10/21/2021 10/21/2021 10/11/9:24 AM
10/14/9:24 AM
10/21/2021 10/16/9:24 AM
10/21/2021 10/21/2021 10/16/9:24 AM
10/21/9:24 AM
10/21/2021 947313Page 131 PageID: STORE_NAME
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
TRANSACTION_TYPE
DELIVERY
DELIVERY
ERROR_CHARGE
DELIVERY
DELIVERY
ADJUSTMENT
DELIVERY
PAYOUT
TRANSACTION_ID
1f05224c-8086-4bde-b2ca-945069943ac5cc64c8-6dc3-4019-981c-a1135314bbde
6a4f96d5-270f-4a62-a087-4d98f24fafaf
0464a773-627a-41ff-98ee-e4a428d5cdd6743816-03a0-472c-b70e-984ea9613f178093571Page 132 PageID: DOORDASH_ORDER_ID
69943a5314bbde
5314bbde
f24fafaf
28d5cd5314bbde
a9613fNULL
DESCRIPTION
Order Received Time: 2021-10-Order Received Time: 2021-10-Issue: 1 Fried Fish Dinner missing
Order Received Time: 2021-10-Order Received Time: 2021-10-merchant_payment_adjustment
Order Received Time: 2021-10-NULL
FINAL_ORDER_STATUS
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered - Paid
Delivered
N/A
CURRENCY
USD
USD
USD
USD
USD
USD
USD
USDPage 133 PageID: SUBTOTAL TAX_SUBTOTAL COMMISSION COMMISSION_TAX_AMOUNT
MARKETING_FEES
$0.$0.$43.$2.$12.$53.$3.$15.$0.$0.$16.$0.$0.$0.$0.$0.$0.$16.$1.$4.$17.$1.$5.$0.$0.$16.$0.$0.$0.$0.$0.$12.$66.$4.$16.$140
CREDIT
$32.$40.$0.$12.$13.$16.$41.$0.00Page 134 PageID: DEBIT DOORDASH_TRANSACTION_ID
PAYOUT_ID DRIVE_CHARGE
$0.$0.3068005841 $0.3068564145 $0.$16.3068701096 $0.$0.$0.3068776459 $0.3082582062 $0.$0.3090246444 $0.$0.$0.3093445582 $140.40 NULL
$0.00Page 135 PageID: TAX_REMITTED_BY_DOORDASH_TO_STATE
SUBTOTAL_FOR_TAX
$43.$0.$0.$53.$0.$0.$16.$0.$0.$17.$0.$0.$54.$0.$0.$0.00Page 136 PageID: DOORDASH_FUNDED_SUBTOTAL_DISCOUNT_AMOUNT
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULLPage 137 PageID: MERCHANT_FUNDED_SUBTOTAL_DISCOUNT_AMOUNT
NULL
NULL
NULL
NULL
NULL
NULL
NULL
12.00Page 138 PageID: TIMESTAMP_UTC_TIME TIMESTAMP_UTC_DATE TIMESTAMP_LOCAL_TIME
6:20 PM
10:20 PM
10/21/11:03 PM
10/21/7:03 PM
11:07 PM
10/21/7:07 PM
8:44 PM
12:44 AM
10/22/12:44 AM
10/22/8:44 PM
1:32 AM
10/22/9:32 PM
9:50 PM
1:50 AM
10/22/12:18 AM
10/23/8:18 PM
12:18 AM
10/23/8:18 PM
8:20 PM
12:20 AM
10/23/1:18 AM
10/23/9:18 PM
2:04 AM
10/23/10:04 PM
10:11 PM
2:11 AM
10/23/2:17 AM
10/23/10:17 PM
2:46 AM
10/23/10:46 PM
3:03 AM
10/23/11:03 PM
3:12 AM
10/23/11:12 PM
3:46 AM
10/23/11:46 PM
4:13 AM
10/23/12:13 AM
4:43 AM
10/23/12:43 AM
5:56 AM
10/23/1:56 AM
4:26 PM
10/23/12:26 PM
7:09 PM
10/23/3:09 PM
9:26 PM
10/23/5:26 PM
9:59 PM
10/23/5:59 PM
10:01 PM
10/23/6:01 PM
10:06 PM
10/23/6:06 PM
10:40 PM
10/23/
6:40 PMPage 139 PageID:
5:41 PM
10/24/
1:41 PM
6:06 PM
10/24/
2:06 PM
6:07 PM
10/24/
2:07 PM
8:29 PM
9:18 PM
8:53 AM
10/24/10/24/10/28/
4:29 PM
5:18 PM
4:53 AMPage 140 PageID: TIMESTAMP_LOCAL_DATE PAYOUT_TIME PAYOUT_DATE STORE_ID BUSINESS_ID
10/28/2021 10/21/8:53 AM
10/21/8:53 AM
10/28/2021 10/21/8:53 AM
10/28/2021 10/28/2021 10/21/8:53 AM
10/21/8:53 AM
10/28/2021 10/21/8:53 AM
10/28/2021 10/28/2021 10/21/8:53 AM
10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/28/2021 10/22/8:53 AM
10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/28/2021 10/22/8:53 AM
10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/22/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021 10/23/8:53 AM
10/28/2021
10/23/
8:53 AM
10/28/
947313Page 141 PageID:
10/24/
8:53 AM
10/28/
10/24/
8:53 AM
10/28/
10/24/
8:53 AM
10/28/
10/24/10/24/10/28/
8:53 AM
8:53 AM
8:53 AM
10/28/10/28/10/28/
947313Page 142 PageID: STORE_NAME
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
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The Soul Kitchen (Cortlandt St)
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0a173441-d68f-412e-9b38-5853472256a55925ebe-d474-4394-80f7-3dbb2f0e341b
8c480799-89fe-4ef4-9fcb-4f55d0ece129d-bda9-4cf4-bdc8-6a3af06cd01df8cf-2310-488a-8bd2-a93abb6abf49a3ac3-54df-4500-b40a-d4
85b51cab-946e-445a-a674-be03457c0c31945d7d-27c1-4160-ac08-f84e369d2be61bf2412-de9a-48f7-aae6-94785c8f427b
DOORDASH_ORDER_ID
02a1aea02a1aea756f1b8e
facec8a8eefc5fadb
004864df8cd9ba0c3edfc4b0c3ed6d75bd8bfb4baa
46feaeee
abfad8ae
933a462d
472256a2f0e341b
df06cbb6abe8d9d7d2cf8cefe
457c0c369d2be5c8f427b
d3955056-8745-48d9-9bc4-7248ac5e29aa
ac5e29aa
DESCRIPTION
Order
Issue: 1 Peach
Order
Order
Order
NULL
Order
Order
Order
Order
NULL
Issue: 1 Fried
Order
Order
Order
Order
Order
Order
Order
Order
Order
NULL
NULL
NULL
NULL
NULL
NULL
Order
Received
Time: 2021-17:37:01.Order Pickup
Time: 2021-22:40:10.34000Page 145 PageID:
8c333b1e-b63d-497c-a498-339c39748dec
39748dec
0e7a3a55-fe27-4ef9-83af-3901fc86575d
fc86575d
b2833e0d-15ee-4425-9c67-deef896c327f
896c327f
645de779-4d53-40fb-8c3e-6d508f6e561e
8f6e561e
51759325-4afb-43bd-b55c-10ce41cfcb41cfcb179528705 NULL
Order
Received
Time: 2021-15:25:47.Order Pickup
Time: 2021-17:41:13.Order
Received
Time: 2021-16:55:07.Order Pickup
Time: 2021-18:06:18.Order
Received
Time: 2021-16:19:03.Order Pickup
Time: 2021-18:07:57.Order
Received
Time: 2021-19:55:13.Order Pickup
Time: 2021-20:29:16.NULL
NULLPage 146 PageID: FINAL_ORDER_STATUS
Delivered
Delivered
Delivered
Delivered
Delivered
Cancelled - Paid
Delivered
Delivered
Delivered
Delivered
Cancelled - Paid
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered
Picked Up
Cancelled - Paid
Cancelled - Paid
Cancelled - Paid
Cancelled - Paid
Cancelled - Paid
Cancelled - Paid
CURRENCY SUBTOTAL TAX_SUBTOTAL COMMISSION
2.7.USD
USD
4.USD
2.6.3.12.USD
USD
0.4.USD
0.4.1.3.USD
USD
1.5.USD
2.12.1.7.USD
USD
1.6.USD
9.0.4.USD
14.USD
1.8.USD
0.3.USD
2.9.USD
21.1.6.USD
1.8.USD
0.4.USD
2.11.USD
2.1.USD
1.7.USD
14.0.4.USD
1.8.USD
1.8.USD
1.6.USD
1.7.
Delivered
USD
0Page 152 PageID: DOORDASH_FUNDED_SUBTOTAL_DISCOUNT_AMOUNT
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
3.
4.8Page 153 PageID:
NULL
NULL
NULL
NULL
NULL
NULLPage 154 PageID: MERCHANT_FUNDED_SUBTOTAL_DISCOUNT_AMOUNT
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
NULL
6.
10.
10.
7.7.
9.7.6.
7.2Page 155 PageID:
7.
8.
NULL
NULL
7Page 156 PageID:
Invoice
BILL T O
S o ul Kit ch e n
IT EM
BILL FROM
In v o ice Numb e r
5 0 0 C ORT LA NDT S T REET BEL LLC
Dat e is s ue d
2021 -07-
500 Cort landt St
Belleville, NJ, 071
Due Dat e
2021 -07-
C ur r e n cy
USD
4ad
Q UA NT IT Y
UNIT P RIC E
T OT A L P RIC E
$7,
$7,200.
Refundable One T ime Fee
S ub t o t al
$7,200.
T o t al
$7,200.
Please pay your invoice by visit ing
manager.t ryot t er.com/billing or by using t he following bank
det ails for bank t ransfers (wire or ACH)
QUEST IONS?
If you have any quest ions regarding billing, please email us at
billing@cloudkit chens.com.
Ba nk Na m e
Routing Num ber
Account Num ber
S WIFT Code
WELLS FARGO BANK, N.A.
12100024 4 063019576259854 WFBIUS 6SPage 157 Restaurant Dashboard
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PageID:
Invoices
Invoice #92e
Invoice #92eReports
Download
Order history
Locations
CloudKitchens • Billing period October Integrations
$3,744.Paid
Payments
VISA ****Oct 26,
-$3,744.
Paid
Location
500 CORTLANDT STREET BEL LLC
500 Cortlandt St
Belleville, NJ
Member
Soul Kitchen
Announcements
Pay manually via wire transfer
Order manager
Billing
Support
Settings
11/30/2021, 2:46 AMPage 158 Restaurant Dashboard
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PageID:
Items
License Fee - Base
$3,600.
Reports
Health Permit
$300.
Order history
Operating Expenses (Fixed)
$2,000.
Locations
Integrations
Credits
Expense - Concession (ROE)
Subtotal
-$2,264.
$3,635.
Carry over balance
$0.
Credit Card Processing Fee (3%)
$109.
Total Due
$3,744.
Payments
-$3,744.
Remaining balance
$0.
Please reach out to billing@cloudkitchens.com with any questions.
Announcements
Order manager
Billing
Settings
11/30/2021, 2:46 AMPage 159 PageID:
EXHIBIT
EPage 160 ReportFraud.ftc.gov - Confirmation
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PageID:
FTC Report Number
Consumer Report To The FTC
The FTC cannot resolve individual complaints, but we can provide information about next steps to take. We share your report
with local, state, federal, and foreign law enforcement partners. Your report might be used to investigate cases in a legal proceeding.
Please read our Privacy Policy to learn how we protect your personal information, and when we share it outside the FTC.
About you
Name: ZENA POWELL
Email: TEOTEOJOHNSON@OUTLOOK.COM
Address: 20 Howard Davis Dr APT. V
Phone: 551-275-
City: BERGENFIELD State: New Jersey Zip Code: Country: USA
What happened
ON JULY 22, 2021 I ENTERED I BEGAN A RELATIONSHIP WITH CLOUD KITCHENS VIA A ZOOM SALES CALL FOR ME TO EXPLORE
MY OPTIONS OF OWNING A FOOD SERVICE BUSINESS. THE CALL WAS SET UP WITH GEORGIA MORHBACHER AND ON THE
CALL TWO OTHER REPRESENTATIVES FROM CLOUD WERE PRESENT FROM THE ONBOARDING TEAM. I ALSO HAD MY SON TEO
POWELL, JANICE JENNINGS, AND TEO JOHNSON PRESENT FOR THE ZOOM SALES CALL SO THEY COULD DECIDE AS A FAMILY
IF THEY WOULD BE ASSISTING ME IN THIS BUSINESS VENTURE. ON THE CALL I HAD A LAUNDRY LIST OF QUESTIONS THAT I
WENT OVER WITH GEORGIA INQUIRING ABOUT THE SERVICES AND GETTING TO NITTY-GRITTY OF THE COST MONTHLY TO
ENTER INTO ANY OF THEIR KITCHENS. SHE THEN STATED TO ME IT WOULD BE $5500.00 MONTHLY FOR THE KITCHEN AND I
STATED THEN IT WOULD NOT BE WORTH IT TO ME TO DO THAT FOR A 200 SQUARE FOOT KITCHEN AND WE HAVE NOT EVEN
HIRED STAFF THAT BRICH AND MORTAR COST PER MONTH IS $3700.00 MONTHLY AND SO I WOULD HAVE TO DECLINE THIS
OFFER AND THEN SHE BEGAN TO EXPLAIN THAT THERE ARE A NUMBER OF SERVICES PROVIDED INCLUDED IN THIS COST IT IS
NOT JUST THE MONTHLY COMMERCIAL LEASING PAYMENT BUT NIGHTLY CLEANING OF MY KITCHEN IS INCLUDED, MENU
CREATION AND MARKETING ASSISTANCE, DELIVERY PLATFORM ONBOARDING ASSISTANCE AND MANAGEMENT, WEEKLY
HOOD CLEANING SERVICES, OIL DISPOSAL, AND THE REQUIRED STORAGE FOR ANY RESTAURANT TO OPERATE WITHIN THE
SAFETY REQUIREMENTS ALONG WITH ONSITE SECURITY AND FOOD RUNNERS. THE OTHER REPRESENTATIVES CONFIRMED
THIS AND I WENT INTO ASK DETAIL OF WHAT NIGHTLY CLEANING INCLUDED AND SHE STATED AGAIN OF MY KITCHEN AFTER
THE END OF EACH DAYS BUSINESS CLEANING STAFF WILL COME IN AND CLEAN MY KITCHEN BECAUSE I AM DISABLED I KNEW
I COULD NOT AFFORD TOHIRE STAFF INITIALLY SO IF THIS WAS NOT THE CASE THEN AGAIN I WOULD NOT BE ABLE TO ENTER
INTO THIS CONTRACT AND IF ANYTHING OTHER THEN THIS SHOULD TAKE PLACE IT WOULD BECOME A LEGAL ISSUE FOR ME
BECAUSE I AM INFORMING YOU I AM DIABLED AND THIS WOULD CAUSE BOTH FINANCIAL AND PHYSICAL HARDHSIP HEALTH
WISE. SHE THEN STATED TO ME NO ITS INCLUDED AND THERE ARE NO OTHER ADDITIONAL COST BUT IF I TOOK THE DEAL
NOW SHE WOULD GUARANTEE ME THE RATE OF 50% OFF AND THAT MY EXPENSE WOULD ONLY BE A FLAT FEE OF $3600. PER
MONTH UNTIL JANUARY 2022. AFTER SIGINING ON 7/24/2021 I IMMEDIATELY RECEIVED A BILL FOR $7200 AND BEGAN THE
ONBOARDING PROCESS. WHERE I SHORTLY LEARNED THAT THEY ACTUALLY DID NOTHING FOR ME BUT SEND INSTRUCTIONS
ON WHAT TO DO MYSELF WHICH I ALREADY KNEW FROM RUNNING OTHER BUSINESSES. IT WAS THE FIRST SIGN OF BREACH
AND BAIT AND SWITCH AS TIME WENT ON THEY TOOK THE MENU I SENT THEM FOR UPLAODING MULTIPLE TIMES AND
LAUNCHED MY BRAND PRIOR TO ME APPROVING THE LAUNCH DATE ON DOOR DASH AND I WAS ALREADY RECEIVING
ORDERS WHEN I WAS NOT YET IN POSSESSION OF THE SPACE I PAID TO OBTAIN. I DID NOT TAKE POSSESSION OF THE SPACE
UNTIL SEPTEMBER LATE TO BE EXACT 9/9/2021 WHERE I MET HADIYAH FOR THE FIRST TIME AND WAS NOTIFIED THAT
STORAGE IS A SEPARATE FEE OF 250 PER RACK WHICH IS A SEPARATE FEE OUTSIDE OF THE MONTHLY FEES WHICH IF I AM
ALREADY PAYING OPERATIONAL FEES FOR THE ENTIRE FACILITY SHARED THEN I AM ALREADY PAYING FOR THE SAME
STORAGE SPACE YOU ARE STATING IS SEPARATE FROM THE MONTHLY OPERATIONAL AND LICENSING FEES. I THEN EMAILED
THEM ABOUT THE LAUNCH DATE AND OPERATIONAL COST BILL RECEIVED FOR SEPTEMBER OF $1098.67 AND I WAS NOT IN
THE BUILDING HAD NO EQUIPMENT THERE AT ALL BUT RECEIVED AN INVOICE FOR SEPTEMBER WHICH I STATED THEY WERE
11/30/2021, 5:24 AMPage 161 ReportFraud.ftc.gov - Confirmation
2 of
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PageID: NOT SUPPOSE TO DO.
How it started
Date fraud began:
Amount I was asked for:
Amount I Paid:
10/26/
$12,259.
Payment Used:
How I was contacted:
Debit Card
In Person
Details about the company, business, or individual
Company/Person
Name:
CLOUD KITCHENS
Address Line 1:
777 TOWER 777 FIGUEROA ST
Address Line 2:
SUITE
City:
LOS ANGELES
State:
California
Zip Code:
Country:
USA
Email Address:
GEORGIA.MORHBACHER@CLOUDKITCHENS.COM
Phone:
888-419-Website:
https://cloudkitchens.com
Name of Person You Dealt With:
GEROGIA MORHBACHER
Your Next Steps
If you paid a scammer with a credit or debit card:
• File a dispute (also called a “chargeback”) with your credit or debit card company.
◦ Online: Log onto your credit or debit card company's website and go through the company's dispute process.
◦ By phone: Call the phone number on the back of your card and tell them why you're filing a dispute.
• Follow up with a letter to your credit or debit card company. To protect any rights you may have, follow up in writing by
sending a letter to the address listed for billing disputes or errors. Use our sample letter.
• Save your records. Keep any letters, notes, or emails related to the scam - they could help prove you're entitled to a refund if
the credit or debit card company has any questions.
• Find out your rights at ftc.gov/credit.
11/30/2021, 5:24 AMPage 162 ReportFraud.ftc.gov - Confirmation
3 of
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PageID: Scam Advice:
• Learn more about different scams and how to recover from them at
ftc.gov/scams.
• You also can file a report with your state attorney general.
What Happens Next
• Your report will help us in our efforts to protect all consumers. Thank You!
• We can't resolve your individual report, but we use reports to investigate and bring cases against fraud, scams, and bad
business practices.
• We share your report with our law enforcement partners who also use reports to investigate and bring cases against fraud,
scams, and bad business practices.
• We use reports to spot trends, educate the public, and provide data about what is happening in your community. You can check
out what is going on in your state and metro area by visiting ftc.gov/exploredata .
• Investigations and cases do take time, but when we bring cases, we try to get money back for people. Check out
ftc.gov/refunds to see recent FTC cases that resulted in refunds.
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December 8, Soul Kitchen
20 Howard Drive, Apt V.
Bergenfield, NJ Attn.: Zena Powell
VIA EMAIL - teoteojohnson@outlook.com
Re: Termination of Kitchen Services Agreement
Dear Ms. Powell:
Please be advised that the Kitchen Services Agreement (“Agreement”) between 500 Cortlandt St
BEL LLC, a Delaware limited liability company (“Licensor”), and Soul Kitchen (“Licensee” or “You”),
pertaining to a limited license to use and occupy kitchen space (“Licensed Space”), is terminated
effective immediately.
While You have continuously asserted that Licensor is not allowed to license commercial space,
Licensor can do so and You are subject to the licensing contract you signed. Your refusals to pay for
services do not allow you to use Licensor’s services without payment. Unfortunately, You are in material
breach of the Agreement because of non-payment of Your past due balance of $4,620.23 for fees
through November 2021.1 As You know, You have also rejected Licensor’s prior proposal for payment in
installments. Per Section 9(b)(i) of the Agreement, Licensor is terminating the Agreement, including Your
right to access the Licensed Space, due to non-payment. The Agreement’s first page states that the
Refundable One-Time Fee is subject to Section 3(b). Section 3(b) of the Agreement entitles Licensor to
retain Your Refundable One-Time Fee under these circumstances. Licensor will apply this amount to
Your outstanding balance.
All remaining equipment and property belonging to You is required to be immediately removed.
The equipment and other property needs to be picked up between 9AM-5PM, by no later than
December 17, 2021, otherwise, it will be deemed abandoned. After this date, You will no longer be
allowed access to the facility or the Licensed Space without our express consent. Licensor does not have
space to store Your equipment if You refuse to pick it up. Please contact me immediately to coordinate
the pickup of any additional equipment and other property belonging to You.
As You have stated multiple times that You intend to bring legal action because You do not
believe a company can license the use of property, please be advised that all legal disputes must be
brought in arbitration, as stated in Section 11 of the Agreement.
The foregoing is neither intended nor should it be construed as an exhaustive statement of the
facts and matters at issue. Licensor reserves all of its legal and equitable claims, rights, defenses, and
remedies. Thank You for Your attention to this important matter.
Sincerely,
/s/
Kira Sergacheva
kira.sergacheva@cloudkitchens.com
Operations Manager
Please note that Licensor may assess to You any applicable additional fees, including cleaning fees and fees for any
damages to the Licensed Space.
1
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 1 of 182 PageID: 21
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of New
__________
District
ofJersey
__________
ZENA L. POWELL
Plaintiff(s)
v.
CLOUD KITCHENS INC DBA 500 CORTLANDT ST
BELL LLC & OTTER
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2:21-CV-20456-CCC-ESK
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) CLOUD KITCHENS INC.
777 S FIGUEROA ST.
SUITE 4100
LOS ANGELES, CA, 90017
ATTN: LEGAL DEPARTMENT
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: ZENA L. POWELL
20 HOWARD DRIVE
APT. V
BERGENFIELD, NEW JERSEY, 07621
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
12/10/2021
Signature of Clerk or Deputy Clerk
PDF Page 3
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 2 of 182 PageID: 22
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 2:21-CV-20456-CCC-ESK
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
ZENA L. POWELL
.
’ I personally served the summons on the individual at (place)
on (date)
; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)
on (date)
; or
’ I returned the summons unexecuted because
; or
’ Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
0.00
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
Print
Save As...
Reset
.
PDF Page 4
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 3 of 182 PageID: 23
Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
UNITED STATES DISTRICT COURT
for the
DistrictDistrict
of NewofJersey
__________
__________
________CIVIL__
Division
__________ Division
ZENA L. POWELL
Plaintiff(s)
(Write the full name of each plaintiff who is filing this complaint.
If the names of all the plaintiffs cannot fit in the space above,
please write “see attached” in the space and attach an additional
page with the full list of names.)
-vCLOUD KITCHENS INC.DBA 500 CORTLAND ST
BEL LLC. & OTTER
Defendant(s)
(Write the full name of each defendant who is being sued. If the
names of all the defendants cannot fit in the space above, please
write “see attached” in the space and attach an additional page
with the full list of names.)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.
2:21-CV-20456-CCC-ESK
(to be filled in by the Clerk’s Office)
COMPLAINT AND REQUEST FOR INJUNCTION
I.
The Parties to This Complaint
A.
The Plaintiff(s)
Provide the information below for each plaintiff named in the complaint. Attach additional pages if
needed.
B.
Name
ZENA L POWELL
Street Address
20 HOWARD DRIVE APT. V
City and County
BERGENFIELD & BERGEN
State and Zip Code
NEW JERSEY 07621
Telephone Number
551-275-3771
E-mail Address
TEOTEOJOHNSON@OUTLOOK.COM
The Defendant(s)
Provide the information below for each defendant named in the complaint, whether the defendant is an
individual, a government agency, an organization, or a corporation. For an individual defendant,
include the person's job or title (if known). Attach additional pages if needed.
Page 1 of 6
PDF Page 5
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 4 of 182 PageID: 24
Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
Defendant No. 1
Name
CLOUD KITCHENS
Job or Title (if known)
COMPANY
Street Address
777 S. FIGUEROA ST. SUITE 4100
City and County
LOS ANGELES, LOS ANGELES
State and Zip Code
CALIFORNIA 90017
Telephone Number
301-756-5257
E-mail Address (if known)
SALES@CLOUDKITCHENS.COM
Defendant No. 2
Name
OTTER COMPUTER INC
Job or Title (if known)
COMPANY
Street Address
3350 SCOTT BLVD BLDG 4
City and County
SANTA CLARA
State and Zip Code
CALIFORNIA 954054-3108
Telephone Number
408-735-7358
E-mail Address (if known)
WWW.OTTERUSA.COM
Defendant No. 3
Name
Job or Title (if known)
Street Address
City and County
State and Zip Code
Telephone Number
E-mail Address (if known)
Defendant No. 4
Name
Job or Title (if known)
Street Address
City and County
State and Zip Code
Telephone Number
E-mail Address (if known)
Page 2 of 6
PDF Page 6
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 5 of 182 PageID: 25
Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
II.
Basis for Jurisdiction
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be
heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the
parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties
is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of
another State or nation and the amount at stake is more than $75,000 is a diversity of citizenship case. In a
diversity of citizenship case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal court jurisdiction? (check all that apply)
✔ Federal question
’
’ Diversity of citizenship
Fill out the paragraphs in this section that apply to this case.
A.
If the Basis for Jurisdiction Is a Federal Question
List the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that
are at issue in this case.
FTC ACT SECTION 5(A) UNFAIR OR DECEPTIVE TRADE PRACTICES, NJSA 56:8-2, AND THE
FEDERAL LANHAM ACT TITLE 15 U.S.C 1125(A)
B.
If the Basis for Jurisdiction Is Diversity of Citizenship
1.
The Plaintiff(s)
a.
If the plaintiff is an individual
, is a citizen of the
The plaintiff, (name) ZENA L POWELL
State of (name) NEW JERSEY
b.
.
If the plaintiff is a corporation
The plaintiff, (name)
, is incorporated
under the laws of the State of (name)
,
and has its principal place of business in the State of (name)
.
(If more than one plaintiff is named in the complaint, attach an additional page providing the
same information for each additional plaintiff.)
2.
The Defendant(s)
a.
If the defendant is an individual
, is a citizen of
The defendant, (name)
the State of (name)
(foreign nation)
. Or is a citizen of
.
Page 3 of 6
PDF Page 7
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 6 of 182 PageID: 26
Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
b.
If the defendant is a corporation
The defendant, (name) CLOUD KITCHENS INC.
the laws of the State of (name) CALIFORNIA
, is incorporated under
, and has its
principal place of business in the State of (name) CALIFORNIA
Or is incorporated under the laws of (foreign nation)
,
and has its principal place of business in (name)
.
.
(If more than one defendant is named in the complaint, attach an additional page providing the
same information for each additional defendant.)
3.
The Amount in Controversy
The amount in controversy–the amount the plaintiff claims the defendant owes or the amount at
stake–is more than $75,000, not counting interest and costs of court, because (explain):
I am requesting compensatory, consequential, and nominal damages
III.
Statement of Claim
Write a short and plain statement of the claim. Do not make legal arguments. State as briefly as possible the
facts showing that each plaintiff is entitled to the injunction or other relief sought. State how each defendant
was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff's rights,
including the dates and places of that involvement or conduct. If more than one claim is asserted, number each
claim and write a short and plain statement of each claim in a separate paragraph. Attach additional pages if
needed.
A.
Where did the events giving rise to your claim(s) occur?
IN THE STATE OF NEW JERSEY
B.
What date and approximate time did the events giving rise to your claim(s) occur?
7/27/2021
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Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
C.
What are the facts underlying your claim(s)? (For example: What happened to you? Who did what?
Was anyone else involved? Who else saw what happened?)
The business relationship was formed on deceptive business practices and false statements of services
to be provided and fees being all inclusive by Georgia Morhbacher on behalf of Cloud Kitchens. In my
brief the details of the aforementioned communications resulting in the approved transaction by my son
Teo Powell who funded the business initially from his brokerage account. In addition the company
operates in unsafe practices as there are no twenty four hour facilities managers that are qualified HVAC
Osha certified facilities manager to shut off gas line in the event of an emergency gas leak or water
issues. The promise of nightly general kitchen cleaning (all equipment and floors), weekly hood cleaning
and quarterly deep cleaning, marketing, application assistance, and signage were lies. Also charged
operational fees prior to any equipment being delivered or me taking complete possession of the space.
Charging licensing fees of $3600 monthly in addition to $2000 operational fees and a storage fee of 250
per rack but cannot explain what it is that they are licensing since you cannot license commercial space.
IV.
Irreparable Injury
Explain why monetary damages at a later time would not adequately compensate you for the injuries you
sustained, are sustaining, or will sustain as a result of the events described above, or why such compensation
could not be measured.
The business model they have imposed with the assistance of their partnership with Tryotter.com is one that
gurantees high turn-over of merchants within the building. Not even the franchises that have contracted with them
are satisfied and have left their facilities such as TGIFridays left during the month of November acknowledging
that their fees for licensing were bogus and the additional fees hidden incurred were not what was promised
during the sales pitch. The merchant such as myself can never become profitable because Otter system is used
to control sales flow and since Cloud does not advertise or market on your business as stated in the sales
presentation you wont pickup the foot traffic needed to sustain the monthly cost in which they rely on and they
intentionally donot respond during the onboarding process immediately to take up the time you would have to
withdraw from the contract upon discovering the issues mentioned because that would result in a refund of the
initial deposit. The organization targets a specific group of consumers as well that are less educated in business
but have dream of becoming a food business owner. Merchants are bankrupt or return to prior fields and I
personally expressed my need for the services to be as stated due to disability and needing those services.
V.
Relief
State briefly and precisely what damages or other relief the plaintiff asks the court to order. Do not make legal
arguments. Include any basis for claiming that the wrongs alleged are continuing at the present time. Include
the amounts of any actual damages claimed for the acts alleged and the basis for these amounts. Include any
punitive or exemplary damages claimed, the amounts, and the reasons you claim you are entitled to actual or
punitive money damages.
I am seeking damages of $200,000 which would include the money given to cloud thus far of $12,259.22 the
equipment fees I paid of $4,704.00 and the cost of Food $3,314.00and the additional damages requested in
compensatory, and nominal damages. I am also requesting an investigation into Cloud as they are the same
executives who left Weworx prior to charges being brought against the company they left and formed this one but
also own City Storage systems, LLC an a host of other subsidiaries across the country. The company needs to
have the merchants they lease to speak with investigators to share their experience and the pattern of deceptive
sales tactics will become very transparent as we all had different sales persons. To temporarily bar the licensing
fees until it is determined what it is that the company is licensing you for and to review how many cleints have
been illegally evicted without court paperwork. How many sales were effected by the Otter system being turned
off on them during business for lack of payment of an invoice within the same month? And, How many have been
affected by Otter being down offline or their sales flow experieince with otter directing the sales traffic.
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Pro Se 2 (Rev. 12/16) Complaint and Request for Injunction
VI.
Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my knowledge, information,
and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the
requirements of Rule 11.
A.
For Parties Without an Attorney
I agree to provide the Clerk’s Office with any changes to my address where case–related papers may be
served. I understand that my failure to keep a current address on file with the Clerk’s Office may result
in the dismissal of my case.
Date of signing:
12/10/2021
Signature of Plaintiff
Printed Name of Plaintiff
B.
Zena l. Powell
For Attorneys
Date of signing:
Signature of Attorney
Printed Name of Attorney
Bar Number
Name of Law Firm
Street Address
State and Zip Code
Telephone Number
E-mail Address
Page 6 of 6
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Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 9 of 182 PageID: 29
UNITED STATES DISTRICT COURT
For the
District of New Jersey
ZENA L. POWELL AKA
THE SOUL KITCHEN
Plaintiff(s),
-vESK
CLOUD KITCHENS INC DBA 500
CORTLANDT ST BEL LLC & OTTER
COMPUTER INC.
Defendant(s),
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2:21-CV-20456-CCC)
IN SUPPORT OF COMPLAINT
REQUEST FOR AN INJUNCTION
JURY TRIAL DEMAND
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TABLE OF CONTENTS
Introduction....................... .. ... .. .................... . ......................
Statement of facts........................ . ......................... . ... ............
Georgia Mohrbacher and Zena L. Powell …………... ... ..... ...
Onboarding Team……………………………………………..
Kira Sedgewick and Zena L. Powell………………….... .. ....
Kip Beach and Zena Powell…………………………………
Violations Alleged for Relief............................................
The Soul Kitchen should be Granted Relief
Determining that Georgia Mohrbacher, Kira Sedgewick,
Laura Collections & Billing Specialist, and Kip Beach Regional director
acting in their official capacity for Cloud Kitchens DBA
500 Cortlandt St Bell LLC and Otter Computer Inc. as co-conspirators
with Cloud Kitchens Is in violation of the FTC Act Section 5(a)
Unfair or Deceptive trade Practices, Title 18 U.S.C. §1341
Frauds and Swindles, Title 18 U.S.C. §1038 (b)
False information and Hoaxes, Title 15 U.S.C. §45 (b) Consumer review
Protection, and The Lanham Act under section 43(a)
False or misleading advertising. The State of New Jersey
Real estate License act N.J.S.A. 45:15-16.45
Submission of applicant to the courts; methods of service,
45:15-16.46 Violations by brokers, salespeople; fines, penalties
And The State of New Jersey Consumer Fraud Act
56:8-1 and 56:8-2 An act concerning consumer fraud its
prevention and penalties thereof.
1. Federal Violations Alleged for Relief
Federal Trade Commission Act Section 5(a)…………………………
Unfair and Deceptive Business Practices…………………………….
.................................................
18 U.S.C. §1038 (b) False information and Hoaxes…………………
15 U.S.C. §45 (b) Consumer review Protection……………………...
The Lanham Act under section 43(a)
False or misleading advertising……………………………………….
2. Second New Jersey State Codes Violation Alleged for Relief
The State of New Jersey Real estate License act:
N.J.S.A. 45:15-16.45
Submission of applicant to the courts; methods of service……………
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45:15-16.46 Violations by brokers, salespeople; fines, penalties……..
The State of New Jersey Consumer Fraud Act
N.J.S.A. 56:8-1 and 56:8-2 An act concerning consumer fraud its
prevention and penalties thereof
JERSEY EVICTION LAW
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal;
issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Conclusion and Prayer for Relief ..... . ...... ................................................
EXHIBITS
A. Email Correspondence with Georgia Mohrbacher and onboarding team
B. Email Correspondence and text messages with Kira Sedgewick
and onboarding team
C. Licensing Agreement Signed, KSA Order Form, KSA Terms & Conditions,
Cloud Kitchens Proposal materials, Letter of Termination and request to vacate
space
of Agreement by December 17, 2021
D. Exhibit example of approved licensing agreement by
Securities Exchange Commission
E. Sales Reports from Door Dash merchant portal.
F. FTC consumer fraud complaint
G. Attorney General Complaint for Consumer Fraud
H. Invoices for Cloud Kitchens from July through October.
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INTRODUCTION
The Plaintiff, Zena L. Powell, also referred to herein as “The Soul Kitchen” or
“Plaintiff “ was presented with a sales presentation on Juy 20th, 2021 by Georgia
Mohrbacher A salesperson from Cloud Kitchens herein referred to as “Defendant 1” and
accompanied by two other cloud employees Shyanne Gaston and Sawyer Daly of
Cloud onboarding team via a Zoom meeting that took place at 1:30 pm. The Plaintiff
was then received a contract to sign from Georgia Mohrbacher on July 23rd, 2021 and
had reservations about the services not being listed that were stated verbally during the
sales presentation and submitted questions in regard to those services stated verbally.
(SEE EXHIBIT A) Georgia Mohrbacher a representative of Cloud Kitchens replied
stating that the language is standard because the company services a large number of
clients the contract is standard and provided a material handout stating that the services
discussed in the sales presentation and on the handout are guaranteed and the nightly
general cleaning and weekly hood cleaning of our kitchen workspace is included. The
Defendant(s) assured the Plaintiff verbally during the first meeting and thereafter
verbally that those services will be provided and included as a portion of the fees
incurred monthly for utilization of the space and there are no additional fees incurred
outside of the monthly fees stated. The Plaintiff, Zena L. Powell, then entered into a
Licensing Agreement with Cloud Kitchens Inc. on July 27th, 2021to obtain a commercial
kitchen space in a shared workspace environment for merchants seeking to launch a
Ghost Kitchen restaurant. Cloud Kitchens Inc. is a company that provides two hundred
square foot commercial kitchen space pre-fitted with the required washing sinks, as well
as Hood ventilation system for use by the licensee. Otter is a computer software firm
that works directly as a Third-Party vendor for Cloud Kitchens Delivery hub system for
the restaurant industry across all delivery and pickup platforms. i.e(Door Dash,
Grubhub, Ubereats, etc,.) The company controls the sales flow for each restaurant by
integrating each platform under their proprietary software and provide tablets and a
printer for all platforms to be delivered on one Otter tablet versus multiple tablets for
each delivery platform. The Business relationship between Cloud Kitchens and Otter
computer company under Cloud Kitchens current business model is designed to deliver
high turnover of merchants through lack of sales and increase profitability of Cloud
Kitchens Inc. through such turnover resulting in Cloud becoming a Billion Dollar
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company within a five-year span from 2016 – 2021. The services stated verbally to each
merchant during the sales presentation and advertised on their national commercial are
not delivered as understood by the consumer and therefore cause undue hardship to
consumers seeking economic opportunity in ownership but lacking in depth business
knowledge in launching a food brand, menu, marketing, and administrative applications
required to launch a restaurant. Otter assists in the current business model by driving
the sales flow and taking merchants on and off of delivery platforms without their
knowledge. The current turnover rate is what makes the business model thrive not the
actual success of merchants expanding to other locations but rotating merchants in and
out of current spaces through out the year retaining any money owed from the $7200.00
deposit required to obtain the kitchen and charging operational fees the first hidden fee
prior to the merchant taking possession of the space but using the access date of the
contract as the basis for this action not the actual date of possession and adjusting the
access date to the date of actual possession. The next hidden fee is the fee charged for
storage space which is stated clearly to be included in monthly cost which is outlined in
Cloud Kitchens Proposal SEE EXHIBIT (C).
The Plaintiff, Zena L. Powell, has sustained physical and financial injury due to
the actions of Cloud Kitchens Inc. and Otter computer company Inc. herein referred to
as “Defendant(s)” by utilizing deceptive business practices, providing misleading
information, and omission of information directly caused physical injury to a disabled
person, the Plaintiff by not providing the general nightly cleaning services in a restaurant
environment and financial injury by omitting the additional fees charged monthly. The
Plaintiff has paid a total of $12, 259.22 to the Defendant(s) since September 10th, 2021
through to present and is currently in arrears for $4,620.23 for November and $4,500.00
for December. The Plaintiff has not paid the invoices due to lack of revenue and being
sick from having to assume duties that were stated would be included in the agreement.
In this Affidavit in support of the complaint Plaintiff, Zena L. Powell, seeks relief
determining that the Defendant(s), Cloud Kitchens Inc. and Otter Computer Company
Inc. are liable under Federal and State consumer laws of protection. If the relief sought
is granted the only issue for trial would be the Plaintiff’s request for an official federal
inquiry, size of the damages awarded, and any other relief the Judge deems necessary.
STATEMENT OF FACTS
GEORGIA MOHRBACHER
On July 19th, 2021 the Plaintiff, Zena L. Powell scheduled a sales presentation in a
Zoom meeting with Georgia Mohrbacher of Cloud Kitchens Inc. for 7-20-2021 at 1:30
pm. On the Zoom meeting call we went over what the organization is offering and how it
is offered and the Plaintiff inquired about the details of the fees incurred monthly asking
what they include and stated its more then a brick and mortar space monthly for lease
so it would not be worth it to venture in with this type of operation and the Defendant(s)
stated that there is a monthly promotion they are running that would still include all the
services presented of general nightly cleaning, weekly hood cleaning and quarterly
deep cleaning, secured premises, storage, and all the requirements to operate a food
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establishment as stated in the materials and verbally. That there is a cleaning service
provided for the cleaning of your kitchens and common areas, and that with all the
services including limited marketing locally and the availability of signage in front of the
store to increase brand visibility. The Defendants sales representative stated that with
the monthly promotion I could take advantage of the offer for the next 4 months based
at $3600.00 monthly and then the normal payments of $5500.00 monthly would be
required to maintain the contract. The Plaintiff then stated to Defendant(s) Georgia
Mohrbacher that The Plaintiff is disabled and the at the money was coming from the
Plaintiff’s Sons brokerage account and if the services stated were in any way not what
was presented there would be a litigation because the Plaintiff would then be placed in
a compromising position physically and financially and would not be able to make the
business successful. The Defendant(s) assured the Plaintiff both overt the phone and
through email that all the services stated were inclusive of the monthly recurring fees
and that if the Plaintiff has any issues or question’s please feel free to reach out and
Georgia Mohrbacher would be happy to answer them at any point after signing the
agreement. The Defendant state during the presentation there were only 2 kitchens left
thus the reason for her diligent follow-up to complete the contract and the Plaintiff
thanked her for ensuring she received one of the last kitchens available. The
Defendant(s) stated that the onboarding team will be reaching out for the next steps in
moving forward with the process and initially stated that if there were any issues with
the launch date it can be adjusted down the line which is the official access date on the
contract. SEE EXHIBIT (C) The Plaintiff, Zena L. Powell completed payment of the
security deposit on July 29th, 2021 but the actual first hidden fee was the $216.00
surcharge for payment through the online Otter system that is provided to make your
payments and manage your account on including your restaurant accounts.
ONBOARDING TEAM
The next steps the Plaintiff received an email welcoming the Zena L. Powell to Cloud
Kitchens and introducing the onboarding team of Jordan Palacios for Kitchen planning,
and Shyanne Gaston for setting up the Delivery platforms and integration with the
Defendant(s) Kitchen Technology Cloud utilizes which is Otter computer software. In
addition to a reminder of the key date of Access to the Kitchen which should have been
September 1st, 2021and an introduction to the facilities Manager Kira Sedgewick via
email. On August 31st, 2021 Zena L. Powell, The Plaintiff emailed Kira and copied
Georgia Mohrbacher requesting the launch date be pushed back as stated prior to the
initial signing and after the signing of the agreement and the response was that the
launch date could not be pushed back and stated that if there was an issue of payment
they will push the billing back to two weeks to September 15th, 2021 but there is nothing
that can be done to change the launch date after escalating the matter. An invoice was
received for operating fees on September 5th, 2021 and no keys or possession of the
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had taken place. The second hidden fee was the operating expenses not expressed
during the sales presentation when asked were there any additional cost outside of the
deposit and what would be paid in October as the first month of billing and Georgia
Mohrbacher replied no to the question posed by the Plaintiff. The Plaintiff, after
expressing dissatisfaction with the omission of the billing; sent an email replying to the
Defendant(s) expressing the fees not being communicated prior to signing the
agreement even when asked specifically by the Plaintiff in the initial sales call. `The
invoice for operational expenses was paid and on September 10th, 2021 in the amount
of $1098.67. The Plaintiff then made arrangements with Kira Sedgewick to pick up the
keys for the kitchen on September 15th, 2021 and upon arrival met with Hadiya the
facilities supervisor. Hadiyah was asked to show The Plaintiff around the facility and
then informed Plaintiff of the facility rules, and the location of storage dry and cold.
Hadiyah then informed The Plaintiff of the facility fees for storage monthly which was
the third hidden fee of $250.00 per rack which is stated to be included in the monthly
cost SEE EXHIBIT (C) (Cloud Kitchen Proposal Materials)
During this time frame the onboarding members and the sales person were promoted
and the menu planning and menu submitted originally changed to Momoh Pujeh as of
August 6th, from Shyanne Gaston and Momoh Pujeh was the new point of contact in
which the menu and brand was submitted for upload both on the Google link they
provided originally for the menu upload and directly via email delivered to Momoh Pujeh
by August 13th, 2021 a total of 6 submission 3 via email and 3 through the online google
upload link they provided originally. The menu was uploaded and launched the Brand
on September 15, 2021 in spite of the emails and everyone being copied on the email
trail and requesting the launch date be changed via email. The false launch prompted
calls for orders coming through and initially ruined the Brand launch sales numbers. The
Soul Kitchen brand was not officially opened until after the Health Department Approved
the application for a local food business. The approval did not take place until October
after the last application submission on September 27th, 2021 to the City of Belleville.
The menu was also finalized on the 27th of September with Shyanne Gaston and the
Delivery date of the Kitchen Equipment had already taken place and was confirmed
prior with Kira Sedgewick for September 16th, 2021. There were many corrections I
made during this time to the menu myself and had to fix on all platforms due to the
incompetent communication and lack of attention to detail by the onboarding specialist
which had changed hands multiple times from Shyanne Gaston to Momoh Pujeh to
Alyssa Parbhoo none of whom actually picked up the phone to call me and be proactive
in an industry where it is required as all deadlines are time sensitive to launch dates. It
was impossible to get a direct number for any administrators that were assigned to
assist you in your launch for timely responses regarding your brand launch and upon
responding would not have the correct details as submitted for launching the brand The
Soul Kitchen.
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KIRA SEDGEWICK
The Plaintiff , Zena L. Powell upon the introduction via email to Kira Sedgewick did not
meet the facilities manager until September 16th, 2021 during which time the equipment
for the kitchen the Plaintiff was renting was delivered to the facility by Superior
Commercial Kitchens, Inc. after delivery the Plaintiff worked with Kira Sedgewick to
complete the health Department application as it was returned twice as being incorrect
initially, and the second submission needed to be completed a third time on a new
application for clarity and under municipal regulation all applications must be originals
completed in blue or black ink and no notes or crossing out. In compliance with what the
Health department requested the Plaintiff completed a third application submitted and
accepted on September 27th, 2021 via Kira Sedgewick. The approval was complete by
October 8th, 2021 which was the first day of business for The Soul Kitchen.
The invoice for October which should have been the first payment was received by the
Plaintiff on October 10th, 2021 in the amount of $3,635.49 and did not have any sales as
of yet on the delivery hub provided by otter due to the false launch of the brand and
customers ordering when the kitchen was not yet open. The week of October 11th
through the 17th there was a total sale’s on otter under Door Dash of $140.00 and upon
observing the lack of sales on the Otter system the Plaintiff took matters into their own
hands and contacted the delivery platforms to received tablets directly so they can
increase the sales and control advertising campaigns directly from the merchant portal
for the Delivery platform directly like Door Dash and Uber eats. The Plaintiff received
the Door Dash tablet first on October 25th, 2021 and immediately returned the Otter
tablet and printer to the runner for Kira Sedgewick and upon the return of the tablet was
contacted by Kira Sedgewick stating that the Delivery Hub Kitchen Technology must be
used and that it is apart of my contract that I signed after being told via email that
merchants can opt out at anytime as stated by the Defendant(s) sales representative
Georgia Mohrbacher it was just an option merchants are not bound to use the Kitchen
Tech but it is advised for the merchants to use it instead of having multiple tablets for
various delivery platforms and makes it easier for the runners to pickup orders and
know who is arriving and what is still being prepared for delivery. SEE EXHIBIT (B) At
this time the Plaintiff began to inquire as to what the licensing fees were for and
requested an itemization prior to the October payment as the space in front of the
building for advertising brand awareness and informing consumers the facility is no
longer a kidney clinic but a food complex hosting ghost kitchen brands that sell food to
consumers. After the initial email to Kira Sedgewick about the licensing fees and the
services not being provided such as the nightly general cleaning of the kitchen and
coming to the realization that the general kitchen cleaning discussed was not what was
being done but the cleaning staff comes in and cleans the floor by sweeping, mopping
each kitchen with the same un-sanitized water was the extent of cleaning merchants
kitchens each night and that the general cleaning of the equipment was not ever going
to be done by them as stated originally it posed a problem immediately and was
addressed in multiple emails, text, and phone calls directly to Kira Sedgewick and then
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directly corporate via their sales number online and reaching a senior level executive in
the California office by the name of Ramiro Garcia on October 14th, 2021 regarding the
fees thus far not mentioned in the sales presentation and regarding the licensing fee
itself and what is was they are licensing because in the state of New Jersey Licensing
agreements that are for commercial space have advertising space attached to that for
the rate of which Cloud Kitchens Inc. was charging and it was stated that space for your
restaurant name would be located in the front of the building to promote the brand
awareness and the facility. Instead of our names Cloud Kitchens also has a website for
the merchants called Belleville Bites as an additional option for pickup orders where
they place you on their Flipdish Kiosk located in the front of the Building lobby for
customers to order and they must order from the Bellvillebites.com website where Cloud
receives an additional fee in the form of your sales percentage ranging from 4% to 9%
but not the 3% originally stated in the contract agreement. The Bellvillebites.com
website is what they promote for all the merchant stores on that platform. The Plaintiff
initially desired to be on this platform but was again dissatisfied with the incompetent roll
out of The Soul Kitchen brand after seeing it on the platform as of October 25th, 2021
and the pricing being wrong and everything from image on the screen the Plaintiff sent
an email asking to be removed from the Flipdish platform on November 18th, 2021 to
Kira Sedgwick which was hostile since The Plaintiff had also sent a message to Otter as
of October 25th, 2021 rescinding any permissions to my delivery platforms and
requesting to opt out of the integration of the platforms into Otter system. The Plaintiff
then received email from Kira Sedgewick regarding returning the Otter tablet expressing
we must use the tablet system and the Plaintiff stated they would not be using the
system as they get no sales on the system and therefore will remain using tablets and
printer provided directly by the delivery hubs.
As of December 2nd, 2021 There was an incident where there was a gas leak and the
facility had to close. When the facility reopened the next day and I was present the
certified electrician who was looking at the heating system with the contractor hired by
cloud stated that the heating system was piped wrong that the smell the merchants had
encountered all the time there was actually gas escaping from one portion of the pipe
that was not light during the initiation of the heating system being turned on. When Kira
Sedgewick was asked if the individual contracted was licensed and if so can she
provide a card to the Plaintiff she ignored the request and stated the individual was
licensed. Just prior to the week of the gas leak during the month of November the
facility had to close due to no water. None of these revenue days were deducted from
the merchants for loss of revenue beyond their control based on Cloud Kitchens being
liable for the maintenance of the commercial facility. Furthermore, the promise a secure
environment is null and void when in fact the facility side entrance is always open prior
to 10:30pm in the evening and anyone can walk into the facility, with only 5 days of
security footage at a time to prevent Cloud Kitchens Inc. from incriminating themselves
with violations of both Federal and State laws which would be reflected in the security
footage if kept longer than 5 days. The current facilities manager Kira Sedgewick was
never there up until Hadiya the supervisor left the company as of December and is
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never able to be reach during these emergencies there is no one in the building certified
to shut off the main gas line or water main to the building. There is no cleaning staff
during the day only the staff that shows up during the evening to sweep and mop the
floors for each kitchen and nothing else. Kira is not OSHA or HVAC certified and the
regional director whom is Kip Beach is managing other facilities much further away
making it impossible for him to respond to any emergencies immediately.
KIP BEACH
The Plaintiff spoke with Kip Beach as of December 14th, 2021 in regards to the current
situation and informed him of all the issues with this deal and the current arrears and
what would be a feasible solution for both parties to amicably walk away. And The
Plaintiff stated clearly in short of getting all the money paid directly to Cloud Kitchens
Inc. returned this would be litigated for the fraudulent misrepresentation of the services
provided and omissions of fees assessed after signing the agreement which was
implicitly asked prior to signing and had a direct impact on the client by not providing the
services in totality stated within the presentation, Cloud Kitchen Proposal, and Terms
and Conditions of the KSA order form. The Plaintiff explained that each employee in
executive roles claims they do not know what the sales representative has stated but all
the merchants after discussing the issue were told the same things during their sales
presentation and by different salespeople at different times and have no connection with
each other prior to launching a business within the Cloud Kitchens Facility. Kip Beach
then stated he would take the information back to the higher ups and see if he could get
the transaction approved for us to both walk away peacably and then I received the
email today at 1:13 pm with the termination letter attached for me to be out as of
tomorrow December 17th, 2021 between 9am – 5pm as stated SEE EXHIBIT (C).
The aforementioned was and is the result the Plaintiff stated would occur if the
services stated were not in place from the very beginning of the agreement due to the
Plaintiff being disabled and stated to cloud that they were in breach in October and
throughout November from the emails between Georgia Mohrbacher through to the
emails with Kira Sedgewick and requesting itemization of charges and what the money
paid monthly is utilized for by Cloud Kitchens Inc. when each kitchen is only 200 Square
feet with the exception of Bare Burger Kitchen who has two kitchens converted to one
and is also set to leave by January of 2022 due to the hidden fees and lack of services
first provided in the sale presentation but did not want to do so prior to their contract end
date to avoid litigation per senior level management that was there in October when I
started and began inquiring to other merchants as to what their experience was so far
and what the sales environment looks like since they have opened did they find
themselves profitable and were they happy with the services not being provided
originally stated in the sales presentation and the answer was the same from kitchen 1
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Beyond hummus, 2 Smoking of Meats, now 3 Earthly Spice Kati Roll Express, 5 The
nugget Spot, 17 Tiam, 20 Fire Ass Thai, 21 Mama Cecily’s Asian Cuisine, 22 Tamago
Poke, now 23 Blake & Kylies Creole Kitchen. The other 3 merchants left are dealing
with it until their contracts have expired Kitchen 6 Cutters Smokery, Kitchen 10 Baba
Burger, Kitchen 9 Panera, and Kitchen 11 Top Taste Jamaican 2 is an extension of their
brick-and-mortar locations but still not happy with the deceptive practices, and 12 a new
Peruvian kitchen also dissatisfied with the services not being provided as promised in
the sales presentation. The other merchants have stated all if they could leave and get
their money back and go elsewhere without being sued for the remainder of the contract
and losing their money vested altogether, they would but once you have signed the
contract you do not find out about what is not being done until you launch your
restaurant and are already locked in to the agreement. By then you have been charged
as we all were for the period we have not yet occupied the kitchen or launched and not
as stated during the sales pitch and solicitation to sign all under pressure as they state
to you there are only 2 kitchens left the others are all taken so you must grab it if you
want it immediately which in turn is a complete lie as they rotate out the less educated
business owners who do not know how to market or grow their business through
advertising and marketing campaigns. The other vendors are not making any profit and
between the fees charged by Cloud’s third-party vendors that were originally stated to
be partners that provided the services stated in the sales presentation and the fees
were all inclusive of those services that were charged monthly to the merchant under
the current licensing agreement.
VIOLATIONS ALLEGED FOR RELIEF
FIRST VIOLATIONS
Federal Trade Commision Act Section 5(a) Unfair and Deceptive
Business Practices ARTICLE 2 U.C.C. §2-601 Buyer’s Rights on Improper
Delivery, ARTICLE 2 U.C.C. §2-609 Right to Adequate Assurance of
Performance, 18 U.S §1038 (b) False information and Hoaxes, 15 U.S.C. §45
(b) Consumer Review Protection, The Lanham Act under section 43(a)
False or misleading advertising
Plaintiff re-alleges and repleads all of the allegations in the Introduction and
Statement of Facts of this Brief and incorporate them by reference. The Plaintiff was
deceived into signing the contract through the omission of the information specific
verbal and written inquiries were discussed with regards to any additional fees, start
date of monthly fees, services provided as set forth in the Terms and Conditions of the
KSA and Cloud Kitchens Proposal submitted by Georgia Mohrbacher resulting in health
and financial hardship causing undue injury to the consumer. In accordance with the
Federal Trade Commission Act Section 5(a) Unfair practices are where an act or
practice (1) causes or is likely to cause substantial injury to the consumer, (2) cannot be
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reasonably avoided by consumers, and (3) is not outweighed by countervailing benefits
to the consumer or competitors and Deceptive practices are where (1) a representation,
omission, or practice misleads
or is likely to mislead the consumer (2) a consumer’s interpretation of the
representation, omission, or practice is considered reasonable under the circumstances;
and (3) the misleading representation, omission, or practice is material. Defendant(s)
failure to clearly inform customers of contract provisions that permit a change in the
terms and conditions of an agreement. Failure to Inform consumers in a clear and timely
manner about any fees, penalties, or other charges (including charges for any forceplaced products) that have been imposed, and the reasons for their imposition. Failed to
tailor advertisements, promotional materials, disclosures and scripts to take account of
the sophistication and experience of the target audience. Made claims, representations
or statements that mislead members of the target audience about the cost, value,
availability, cost savings, benefits, or terms of the product or service.
The aforementioned would be confirmed during discovery and deposition testimony
by former and present merchants of Cloud kitchens Inc. as all merchant’s cannot be
untruthful about the events that lead them into the agreement and formerly do not know
each other. In evaluating whether a representation, omission or practice is deceptive,
the Agencies will look at the entire advertisement, transaction, or course of dealing to
determine how a reasonable consumer would respond. Written disclosures may be
insufficient to correct a misleading statement or representation, particularly where the
consumer is directed away from qualifying limitations in the text or is counseled that
reading the disclosures is unnecessary. Likewise, oral disclosures or fine print may be
insufficient to cure a misleading headline or prominent written representation. SEE
EXHIBIT (A) emails between salesperson Georgia Mohrbacher and the Plaintiff Zena L.
Powell discussing the language of the contract and the Georgia Mohrbacher stirring me
away from my understanding of the contract and upon telephone contact stating that the
language is standard and to sign the agreement as it had just become the last kitchen
left since our discussions. That as the representative she would forward me the
materials providing what services were included in the contract upon signing and that
they have never just put any merchant out although it was one of my concerns during
the telephone conversation stating that they could just terminate the use of the space at
will for any reason without notice to the licensee. Georgia Mohrbacher stated that has
never happened it was just standard contract the company used in place of a leasehold
agreement as it was less binding and this conversation took place on July 24th, 2021
both telephonically and over the email.
Under Section 43(a) of the Lanham Act, a claim can be made against a defendant
for false or misleading advertising. For a claim against a defendant for false advertising,
the following elements are met and the plaintiff must show: (1) defendant made false or
misleading statements as to his own products (or another’s); (2) actual deception, or at
least a tendency to deceive a substantial portion of the intended audience; (3) deception
is material in that it is likely to influence purchasing decisions; (4) the advertised goods
travel in interstate commerce; and (5) a likelihood of injury to plaintiff. However, the
plaintiff does not have to prove actual injury.
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In 1971 Hastings Law Journal published Volume 22 issue 5 “A Private Right of
Action under the Federal Trade Commission Act” emphasizing the limited protections of
the act for individual consumers since its inception in 1926. In 1938Wheeler-Lea
Amendment changed the scope of the framework of the act providing for consumer
protections but still there was no uniform law of unfair competition and deceptive trade
practices to allow individual consumers to bring an action for private relief into federal
courts. At the time the article was published the occurrence of consumer fraud trends
had increased and were growing in particular praying on the poor and financially
unsophisticated consumer. Since that time a number of laws under federal code both
United States Code and Uniform Commercial Code have been implemented providing
for such rights to the individual consumer. Within this brief the measures by which
misrepresentation must be proven are clearly outlined in the email communications and
the advertising materials provided by the Defendant(s) which are as follows:
1.
2.
3.
4.
5.
6.
A representation was made
The Claim was false
The claim was known to be false
The Plaintiff relied on this information to make an informed consumer decision
The representation was made with the intent of influencing the Plaintiff
The Plaintiff suffered a material loss
The aforementioned is for Fraudulent misrepresentation, but I am not limiting the
scope of liability of the Defendant(s) to the aforementioned factors, as negligent
misrepresentation, or innocent misrepresentation has caused a material breach in the
licensing agreement and undue financial and physical injury to the Plaintiff. As
previously stated earlier within the brief the Plaintiff informed the salesperson Georgia
Mohrbacher of their current disabilities and make specific inquiries as to what a general
cleaning is during the Sales meeting of July 20th, 2021. The statement made by the
salesperson Georgia Mohrbacher was that a total cleaning of your entire kitchen is done
each night and that all you have to do is tend to your immediate kitchen cooking
equipment and service wares if any. “ Frederico, 507 F.3d at 200” Schechter v. Hyundai
Motor Am., Civil Action No.: 18-13634 (FLW), 11 (D.N.J. Jul. 29, 2019)
The Breach occurred in connection with the omission regarding the prorated
operating fees for September 2021. SEE EXHIBIT(H) INVOICES In addition The
Plaintiff’s Buyer rights for improper delivery of services were violated upon the
preceding actions stated within this brief. the relief sought within this brief will be shown
for such entitlement based on the facts " Fowler v. UPMC Shadyside, 578 F.3d 203, 211
(3d Cir. 2009). The omission based claims The Plaintiff is not required to plead issues
that were or may have been concealed by the Defendants. “An ascertainable loss under
the NJCFA is one that is 'quantifiable or measurable,' not 'hypothetical or illusory.'" Id. at
185” Schechter v. Hyundai Motor Am., Civil Action No.: 18-13634 (FLW), 16 (D.N.J. Jul.
29, 2019)
The Plaintiff has Ascertainable loss as set forth in N.J.S.A. 56:8-19, which authorizes a
statutory remedy for "[a]ny person who suffers any ascertainable loss of moneys or
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property, real or personal, as a result of the use or employment by another person of
any method, act, or practice declared unlawful under this act." D'Agostino v. Maldonado,
216 N.J. 168, 184-85 (2013). The protections of the Consumer Review Protection act
and the 14th Amendment affording me equal and equitable protections under the law of
the United States constitution have been violated and when reported to the agencies
that are implemented to protect consumers from these acts alleged in this brief and/or
actions and enforce the aforementioned laws the response is negligent, and no actions
are taken to protect the people in which the Federal Agencies serve. The instructions
are to take up your own civil action in court against the offender as an individual
consumer placing the Burden on the Judicial branch of government to remedy the
unlawful action.
With respect to the Uniform Commercial Code Laws violated section 2-601 Buyer
Rights on Improper Delivery and section 2-609 Right to Adequate Assurance of
Performance the Plaintiff re-alleges the violations affirmed in the aforementioned and
re-alleges the same factual violations for this section of Uniform Commercial Code
violations. In addition to Title 15 of the United States code section 45 (b) and the
Lanham Act section 43 (a) identify the violations mentioned in preceding sections and
are enforced by the case law quoted within this brief. The BPL formula for proving
Breach and the 6-point test of Intent constitute Consumer Fraud under the first alleged
violation of the FTC Act section 5 (a). There must be a representation, omission, or
practice that misleads or is likely to mislead the consumer. An act or practice may be
found to be deceptive if there is a representation, omission, or practice that misleads or
is likely to mislead the consumer. Deception is not limited to situations in which a
consumer has already been misled. Instead, an act or practice may be found to be
deceptive if it is likely to mislead consumers. A representation may be in the form of
express or implied claims or promises and may be written or oral. Omission of
information may be deceptive if disclosure of the omitted information is necessary to
prevent a consumer from being misled. In determining whether an individual statement,
representation, or omission is misleading, the statement, representation, or omission
will not be evaluated in isolation. The Agencies will evaluate it in the context of the
entire advertisement, transaction, or course of dealing to determine whether it
constitutes deception. Acts or practices that have the potential to be deceptive include:
making misleading cost or price claims; using bait-and-switch techniques; offering to
provide a product or service that is not in fact available; omitting material limitations or
conditions from an offer; selling a product unfit for the purposes for which it is sold; and
failing to provide promised services. The representation, omission, or practice must be
material. A representation, omission, or practice is material if it is likely to affect a
consumer’s decision regarding a product or service. In general, information about costs,
benefits, or restrictions on the use or availability of a product or service is material.
When express claims are made with respect to a financial product or service, the claims
will be presumed to be material. Similarly, the materiality of an implied claim will be
presumed when it is demonstrated that the institution intended that the consumer draw
certain conclusions based upon the claim. Claims made with the knowledge that they
are false will also be presumed to be material.
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Assessing whether an act or practice is unfair; An act or practice is unfair where
it (1) causes or is likely to cause substantial injury to consumers, (2) cannot be
reasonably avoided by consumers, and (3) is not outweighed by countervailing benefits
to consumers or to competition. The act or practice must cause or be likely to cause
substantial injury to consumers. To be unfair, an act or practice must cause or be likely
to cause substantial injury to consumers. Substantial injury usually involves monetary
harm. An act or practice that causes a small amount of harm to a large number of
people may be deemed to cause substantial injury. An injury may be substantial if it
raises a significant risk of concrete harm. Trivial or merely speculative harms are
typically insufficient for a finding of substantial injury. Emotional impact and other more
subjective types of harm will not ordinarily make a practice unfair.
New Jersey Statute Violations
N.J.S.A. 45:15-16.45 Submission of applicant to the courts; methods of service
45:15-16.46 Violations by brokers, salespeople; fines, penalties N.J.S.A. 56:8-1 &
56:8-2 An act concerning consumer fraud its prevention and penalties thereof
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Plaintiff would like to reiterate the legal arguments in the aforementioned
Sections and have listed the cited New Jersey State statutes in alignment with all the
First
Violations Alleged for Relief.
To obtain the benefit of a license agreement, the property owner must ensure
that its agreement with the prospective user of the premises is indeed a license and not
a lease. This is not necessarily an easy task to accomplish. Merely calling the
agreement a “license” will not make it so. Whether an agreement is held to be a license
and not a lease will depend on the presence or absence in the agreement of the three
essential characteristics of a real estate license: 1) a clause allowing the licensor to
revoke “at will”; 2) the retention by the licensor of absolute control over the premises;
and 3) the licensor’s supplying to the licensee all of the essential services required for
the licensee’s permitted use of the premises. The Third essential characteristic was not
met in this agreement and is maintained by the merchants in cleaning their own
kitchens, purchasing their own janitorial supplies for such use and use of bathrooms
shared in the work space, as well as, developing their own marketing and menus, hood
extraction weekly is not done, no security on the premises and the facility is not secure
during prime operating hours, protections against theft in the shared work space, and
are non-compliant with certified OSHA and HVAC facilities manager available 24 hours
for immediate emergencies.
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The Plaintiff reaffirms the violations constituting Consumer Fraud under the New
Jersey State Annotated Laws
N.J.S.A. 45:15-16.45 Submission of applicant to the courts; methods of service
a. For purposes of this act, an applicant for registration submitted to the
commission shall be deemed as submission, by the applicant, to the jurisdiction
of the Courts of the State of New Jersey.
b. In addition to the methods of service provided for in the Rules Governing the
Courts of the State of New Jersey, service may be made by delivering a copy of
the process to the person in charge of the office of the commission at its office,
but that service shall not be effective unless the plaintiff, which may be the
commission in a proceeding instituted by it:
(1) Sends a copy of the process and the pleading by certified mail to the
defendant or respondent at his last known address; and
(2) The plaintiff's affidavit of compliance with this section is filed in the case on or
before the return day of the process, if any, or within the time as the court allows.
c. If any person, including any nonresident of this State, engaged in conduct
prohibited by this act and has not filed a consent of service of process and
personal jurisdiction over him cannot otherwise be obtained in this State, that
conduct authorizes the commission to receive service of process in any
noncriminal proceedings against him or his successor which grows out of that
conduct and which is brought under this act with the same force and validity as if
served on him personally. Notice shall be given as provided in subsection a. of
this section.
N.J.S.A. 45:15-16.46 Violations by brokers, salespeople; fines, penalties
a. Any broker or salesperson who violates any of the provisions of this act shall,
in addition to the penalties set forth herein, be subject to the penalties as set forth
in R.S.45:15-17.
b. Any person who violates any provision of this act or any person who, in an
application for registration filed with the commission, makes any untrue
statement of a material fact or omits to state a material fact shall be fined not less
than $250, nor more than $50,000, per violation.
c. The commission may levy and collect the penalties set forth in subsection b.
of this section after affording the person alleged to be in violation of this act an
opportunity to appear before the commission and to be heard personally or
through counsel on the alleged violations and a finding by the commission that
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said person is guilty of the violation. When a penalty levied by the commission
has not been satisfied within 30 days of the levy, the penalty may be sued for
and recovered by, and in the name of, the commission in a summary proceeding
pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).
d. The commission may, in the interest of justice, compromise any civil penalty,
if in its determination the gravity of the offense or offenses does not warrant the
assessment of the full fine.
N.J.S.A. 45:15-16.52 Applicability of act.
4. a. This act shall not apply to any of the following:
(1) Timeshare plans, whether or not an accommodation or component site is
located in the State, consisting of 10 or fewer timeshare interests;
(2) Timeshare plans, whether or not an accommodation or component site is
located in this State, the use of which extends over any period of three years or
less. For purposes of determining the term of a timeshare plan, the period of any
automatic renewal shall be included , unless a purchaser has the right to
terminate the purchaser's participation in the timeshare plan at any time and
receive a pro rata refund, or the purchaser receives a notice, not less than 30
days, but not more than 60 days, prior to the date of renewal, informing the
purchaser of the right to terminate at any time prior to the date of automatic
renewal ;
(3) Timeshare plans, whether or not an accommodation or component site is
located in the State, under which the prospective purchaser's total financial
obligation will be equal to or less than $3,000 during the entire term of the
timeshare plan;
(4) Component sites of specific timeshare interest multi-site timeshare plans
that are neither located in nor offered for sale in this State, except that these
component sites are still subject to the disclosure requirements of section 10 of
this act;
(5) Offers or dispositions of securities or units of interest issued by a real estate
investment trust regulated under any State or federal statute;
(6) Offers or dispositions of securities currently registered with the Bureau of
Securities within the Division of Consumer Affairs in the Department of Law and
Public Safety.
b. A person shall not be required to register as a developer under this act if:
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(1) The person is an owner of a timeshare interest who has acquired the
timeshare interest for the person's own use and occupancy and who later offers it
for resale in a single or isolated transaction; or
(2) The person is a managing entity or an association that is not otherwise a
developer of a timeshare plan in its own right, solely while acting as an
association or under a contract with an association to offer or sell a timeshare
interest transferred to the association through foreclosure, deed in lieu of
foreclosure, or gratuitous transfer, if such acts are performed in the regular
course of, or as an incident to, the management of the association for its own
account in the timeshare plan.
c. If a developer has already registered a timeshare plan under this act, the
developer may offer or dispose of an interest in a timeshare plan that is not
registered under this act if the developer is offering a timeshare interest in the
additional timeshare plan to a current timeshare interest owner of a timeshare
interest in a timeshare plan created or operated by that same developer subject
to the rules and regulations adopted by the commission.
d. The commission may, from time to time, pursuant to any rules and
regulations adopted pursuant to this act, exempt from any of the provisions of
this act any timeshare plan, if it finds that the enforcement of this act with respect
to that plan is not necessary in the public interest, or required for the protection of
purchasers, by reason of the small amount of the purchase price or the limited
character of the offering.
N.J.S.A. 56:8-1 & 56:8-2 An act concerning consumer fraud its prevention and penalties
thereof
56:8-1
(a) The term “advertisement” shall include-the attempt
directly or indirectly by publication, dissemination, solicitation.
endorsement or circulation or in any other way to induce directly or
indirectly any person to enter or not enter any obligation or
acquire any title or interest in any merchandise or to increase the .
consumption thereof or to make any loan:
(b) The term "Attorney General" shall mean the Attorney General
of the State of New Jersey or any person acting on his behalf;
(c) The term "merchandise” shall include any objects, wares,
goods, commodities, services or anything offered~ directly or
indirectly, to the public for sale;
(d) The term “person” as used in this act shall include any
natural person or his legal representative\:l partnership', corpO)'ation,
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company, trust, business entity or association, and any agent,
employee, salesman~ partner, officer, director, member, stockholder,
associate, trustee thereof;
(e) The term, "sale" shall include any sale, rental, or distribution,
offer for sale) rental, or distribution or attempt,
directly or indirectly, to sell, rent or distribute.
56:8-2.
The act use or employment by any person of any
unconscionable commercial practice, deception, fraud, false pretense,
false promise, misrepresentation, or the knowing, concealment, suppression
or; omission, in connection with the sale or advertisement of any
merchandise or real estate or with the subsequent performance of such
person as aforesaid, whether or nor any person has in fact been misled,
deceived or damaged thereby, is declared to be an unlawful practice;
provided, however, that nothing herein contained shall apply to the
Owner or publisher of newspapers) magazines, publications or printed
matter wherein such advertisement when the owner, publisher or
operator has no knowledge of the intent, design or purpose of the
advertiser.
The Plaintiff Re-alleges the violations of this act in the communications between
Georgia Mohrbacher and The Plaintiff questioning the language of the contract
and receiving assurance from the Defendant(s) that the contract was just
standard and that they are not in the practice of evicting viable businesses
reaffirming during the verbal telephonic conversation that the services stated will
be provided.
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
Except for residential lessees and tenants included in section 2 of this act, any
lessee or tenant at will or at sufferance, or for a part of a year, or for one or more
years, of any houses, buildings, lands or tenements, and the assigns, under
tenants or legal representatives of such tenant or lessee, may be removed from
such premises by the Superior Court, Law Division, Special Civil Part in an action
in the following cases:
a. Where such person holds over and continues in possession of all or any part
of the demised premises after the expiration of his term, and after demand made
and written notice given by the landlord or his agent, for delivery of possession
thereof. The notice shall be served either personally upon the tenant or such
person in possession by giving him a copy thereof or by leaving a copy of the
same at his usual place of abode with a member of his family above the age of
14 years.
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b. Where such person shall hold over after a default in the payment of rent,
pursuant to the agreement under which the premises are held.
c. Where such person (1) shall be so disorderly as to destroy the peace and quiet
of the landlord or the other tenants or occupants living in said house or the
neighborhood, or (2) shall willfully destroy, damage or injure the premises, or (3)
shall constantly violate the landlord's rules and regulations governing said
premises, provided, such rules have been accepted in writing by the tenant or
are made a part of the lease; or (4) shall commit any breach or violation of any of
the covenants or agreements in the nature thereof contained in the lease for the
premises where a right of re-entry is reserved in the lease for a violation of such
covenants or agreements, and shall hold over and continue in possession of the
demised premises or any part thereof, after the landlord or his agent for that
purpose has caused a written notice of the termination of said tenancy to be
served upon said tenant, and a demand that said tenant remove from said
premises within three days from the service of such notice. The notice shall
specify the cause of the termination of the tenancy, and shall be served either
personally upon the tenant or such person in possession by giving him a copy
thereof, or by leaving a copy thereof at his usual place of abode with some
member of his family above the age of 14 years.
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
No judgment for possession in cases specified in paragraph "a." of section
2A:18-53 of this Title shall be ordered unless:
a. The tenancy, if a tenancy at will or from year to year, has been terminated by
the giving of 3 months' notice to quit, which notice shall be deemed to be
sufficient; or
b. The tenancy, if a tenancy from month to month, has been terminated by the
giving of 1 month's notice to quit, which notice shall be deemed to be sufficient;
or
c. The tenancy, if for a term other than at will, from year to year, or from month to
month, has been terminated by the giving of one term's notice to quit, which
notice shall be deemed to be sufficient; and
d. It shall be shown to the satisfaction of the court by due proof that the notice
herein required has been given.
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
If no sufficient cause is shown to the contrary when the action comes on for trial,
the court shall issue its warrant to any officer of the court, commanding him to
remove all persons from the premises, and to put the claimant into full
possession thereof, and to levy and make the costs out of the goods and chattels
of the person in possession.
No warrant of removal shall issue until the expiration of 3 days after entry of
judgment for possession, except as provided for in chapter 42 of this Title.
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The Plaintiff Re-alleges the violations and affirms that a termination letter was
issued for the notice to quit on December 8th 2021 and no court proceedings
have been filed with the Essex County court house special Civil division Landlord
Tenant for the removal of Zena L. Powell DBA as The Soul Kitchen.
N.J.S.A. 2A:18-58 Execution of warrant; use of force
An officer, to whom a warrant is issued by virtue of this article, shall obey the
command of and faithfully execute the same, and may, if necessary to the
execution thereof, uses such force as may be necessary.
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
Proceedings had by virtue of this article shall not be appealable except on the
ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil
action for unlawful proceedings under this article.
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
a. A tenant or prospective tenant may report a violation of the provisions of P.L.
2002, c.133 (C.2A:18-61.62 et al.) to the Director of the Division of Consumer
Affairs in the Department of Law and Public Safety. The director shall investigate
any complaint within 10 days of receipt of the complaint.
b. If the director determines that a violation of this act has occurred:
(1) a penalty may be assessed against the landlord in an amount equal to
six times the monthly rental sought to be imposed upon a tenant in
contravention of the “Notice of Rent Protection Emergency”; or
(2) any penalties for violations of the New Jersey Consumer Fraud Act,
P.L.1960, c.39 (C.56:8-1 et al.)
may be sought by the director.
c. Notwithstanding the provisions of subsections a. and b. of this section, a
tenant shall have the right to petition a court of competent jurisdiction to
terminate a lease containing a provision in violation of the provisions of P.L.
2002, c. 133 (C.2A:18-61.62 et al.).
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
Any violation of P.L.2002, c. 133 (C. 2A:18-61.62 et al.) shall be considered a
violation of the New Jersey Consumer Fraud Act, P.L.1960,c.39(C.56:8-1 et
seq.).
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CONLCUSION AND PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for a judgment in favor of a fair and just resolution
as follows:
1. Issue a judgment declaring that the acts of the Defendant(s) described herein
Violate
Federal Trade Commission Act Section 5(a) Unfair and Deceptive Business
Practices ARTICLE 2 U.C.C. §2-601 Buyer’s Rights on Improper Delivery,
ARTICLE 2 U.C.C. §2-609 Right to Adequate Assurance of Performance, 18 U.S
§1038 (b) False information and Hoaxes, 15 U.S.C. §45 (b) Consumer Review
Protection, The Lanham Act under section 43(a) False or misleading advertising.
The New Jersey State Statutes as follows N.J.S.A. 45:15-16.45 Submission of
applicant to the courts; methods of service 45:15-16.46 Violations by brokers,
salespeople; fines, penalties N.J.S.A. 56:8-1 & 56:8-2 An act concerning
consumer fraud its prevention and penalties thereof
N.J.S.A. 2A:18-53 Removal of tenant in certain cases; jurisdiction
N.J.S.A. 2A:18-56 Proof of notice to quit prerequisite to judgment
N.J.S.A. 2A:18-57 Judgment for possession; warrant for removal; issuance
N.J.S.A. 2A:18-58 Execution of warrant; use of force
N.J.S.A. 2A:18-59 Review; Landlord liable for unlawful proceedings
N.J.S.A. 2A:18-61.64. Report of violation, investigations, penalties
N.J.S.A. 2A:18-61.65. Violations considered as consumer fraud
The Magnitude of the Real Estate market has called for these types of
license agreements in lieu of a Lease agreement to circumvent Landlord tenant
Law but in the State of New Jersey The Law applies to both at will tenancy and
year to year. The new agreements also allow large companies like Cloud to
circumvent hiring certified individuals who are bound by license to conduct
business for real property commerce with full disclosure. But the threshold is that
each state is different in its application of their real property laws and the
applications and their definitions are applied as needed from State to State. By
Cloud Kitchens Inc. not observing such laws and attempting to circumvent
Federal violations and State laws for Special civil matters makes the Licensing
agreement they currently have invalid as it has a California Arbitration clause
specifically directing consumers to the California Association of Arbitration for
mediation and it is not the current Arbitration Clause or laws that is applicable in
the state in which they actively do business New Jersey for the current matter.
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2. Require the Defendants to revamp their current Licensing agreement to reflect
New Jersey Real property laws and all their remedies for at will tenancy.
3. Require the Defendants to stay within the guidelines of pricing under New
Jersey Property laws for usage of space per Square foot or Flat Fee.
4. Require the Defendants to use Salespeople registered with the State of New
Jersey Real Estate licensing Board which bounds non-broker salespeople to a
standard of conduct under New Jersey Law for the usage and distribution of
residential or commercial property.
5. Launch a formal federal inquiry into the business relationships between Cloud
and its partners in relation to formulating a pyramid business model that through
misrepresentation stirs the consumer into contracts that create failing businesses
due to lack of services rendered under current misleading and deceptive sales
practices. As a result of these actions creating high turnover for the current
properties within a ninety-day period a business owner will incur $12,000 to
$15,000 in expenses for a 200 square foot kitchen which is beyond price
gauging. At the rate of turnover with 24 kitchens minimum in each space doing
this at least 4 times per year the Cloud kitchen earns $1,152,000.00 roughly per
year and this is not including their partners which are supposed to be included in
the services rendered but are disclosed after signing that there are small fees
apart from KATOM. The aforementioned numbers with just one facility located in
each state as they currently do have the Owner grosses $57,600,000.00 per year
and that is on the low estimated end.
5. Nominal, Compensatory damages and Consequential damages to be
awarded to
The Johnson-Powell Group, LLC according to proof at trial;
4. For such other and further relief as the Court may deem just, proper, and
appropriate.
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the
Demand for Jury
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Rule 38-1 of
Local Rules, Plaintiff demands trial by jury for all the issues pleaded herein so
triable.
December 17th, 2021
Respectfully Submitted:
By: _____________________
Zena L. Powell
Address:
Telephone:
Email:
20 Howard Drive
Apt. V
Bergenfield, NJ, 07621
(551) 275-3771 mobile
(201) 374-2159 home
teoteojohnson@outlook.com
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cloudkitchens.com
Proposal:
Kitchen #
1
Monthly license fees
$3,600
ROEs/Operating Costs
$1,800*
Gas, electric, water, security, cleaning,
hood maintenance, internet, trash, landscaping,
pest, grease removal
Onboarding
FREE
Covers health permit application and CAD
drawing on kitchen floor plan
Processing Fee
3% per order
Concessions
2 month deposit instead of 3
Here’s what’s included:
●
Fire outlets
●
Hoods, extraction
●
Gas points
●
Makeup and tempered air
●
High power lighting
●
High throughput power and gas
●
Cold/Hot water lines
●
Industrial-grade water heating
●
Gas/fire safety system
●
Grease-trap/interceptor
●
WiFi
●
High-end walk-in cold + dry storage
●
Ethernet connections
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Core Product Offering
●
Pre-built, Move-in Ready Kitchen: 9 ft. hood w/fire suppression, 3-compartment, hand wash, and
food prep sinks, outlets, water + gas valves, make-up air unit (value: $200,000)
●
Managed Services: Water, electricity, gas, basic kitchen wipe down (nightly), hood cleaning, grease
removal, trash, recycling, sewage, internet, pest control, and security - straight passthrough (value:
cost savings from pooling services across multiple licensees - $500/month)
●
Common Areas: Restrooms, break room, ice machine, trash room
●
Order Fulfillment Service: CloudKitchens employees take your food from kitchen to driver (value:
decreased kitchen to driver time/lower driver handoff error, less labor)
Value-Added Services
●
Delivery Platform Onboarding: Menu and image upload, menu optimization, account management
with platforms, ability to add unlimited brands at any time (one-time value: $1,000)
●
Order Processing/Kitchen management software: 1 tablet and printer provided to you which
integrates with DoorDash, GrubHub, UberEats, Postmates, and Chownow (value: $75 - 200/ month)
●
Operational Health Permit: We help you file and manage the application process with the city
●
Ongoing Customer Support - Otter: CloudKitchens support team will handle 95% of customer
inquiries with delivery platforms, is available to 86 menu items, and more (value: $270 / month)
●
Future Foods & CaterMate: Access to additional brands and catering services developed &
supported by us that you can run out of your kitchen (save +$10k of brand creation cost)
Additional Cost Savings
●
Health & Building Permits: Coordination and time and lower costs where feasible
●
Kitchen Planning: Design consultation and CAD drawings to ensure equipment fit and power
requirements are met - required for permitting (one-time value: $3,000)
●
Discounts & Partnerships: TriMark: 10% discount off kitchen equipment, Made In Cookware: 20%
discount off premium cookware
Note: savings estimates based on existing facilities vs standalone location
cloudkitchens.com
Here’s what’s included (detailed)
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New Jersey - Belleville
Order Form for Kitchen Services
This Order Form for Kitchen Services (“Order Form”), along with the Kitchen Services Terms and Conditions, available as of the Effective Date at
https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the Order Form upon signature (“Terms and
Conditions”), together form an agreement between the Licensor and Customer identified below (“Kitchen Services Agreement” or “Agreement”).
Capitalized terms not defined in this Order Form shall be as defined in the Terms and Conditions. In this Agreement, “you” means Customer and
“we” or “us” means Licensor.
Licensor Information:
Name:500 Cortlandt Street BEL LLC
, a Delaware limited liability company
Address for Notices: 777 S. Figueroa Street, Floor 41, Los Angeles, California 90017
Contact: Limited Liability Company Manager
Email: sales@cloudkitchens.com
Phone: (888) 419-5458
Delivery Hub Address: 500 Cortlandt st, Belleville NJ, 07109
Customer/Licensee Information:
Sole Proprietorship
Name: Soul Kitchen
,a
20
Howard
Drive,
Apt
V,
Bergenfield
NJ, 07621
Address for Notices:
Zena
Powell
Contact:
Email: teoteojohnson@outlook.com
5512753771
Phone:
EIN:
Licensed Space:
1 kitchen(s) in the Delivery Hub (“Kitchen(s)”), along with any designated storage racks (subject to separate fees) outside of the Kitchen(s) and
including certain Delivery Hub common areas as designated by us from time to time (e.g., break rooms, etc.). The Kitchen is “as is” and built out in a
similar manner to other kitchens in the Delivery Hub. Any Changes (i) shall be outlined in a separate improvements agreement provided by Licensor
and (ii) must be approved by Licensor and paid for by Customer as further set forth in the Terms and Conditions. You are still responsible for
beginning payment on the License Fee Start Date whether or not your access is delayed because of the Changes. The maximum amps per Kitchen is
up to 60 amps.
Important Dates:
Term: Period from Effective Date until the expiration of the Initial Term, Renewal Term(s) (if any) or any Continuing Term, whichever is later.
Access Date: 2021-09-01
Effective Date: Date of last signature below
Initial Term: 12
Customer Fees:
Payment Method:
License Fee:
Processing
Services Fee:
Storage Services
Fee:
Operating
Expenses:
Refundable OneTime Fee:
Setup Fee:
Beta Products
Fees:
months beginning on License Fee Start Date
License Fee Start Date: 30
days after the Access Date, provided your
Operating Expenses and Storage Services Fees begin on the Access Date.
n/a
[__] ACH
[__] EFT
[__] Credit Card (as primary)
[__] Credit Card (for backup)
[__] Other [_________
]
$ 3600.00
per month ($ 3600.00
per Kitchen), starting on the License Fee Start Date. License Fee will be
increased on each anniversary of the Access Date by the greater of (a) 3% or (b) the CPI Increase (defined in the Agreement).
3% of the Total Order as defined in Section 1(b)(i).
The specific fees vary depending on the number of racks and type of storage you wish to use (freezer, dry, etc) and will be set
out in the Kitchen Rules or communicated to you by email. Parties shall agree in writing (email sufficient) as to the number of
racks and type from time to time.
$ USD 1800.00 Plus electricity
per month ($ 1800
per Kitchen), as
Customer’s portion (estimated) for utilities and shared services. The Operating Expenses commence on the Access Date.
$ 7200.00
, due upon the Effective Date. If you fail to pay us the Refundable One-Time Fee on the Effective
Date, we can immediately terminate this Agreement by providing you with email notice. You will not be allowed to access
the Licensed Space if you have not paid the Refundable-One Time Fee. Return of your Refundable One-Time Fee is subject
to Section 3(b).
$ .00
, due prior to the Access Date. The Setup Fee is a one-time and nonrefundable fee used to cover our
setup costs.
Some Delivery Hubs are equipped with the Digital Platform. If available and you use the Digital Platform you shall pay a
Program Fee of 4% of the Total Order, and a Credit Card Processing Fee of 2.9% of the Total Order as further described in
Section 14 (in addition to the Processing Services Fee). You may terminate your use of (or opt back into) the Digital Platform
by providing three (3) days written notice to Licensor or by checking this box
Kitchen Tech:
You are required to use the Kitchen Tech in your Kitchen to ensure efficient operations at the Delivery Hub (e.g. so we can provide the Processing
Services). The Kitchen Tech allows you to aggregate your orders from the following online ordering services for no additional fee: UberEats,
DoorDash, Grubhub, and Postmates. Additional integrations (including with a point of sale or direct to consumer website) requires additional fees.
1 – v070921
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Other Terms:
During the first three months of the Initial Term, Customer shall receive a 50%
discount off the License Fee.
We strive to enable your access to the Licensed Space on the access date. You
acknowledge however, that the Licensed Space may not be available on the Access
date due to inspections, construction, cleaning or various other delays. In
such an event, we will notify you of your adjusted access date.
By signing below, each party confirms that it has read and hereby agrees to the terms set forth in this Agreement (including the Terms and
Conditions available as of the Effective Date at https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the
Order Form upon signature). The parties agree that electronic signatures shall have the same effect as originals. If there is any conflict between this
Order Form and the Terms and Conditions, this Order Form shall prevail. The parties have executed this Agreement as of the date of the last
signature below:
Licensor:
Customer:
By: _________________________________________________
Marcel Comtois
Printed Name: ________________________________________
By: _______________________________________________
Zena Powell
Printed Name: ______________________________________
Title: ________________________________________________
General manager
Title: ______________________________________________
Date: ________________________________________________
Date: ______________________________________________
2 – v070921
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Kitchen Services Terms and Conditions
New Jersey - Belleville
These Kitchen Services Terms and Conditions (“Terms and Conditions”), taken together with an executed order form for Kitchen Services that
references these Terms and Conditions (“Order Form”), form an agreement between the Licensor and Customer designated in the Order Form (the
“Kitchen Services Agreement” or “Agreement”). If there is any conflict between these Terms and Conditions and an applicable Order Form, the
Order Form shall prevail. If the same parties enter into multiple Order Forms, each Order Form shall be treated as a standalone agreement.
Capitalized terms not defined in these Terms and Conditions shall be as defined in the applicable Order Form. You agree that the Order Form and
the Terms and Conditions constitute our Confidential Information and shall not be disclosed to any third party.
500 Cortlandt Street BEL LLC
1. Kitchen Services
a)
Access and Use. Subject to your compliance with the terms of the Agreement, we grant you and your employees a limited, nontransferable, non-exclusive, fee-bearing license, commencing on the Access Date and for the remainder of the Term, to access the
Licensed Space identified in the applicable Order Form only for the Permitted Use. You agree that you are only receiving a limited license
to access
the Licensed Space and that you are not signing Sole
a lease for
the Licensed Space nor are you receiving any ownership, leasehold
Soul
Kitchen
Proprietorship
estate, leasehold
interest, or
tenancyApt
rightsV,
in the
Licensed Space.NJ,
You are
not permitted to exclude us or our invitees, from the Licensed
20 Howard
Drive,
Bergenfield
07621
Space, Powell
and we may enter at any time, with or without
notice to yu, for any reasonable purpose, including
for the purpose of inspecting,
teoteojohnson@outlook.com
Zena
5512753771
cleaning and maintaining the Licensed Space. You also agree that the Delivery Hub and the Licensed Space may be subject to inspections
by food, fire and health and safety officials, all having the power to regulate your access and use of the Licensed Space, and you agree to
promptly pay 500
any finesCortlandt
or penalties imposed
by such
inspections againstNJ,
you or07109
resulting from your acts or omissions.
st,
Belleville
i)
Initial Access. We strive to enable your access to the Licensed Space on the Access Date. You acknowledge, however, that the
Licensed Space may not be available on the Access Date due to inspection, construction, cleaning or various other delays. In such an
event, we will notify you of your adjusted Access Date, and the Term and your License Fee and other monthly fee payment
obligations will be based upon the new Access Date. You agree that an adjustment of your Access Date as provided herein does not
constitute a breach of the Agreement, and you agree that we shall have no liability to you whatsoever for the Licensed Space not
being available by the Access Date, including for any staff or supply costs you may incur. You also agree that you are solely
responsible for ensuring you have sufficient permits and licenses to prepare food within your Kitchen (and your Access Date will not
be delayed if you have not obtained your required permits or licenses). We will be responsible for any facility-wide permits required
by Applicable Law.
ii)
Changes. You agree to not make any Changes to the Licensed Space (including installing any signage or other branding inside or
outside the Kitchen) without our prior written consent. If we agree to let you make a Change or if we make a Change at your
request, you will be solely responsible for the costs for such Change.2021-09-01
Third party contractors or subcontractors may not be used for
be properly licensed and insured as required in the
12Changes without our prior written consent. Your approved contractors shall 30
applicable jurisdiction. You and your contractors shall abide by any rules we set on how, when and where Changes can be made to
minimize disruption to the overall Delivery Hub. If you or your contractors fail to do so, we retain the right to prevent your
contractors from finishing the work, and you agree to pay us for the costs to finish or remove the Changes. You must ensure that any
Changes Xmade by you or your contractors comply with applicable laws, including required inspections and permits. Youn/a
acknowledge
that you must
still pay the License Fee and other applicable fees starting on the License Fee Start Date even if your approved
3600.00
3600.00
Changes are pending, in process or not complete. You are solely responsible for all restoration costs to revert your Changes to the
standard “as is” build similar to other Kitchens in the Delivery Hub.
1
b)
Processing.
i)
Processing Services. You agree to use our order processing services to facilitate the fulfillment of your Orders to your customers
using Third Party Vendors (“Processing Services”), which Processing Services may include, among other things, order verification,
final packaging and labeling, Delivery Hub runner personnel or Third Party Vendors courier distribution. You may not use the
Licensed Space
prepare food
and electricity
beverage product orders that do not utilize our Processing Services. You 1800
understand that the
USD to1800.00
Plus
Processing Services will be provided to you in exchange for your payment of the Processing Services Fee, which is in addition to the
License Fee. You also agree to use the Kitchen Tech, provided by our partner subject to separate terms available at
7200.00
https://www.tryotter.com/documents/legal/us/tou/kl-073120 (by signing this Agreement you are agreeing to the separate Kitchen
Tech terms). The use of the Kitchen Tech is required in order to provide you with the Processing Services and to ensure efficient
operations at the Delivery Hub. The Processing Services Fee is calculated based on information from Third Party Vendors. The
Processing Services Fee shall be calculated as follows: the percentage listed in the Order Form multiplied by the total order amount
charged by.00
Customer, excluding sales tax, promotions, and other discounts (“Total Order”). Licensor may modify the Processing
Services Fee by providing you with 30 days email notice.
ii)
Limitations. You understand that the services of Third Party Vendors and the Kitchen Tech are provided by third parties and as such,
Licensor has no responsibility for the Third Party Vendors, Kitchen Tech, or the technology or services they provide. You agree that
Licensor will not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Kitchen Tech.
Notwithstanding anything to the contrary, if you materially breach the Kitchen Tech terms of use and such terms of use are
terminated in accordance therein, we may also immediately terminate this Agreement or suspend your access to the Kitchen Tech
without any further obligation or liability.
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iii)
2.
3.
Storage. If you elect to license storage racks in dry, refrigerated and/or frozen storage in the Delivery Hub, we will make such
During the first three months of the Initial Term, Customer shall receive a 50%
storage racks available to you in exchange for your payment of the applicable Storage Services Fee (as communicated to you via
discount off the License Fee.
email or the Kitchen Rules), which is in addition to the License Fee. You may increase your use of storage racks on a month to month
basis by submitting
a written
to us,
and we
will attempt
to accommodate
storage
to availability.
You may
We strive
to request
enable
your
access
to the
Licensed your
Space
on needs
the subject
access
date. You
decrease your
use
of
storage
racks
or
terminate
your
right
to
use
some
or
all
of
your
storage
racks
by
providing
at
least
30
days’
acknowledge however, that the Licensed Space may not be available on the Access
prior notice (email
agree that we may
update your Storage
Services Fee
reflect yourother
then-current
use ofIn
storage
date sufficient).
due to You
inspections,
construction,
cleaning
or tovarious
delays.
racks.
such an event, we will notify you of your adjusted access date.
Operational Terms
a)
Rules and Restrictions. You acknowledge that each Delivery Hub is subject to a set of rules established by Licensor that govern the use of
the Delivery Hub and the Licensed Space (“Kitchen Rules”), and you agree to abide by the Kitchen Rules. You agree that we may
unilaterally modify the Kitchen Rules at our discretion at any time upon notice to you; provided such modifications will be reasonable,
non-discriminatory and will not conflict with this Agreement. You are required to keep your Kitchen(s) in a sanitary, clean and usable
condition and in first class order, repair and appearance as required by the Kitchen Rules and Applicable Law. You agree to only use the
Licensed Space for the Permitted Use and no other purpose. Only you and your employees may access the Delivery Hub. All other
persons or entities must receive our prior written approval prior to access any portion of the Delivery Hub. You agree to not use the
Licensed Space in a way that may be dangerous or a nuisance to other licensees in the Delivery Hub. You agree that we may move you to
a different Kitchen within the same Delivery Hub with at least 30 days’ prior notice (email sufficient) at our sole expense. We will apply
the Kitchen Rules in a nondiscriminatory manner.
b)
Compliance. You agree to comply with all Applicable Laws applicable to the operation of your business and use of the Licensed Space. In
addition, you agree all finished Orders and all raw materials, ingredients, processing aids, and packaging material (i) will be stored and
shipped under sanitary conditions, in strict compliance with all Applicable Laws, (ii) will be manufactured, labeled, and packaged in strict
compliance with all Applicable Laws, as well as current good manufacturing and other industry practices, and (iii) will be wholesome,
merchantable, fit for their intended purpose, and fit for human consumption, consistent with current good manufacturing and other
industry practices, and Applicable Laws.
c)
Monitoring. You agree to not take, and not let any third party take, any pictures, videos or other representations of the Licensed Space or
other materials that you receive or have access to in the course of performance of the Agreement. We may utilize video and audio
recording devices to monitor portions of the Delivery Hub, including in your Kitchen(s) and the common areas. This technology may also
include temperature and air flow sensors, electrical use meters, facial recognition software and other technology. You agree to notify
your employees and your other approved visitors, in writing (e.g. through an employee handbook), of the existence of these devices and
shall indemnify us for any claims, losses or expenses incurred by us for your failure to do so.
d)
Vacating the Licensed Space. At the end of the Term, we will perform a deep clean of your Kitchen(s) and deduct the cost from the
Marcel
Comtois
Zenayou
Powell
Refundable
One-Time
Fee (approximately $250 per Kitchen). Notwithstanding the foregoing,
agree to ensure the Licensed Space is
cleaned and in good order, repair and condition on your last day of access. You also agree to remove all of your furniture, equipment,
General manager
personal property and trade fixtures from the Licensed Space (“Remove”) not installed or provided by us (unless we otherwise agree in
writing) prior to your last day of access. If you fail to do so, you agree (i) we have the right, at your expense, to keep, sell, or otherwise
dispose of your furniture, equipment, personal property or trade fixtures that you did not remove by your last date of access, and (ii) you
are required to pay us for any costs or losses incurred to get the Licensed Space ready for the next customer, including the costs of any
deep cleaning or repairs and our lost revenue from the inability to license the space to the next customer due to your failure to Remove.
Fees and Payment Terms
a)
Fees. You agree to pay us the fees for our services as specified in the Order Form, without setoff or deduction, in accordance with the
terms of this Agreement. Operating Expenses and Storage Services Fees begin on your Access Date and may be prorated for partial
months. License Fee payment obligations commence on the License Fee Start Date and may be prorated for partial months. You agree
that any fees owed to us are non-refundable (except for the Refundable One-Time Fee). All fees due to us must be paid by the Payment
Method indicated on the Order Form and by the due date indicated on the invoice (and if no date is given or specified in this Agreement,
within thirty days of the invoice date). We reserve the right to require you to provide a credit card as a backup Payment Method. You
agree to use our specified third party payment platform to facilitate your payments to us, and you acknowledge and agree to the
payment platform terms available at https://www.cloudkitchens.com/documents/legal/us/ksa/ppt072720.pdf which are hereby
incorporated by reference. If you fail to pay us on time, we have the right to collect interest on such sum equal to the lesser of 1.5%
monthly or the highest rate permitted by law. You are also responsible for our costs in collecting unpaid fees, including any attorneys’
fees and costs. During a Continuing Term (defined below), we may increase or decrease the License Fee, Processing Services Fee or
Storage Services Fee upon sixty (60) days' notice.
b)
Refundable One-Time Fee. On the Effective Date, you agree to pay us the Refundable One-Time Fee. Within 60 days of the expiration of
the Agreement, we agree to return the Refundable One-Time Fee, excluding the cost to perform the deep clean (as outlined in Section
2(d)), subject first to the satisfaction of outstanding amounts owed to us. We may use the Refundable One-Time Fee to satisfy
outstanding amounts owed by you or charges incurred by you, including penalty amounts or unforeseen amounts related to Changes or
otherwise. Additionally, in the event you breach the Agreement without cure, you forfeit the Refundable One-Time Fee, and we reserve
the right to pursue additional legal remedies for your breach. If we apply your Refundable One-Time Fee towards anything in accordance
with the Agreement, you agree to immediately pay us an additional Refundable One-Time Fee (or pay an amount sufficient to restore the
Refundable One-Time Fee to its original balance).
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c)
Treatment of Operating Expenses. You shall be responsible for all costs and fees we incur for utilities and other shared services
applicable to the Licensed Space from and after the Access Date (collectively, “Operating Expenses”). Our reasonable estimate of your
monthly Operating Expenses shall be billed to you each month. Such estimate shall be based on (i) metering and other reasonable
methods of monitoring which are used to calculate a reasonable approximation and apportionment of your actual consumption of
utilities, (ii) an equitable apportionment of all kitchens in the Delivery Hub that use such utilities and shared services; or (iii) a
combination of (i) and (ii). On an annual basis (or more frequently if we elect), we may reasonably determine if the Operating Expenses
incurred prior to the date of determination were more or less than the Operating Expenses payments you actually made prior to the date
of such determination. If your payments exceed the actual Operating Expenses, then you will receive a credit towards your future
Operating Expenses until reimbursed in full, and if your payments are less than the actual Operating Expenses, then you shall pay us the
difference within 30 days following receipt of our invoice. Additionally, we may change your estimated monthly Operating Expenses (with
email notice) if, in our reasonable discretion, we believe your actual Operating Expenses will exceed your estimated payments. If you fail
to timely pay your estimated Operating Expenses or any reconciliation payments due hereunder, we may discontinue providing some or
all such services hereunder, and you agree we are not liable for damages or losses resulting from such discontinuance. You agree that we
are not responsible or liable for ensuring uninterrupted availability of any utilities or other services provided by or for you under the
Agreement, except to the extent caused by our gross negligence. You are required to use our existing internet network, provided, you
may use your own firewall, subject to our approval (which cannot be unreasonably withheld). You are solely responsible for all costs for
maintaining, installing and testing your own firewall.
d)
Taxes. The fees you owe to us do not include any Taxes. You are responsible for paying all Taxes associated with the Agreement and the
services we provide except for Taxes assessable on our income or employees. Without limiting the foregoing, you agree to be the seller
with respect to the sale of any food or products sold or distributed out of the Licensed Space and as such, you also agree to be
responsible for the payment of any Taxes for such food or products. If you don’t pay your Taxes (or the government alleges you haven’t
done so), we have the right to immediately terminate the Agreement. You are liable for, and must pay before delinquency, Taxes levied
against any personal facility or trade fixtures placed by you in the Kitchen.
4.
Insurance. We shall maintain commercial general liability insurance and property insurance for the Delivery Hub. You agree to maintain,
during the Term: (a) a commercial general liability insurance policy, in accordance with Insurance Services Office Form CG 00 01, on an
occurrence basis, including protection for your operations, completed operations and personal and advertising injury, covering the Kitchen
and insuring use thereof against claims for injuries, death and property damage occurring on or about the Kitchen, with limits no less than two
million dollars per occurrence; (b) workers’ compensation insurance (with statutory limits if applicable) and Employer’s Liability Insurance with
limits no less than one million dollars per occurrence; (c) food borne illness insurance (with industry standard limits); (d) property insurance in
amounts not less than full replacement cost value of your property and providing such form of protection against risk consistent with
prevailing industry standards for property insurance (with no coinsurance penalty provision), covering the personal property (including any
fixtures or equipment) located within the Delivery Hub (policy must also include loss of business income and extra expense for a minimum of
twelve months); (e) business automobile liability insurance for all owned, non-owned and hired vehicles, including loss of property of others in
your care, as well as the loss of use your property and property of others in your care with limits no less than one million dollars per
occurrence and two million dollars general aggregate; and (f) if we approve for you to sell alcohol out of our space (in writing) and you are
legally permitted to do so, Liquor Liability insurance, of at least one million dollars per occurrence and general aggregate limits of at least two
million dollars. You agree to furnish a certificate of insurance evidencing the above policy limits. All liability insurance maintained by you must
(i) name Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers (and its
mortgagee, if applicable) as additional insured under such policy; (ii) be in a form reasonably satisfactory to us, with an insurance carrier
reasonably satisfactory to us; and (iii) be primary insurance (at least as broad as ISO CG 20 01 04 13). Any insurance or self-insurance
maintained by Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers, shall
be excess of your insurance and shall not contribute with it. All such insurance is subject to modification or cancellation only upon ten (10)
days’ written notice to each certificate holder. The issuance of any insurance policy required under the Agreement, or the minimum limits
specified in the Agreement with respect to your insurance coverage, will not be deemed to limit or restrict in any way your liability arising
under or with respect to the Agreement. You hereby grant to Licensor a waiver of any right to subrogation which any of your insurers may
acquire against the Licensor by virtue of the payment of any loss under such insurance. You agree to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Licensor has received a waiver of
subrogation endorsement from the insurer.
5.
Confidentiality. Each party agrees to not use the other party’s Confidential Information except as necessary for the performance of the
Agreement and will not disclose the other party’s Confidential Information to any third party except to those of the receiving party’s
employees and contractors who have a need to know such Confidential Information for the performance of the Agreement, provided that
each such employee or contractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms
set forth in the Agreement. You agree that the fact you have entered into the Agreement and are licensing space from us, and the terms of the
Agreement, constitute our Confidential Information. Each party will employ all reasonable steps to protect the other party’s Confidential
Information from unauthorized use or disclosure, including the steps you take to protect its own Confidential Information. The foregoing
obligations will not restrict the receiving party from disclosing the other party’s Confidential Information: (a) pursuant to the order or
requirement of a court, administrative agency, or other governmental body, provided that the receiving party give reasonable notice to the
disclosing party to contest such order or requirement; and (b) to receiving party’s legal or financial advisors, provided the receiving party is
responsible for ensuring such information remains confidential. The receiving party is liable for any breaches of confidentiality by its
employees, contractors, legal or financial advisors.
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6.
Representations and Warranties. Each party represents and warrants as to itself that (a) it has the right to enter into and perform the
Agreement and that the individual signing the Order Form has the right to bind their respective company, and (b) it will not violate any
Applicable Law or obligations to any third party by entering into and performing under the Agreement. You represent and warrant that you
have all permits and licenses required to prepare and sell food and beverage products out of the Licensed Space (including any permits
required for you to prepare food in the Kitchen).
7.
Disclaimers; Limits of Liability
a)
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (i) WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THE AGREEMENT, AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY, CARE, NON-INFRINGEMENT, PERFORMANCE, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED, AND (ii) THE LICENSED SPACE AND RELATED SERVICES, THE TECHNOLOGY AND RELATED HARDWARE,
AND ANY OTHER GOODS, SERVICES, OR TECHNOLOGY THAT MAY BE PROVIDED BY US OR OUR PARTNERS HEREUNDER ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF LOSS OR DAMAGE TO YOUR FOOD AND BEVERAGE PRODUCTS. YOU AGREE THAT
NEITHER WE, NOR ANY OF OUR AGENTS, HAVE MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED SPACE,
THE DELIVERY HUB OR THE TECHNOLOGY, OR WITH RESPECT TO THEIR SUITABILITY FOR THE CONDUCT OF YOUR BUSINESS, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT.
b)
Limits of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE SHALL NOT, AND OUR AFFILIATES SHALL NOT, BE
LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING
CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE
LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS, COST, DAMAGE OR OTHER LIABILITY THAT RESULTS FROM ANY SCHEDULED OR
UNSCHEDULED DOWNTIME OF THE KITCHEN TECH OR YOUR INABILITY TO ACCESS YOUR KITCHEN. NOTWITHSTANDING ANYTHING TO
THE CONTRARY ELSEWHERE IN THE AGREEMENT, OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT
WILL NOT EXCEED THE MONTHLY LICENSE FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO
THE CLAIM. NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL
ACTIVITY.
8.
Indemnification. You agree, at your sole expense, to indemnify, hold harmless and, at our election, defend Indemnitees from and against any
and all losses, costs and expenses of any kind, including reasonable attorneys’ fees, claim, demand or action, incurred by any Indemnitee
arising from or related to: (a) your business, your food and beverage products or your use of Third Party Vendors; (b) your negligence or willful
misconduct; (c) risks against which you are insured or required to be insured against as specified in the Agreement; (d) acts or omissions of
your employees, contractors or any other of your invitees to the Licensed Space; or (e) a breach or alleged breach of the Agreement by you or
your employees. You agree to not settle or otherwise dispose of any third party claim, demand or action against an Indemnitee without our
prior written approval, which shall not be unreasonably withheld.
9.
Term and Termination
a)
Term. The Agreement will begin as of the Effective Date and remain in effect until the end of the later of the Initial Term, Renewal Term
or Continuing Term. Either party may terminate this Agreement by providing a written notice of non-renewal no later than 60 days prior
(“Notice”) to the end of the applicable Initial Term or Renewal Term. If neither party has provided Notice, at the end of the later of the (i)
Initial Term or (ii) Renewal Term (if any), this Agreement shall continue until either party terminates this Agreement by providing at least
sixty (60) notice ("Continuing Term"). For example, if the last day of the Initial Term is July 17 (and there is no Renewal Term) and you
provide 60 days notice on August 1, then the Continuing Term will continue until (and the Agreement will terminate on) September 30.
b)
Termination. A party may terminate the Agreement in the event of a material breach by the other party, provided, such other party is
provided with written notice of such breach and at least 30 days to cure the breach after receipt of such notice. Notwithstanding the
foregoing, in addition, we may terminate the Agreement (including your right to access the Licensed Space) immediately upon written
notice to you if any of the following occur: (i) you fail to make any payments owed to us and fail to cure within 7 days, (ii) you breach
Sections 1(b) or 5 of this Agreement, (iii) you fail to use the Licensed Space within 15 days of the Access Date or communicate that you do
not intend to use the Licensed Space, (iv) you breach the Agreement and the breach involves an illegal, hazardous or dangerous
condition, including your failure (or an allegation that you have failed) to comply with all Applicable Laws, (v) you file for bankruptcy, have
an administrator appointed over your business or assets, pursue a corporate reorganization, corporate voluntary arrangement, or similar,
you make an assignment for the benefit of creditors, are insolvent, or admit you won’t be able to meet your debts as they mature, or (vi)
if any part of the Licensed Space is taken by the exercise of the power of eminent domain.
c)
Effect of Termination. Upon termination or expiration of this Agreement you may no longer access the Licensed Space. Outstanding
payment obligations and Sections 5-13 will survive any termination or expiration of the Agreement. Without limiting our other rights or
remedies, in the event the Agreement is terminated (except for our breach), you forfeit the Refundable One-Time Fee and you will owe
the License Fees for the remainder of the Term.
10. Force Majeure. A “Force Majeure Event” means an event beyond the reasonable control of a party, which prevents the party from complying
with its obligations under the Agreement, including an act of God (fire, earthquake, flood, drought, epidemic, pandemic, etc.), war or other
hostilities, acts or threats of terrorism, strikes or acts of civil disturbance, utility outages, and shortages of materials or labor. In no event shall
either party be considered in breach of this Agreement to the extent its obligations are prevented or delayed, directly or indirectly, by a Force
Majeure Event, and the period of time for performance shall be extended until such event has ended. Notwithstanding anything to the
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contrary, obligations to pay fees owed hereunder shall not be delayed, waived, canceled, or otherwise affected by a Force Majeure Event,
even if you cannot use the Licensed Space due to the Force Majeure Event.
11. Arbitration. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON
AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each
party agrees that any claim or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration
before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for
arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles,
California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be
entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems
proper in the circumstances, only to the extent permitted by the Agreement and Applicable Law, provided that the arbitrator will not have the
authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses.
Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding
between you and Licensor will not be consolidated with any other arbitration proceeding involving Licensor or any other person or entity.
12. Miscellaneous. Any notice or other communication to Licensor under this Agreement shall be in writing and either delivered to the address in
the Order Form in person (effective when received) or by an overnight commercial delivery service (effective one business day after sending).
You agree that we may use the email address on the Order Form to send you notices under this Agreement (effective on the day sent). You
may not assign, convey, delegate, lease, sublet, sublicense or otherwise transfer in any manner this Agreement, or any of your rights,
remedies or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without our prior written consent,
and any purported assignment or transfer by you in violation of this provision is void. We may assign or otherwise transfer this Agreement,
including any of our rights, remedies or obligations, in whole or in part, at any time. The Agreement will be binding upon each party and its
successors and permitted assigns. We may subcontract any of the services in our sole discretion. The Agreement may only be modified,
supplemented or amended in a writing signed by both parties. No failure or delay by a party in exercising any right, power, or privilege under
the Agreement will operate as a waiver hereunder. The invalidity or unenforceability of any provision of the Agreement will not affect the
validity or enforceability of any other provision of the Agreement, all of which will remain in full force and effect. This Agreement shall be
governed by the laws of the State of California, without regard to its choice of law rules. Subject to the section entitled “Arbitration” above,
the parties agree that any dispute arising from or related to the Agreement must be resolved exclusively in Federal or State courts located in
Los Angeles County, California. The Agreement contains the entire understanding of the parties regarding its subject matter, and supersedes
all prior and related contemporaneous agreements and understandings between the parties. When used herein, the term “including” shall be
deemed to mean “including, without limitation”.
13. Definitions.
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
“Access Date” means the estimated date you will be able to access your Kitchen (your actual first day of access may be pushed back or
moved up due to inspection, construction, cleaning or various other delays).
“Applicable Laws” means applicable federal, state, local, or other laws, rules, regulations, ordinances, or similar, including all applicable
health and safety and employment and labor laws.
“Changes” means any alterations, modifications, changes, or improvements to the Licensed Space made by either you or us.
“CPI Increase” means the increase in the Consumer Price Index (CPI-U, All Urban Consumers, U.S. City Average, 1982/84=100) over the
Base Index. The Base Index is that value published immediately prior to the Access Date.
“Confidential Information” means information or materials that: (a) are disclosed in writing or orally and are either marked or identified
as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (b) the receiving party knows or has reason to know,
by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing,
product and financial information, in any form or format; provided, however, that Confidential Information does not include information
that: (i) is in or enters the public domain through no act or omission of the receiving party; (ii) a party lawfully received from a third party
without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (iii) a party
knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or (iv) a
party independently developed without use of, or access to, any Confidential Information.
“Indemnitees” means Licensor and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers,
shareholders, members, and representatives, and our other space licensees and their employees and contractors.
“Kitchen Tech” means the proprietary technology platform (including all related software, services and hardware) provided by our
partner, which facilitates the Processing Services and enables interaction with Third Party Vendors while in the Licensed Space. Your use
of the Kitchen Tech is subject to the terms of use available at https://www.tryotter.com/documents/legal/us/tou/kl-073120
“Orders” means orders for the delivery of food and beverage products placed by the end users of Third Party Vendors apps, websites or
other means for ordering.
“Permitted Use” means the storing, preparing and packaging of your food and beverage products for delivery to your customers to fulfill
Orders in the ordinary course of your restaurant and/or catering business.
“Taxes” means taxes, levies, duties or other similar government assessments of any nature, including value added, sales and use, or
withholding taxes.
“Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and/or other third
party vendors or service providers that you may elect to use.
l)
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14. Beta Products. We are constantly looking to evolve and create new products and services to make your use of the licensed Kitchen more
efficient. As such, we developed new beta products and services (collectively, “Beta Products”) which you can use in accordance with the
terms below. Orders placed via the new Beta Products shall be included within the definition of Orders, and as such, all other terms in the
Agreement shall apply to your use of these services and these Orders. The following outlines the Beta Products that may be made available.
a) Flipdish Kiosk and Online Ordering. In the Delivery Hub, we may allow the public to access the Delivery Hub and place orders via a kiosk
(“Kiosk”) and/or through an online ordering portal (“Web Platform” together with Kiosk “Digital Platform”). You agree to offer your
merchandise and products for purchase via the Digital Platform. The public may be able to place orders via the Digital Platform for brands
owned and operated by you or also brands owned and operated by us (if you’ve signed an agreement to comanage Future Foods brands).
i) Please note that the Digital Platform services are provided in partnership by Flipdish. To use the Digital Platform, you must
accept and agree to Flipdish’s terms and conditions, which may be accessed when you sign on and access the Digital Platform.
ii) For each Order made through the Digital Platform, in addition to the Processing Fee in the Kitchen Services Agreement or any other
Flipdish specific fees, you agree to pay the additional fees outlined below:
(1) Program Fee of 4% of the Total Order, and
(2) Credit Card Processing Fee of 2.9% of the Total Order plus the applicable sales tax.
iii) You hereby grant us and our affiliates a worldwide, royalty-free, non-exclusive license to use Your IP for the purpose of providing the
Digital Platform services. You will retain ownership of Your IP at all times. “Your IP” means your restaurant names, trademarks, other
identifying indicators, your menu descriptions and pictures, and any marketing assets you provide us to help market your products.
iv) You agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Digital Platform Data
(defined below), except as required to fulfill the food or product order and as otherwise required to perform your obligations and
services under the Agreement. If you become aware of any unauthorized access to Digital Platform Data, you agree to immediately
notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably
requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us
and will be responsible for damages resulting from your failure to comply. You will be responsible for damages resulting from
sharing your login credentials with unauthorized third parties or otherwise permitting unauthorized access to your account. You may
not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the
source code of the Digital Platform; damage, destroy or impede the services provided through the Digital Platform; transmit
injurious code; or bypass or breach any security protection on the Digital Platform. Digital Platform Data shall mean any information
that we provide or make accessible to you through the Digital Platform, including without limitation any personal information.
“Digital Platform Data” shall mean any information that we provide or make accessible to you through the Digital Platform,
including without limitation Personal Information. “Personal Information” means information that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or
household.
v) In using the Digital Platform, you agree to: (i) continuously update your in-store menu, including the price of each item on such
menu; (ii) continuously monitor your menu and store information on the Digital Platform, promptly make updates to reflect the
most up-to-date products, pricing and other information or immediately notify us of any errors or changes in writing; (iii) accept all
food or product orders placed from your then-current menu; (iv) prepare the orders for customer pickup at the designated time; (iv)
process in the order in which they are received; (v) continuously update the pricing, availability, description, or other characteristics
of the food or products; (vi) notify us if you closes earlier than your standard hours of operation or plans to close earlier than your
standard hours of operation; provide the same utensils, napkins, bags and other materials that you would typically provide in a
standard take-out or delivery order; and (vii) on an ongoing basis, review and confirm the transactions, fees and charges on orders
via the Digital Platform, and promptly communicate to us and Flipdish of any inaccuracies.
vi) YOU ACKNOWLEDGE THAT FLIPDISH IS PROVIDING THE DIGITAL PLATFORM SERVICES, INCLUDING THE COLLECTION AND
DISBURSEMENT OF FEES AND PAYMENTS. YOU HEREBY WAIVE, RELEASE AND DISCHARGE FOREVER FULLY AND UNCONDITIONALLY
RELEASE US, AND OUR AFFILIATES, AGENTS, REPRESENTATIVES, SUBSIDIARIES FROM ALL DAMAGES, CLAIMS, CAUSES OF ACTION,
LOSSES, DEMANDS, JUDGEMENTS, ATTORNEYS’ FEES ARISING FROM OR RELATED TO YOUR USE OF A BETA PRODUCT OR ANY
ACTIONS OR INACTIONS OF FLIPDISH OR ANY OTHER THIRD PARTY PROVIDER THAT PROVIDES SERVICES UNDER THE DIGITAL
PLATFORM. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF
SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS
FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
b) Notwithstanding anything to the contrary, we may modify or discontinue the Beta Products at any time, and we can suspend or
terminate your use of the Beta Products at any time with or without notice to you. You agree that we may unilaterally modify the
terms and conditions (including fees owed by you) regarding the use of the Beta Products. In such an event, we will provide you with
at least thirty (30) days notice of any modification. By continuing to use the Beta Products, you agree to such modification.
c) The Beta Products may contain features, functionality or modules that will not be included in the final production version of the Beta
Products, if released, or that will be marketed separately for additional fees. You expressly agree that we do not have an obligation to
ensure the Beta Products function properly or at all. You hereby release Indemnitees for any losses, claims (known or unknown),
expenses, or liability resulting from your use of the Beta Products. Further, you agree to indemnify, defend and hold Indemnitees
harmless for any losses (including, without limitation, losses incurred in connection with any claims) arising from or related to your use of
the Beta Products. This obligation shall survive any termination or expiration of the Agreement. YOUR USE OF THE BETA PRODUCTS IS AT
YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY
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ARISING OUT OF OR RELATED TO YOUR USE OF THE BETA PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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Kitchen Services Terms and Conditions
New Jersey - Belleville
These Kitchen Services Terms and Conditions (“Terms and Conditions”), taken together with an executed order form for Kitchen Services that
references these Terms and Conditions (“Order Form”), form an agreement between the Licensor and Customer designated in the Order Form (the
“Kitchen Services Agreement” or “Agreement”). If there is any conflict between these Terms and Conditions and an applicable Order Form, the
Order Form shall prevail. If the same parties enter into multiple Order Forms, each Order Form shall be treated as a standalone agreement.
Capitalized terms not defined in these Terms and Conditions shall be as defined in the applicable Order Form. You agree that the Order Form and
the Terms and Conditions constitute our Confidential Information and shall not be disclosed to any third party.
500 Cortlandt Street BEL LLC
1. Kitchen Services
a)
Access and Use. Subject to your compliance with the terms of the Agreement, we grant you and your employees a limited, nontransferable, non-exclusive, fee-bearing license, commencing on the Access Date and for the remainder of the Term, to access the
Licensed Space identified in the applicable Order Form only for the Permitted Use. You agree that you are only receiving a limited license
to access
the Licensed Space and that you are not signing Sole
a lease for
the Licensed Space nor are you receiving any ownership, leasehold
Soul
Kitchen
Proprietorship
estate, leasehold
interest, or
tenancyApt
rightsV,
in the
Licensed Space.NJ,
You are
not permitted to exclude us or our invitees, from the Licensed
20 Howard
Drive,
Bergenfield
07621
Space, Powell
and we may enter at any time, with or without
notice to you, for any reasonable purpose,5512753771
including for the purpose of inspecting,
teoteojohnson@outlook.com
Zena
cleaning and maintaining the Licensed Space. You also agree that the Delivery Hub and the Licensed Space may be subject to inspections
by food, fire and health and safety officials, all having the power to regulate your access and use of the Licensed Space, and you agree to
promptly pay 500
any finesCortlandt
or penalties imposed
by such
inspections againstNJ,
you or07109
resulting from your acts or omissions.
st,
Belleville
i)
Initial Access. We strive to enable your access to the Licensed Space on the Access Date. You acknowledge, however, that the
Licensed Space may not be available on the Access Date due to inspection, construction, cleaning or various other delays. In such an
event, we will notify you of your adjusted Access Date, and the Term and your License Fee and other monthly fee payment
obligations will be based upon the new Access Date. You agree that an adjustment of your Access Date as provided herein does not
constitute a breach of the Agreement, and you agree that we shall have no liability to you whatsoever for the Licensed Space not
being available by the Access Date, including for any staff or supply costs you may incur. You also agree that you are solely
responsible for ensuring you have sufficient permits and licenses to prepare food within your Kitchen (and your Access Date will not
be delayed if you have not obtained your required permits or licenses). We will be responsible for any facility-wide permits required
by Applicable Law.
ii)
Changes. You agree to not make any Changes to the Licensed Space (including installing any signage or other branding inside or
outside the Kitchen) without our prior written consent. If we agree to let you make a Change or if we make a Change at your
request, you will be solely responsible for the costs for such Change.2021-09-01
Third party contractors or subcontractors may not be used for
be properly licensed and insured as required in the
12Changes without our prior written consent. Your approved contractors shall 30
applicable jurisdiction. You and your contractors shall abide by any rules we set on how, when and where Changes can be made to
minimize disruption to the overall Delivery Hub. If you or your contractors fail to do so, we retain the right to prevent your
contractors from finishing the work, and you agree to pay us for the costs to finish or remove the Changes. You must ensure that any
Changes Xmade by you or your contractors comply with applicable laws, including required inspections and permits. Youn/a
acknowledge
that you must
still pay the License Fee and other applicable fees starting on the License Fee Start Date even if your approved
3600.00
3600.00
Changes are pending, in process or not complete. You are solely responsible for all restoration costs to revert your Changes to the
standard “as is” build similar to other Kitchens in the Delivery Hub.
1
b)
Processing.
i)
Processing Services. You agree to use our order processing services to facilitate the fulfillment of your Orders to your customers
using Third Party Vendors (“Processing Services”), which Processing Services may include, among other things, order verification,
final packaging and labeling, Delivery Hub runner personnel or Third Party Vendors courier distribution. You may not use the
Licensed Space
prepare food
and electricity
beverage product orders that do not utilize our Processing Services. You 1800
understand that the
USD to1800.00
Plus
Processing Services will be provided to you in exchange for your payment of the Processing Services Fee, which is in addition to the
License Fee. You also agree to use the Kitchen Tech, provided by our partner subject to separate terms available at
7200.00
https://www.tryotter.com/documents/legal/us/tou/kl-073120 (by signing this Agreement you are agreeing to the separate Kitchen
Tech terms). The use of the Kitchen Tech is required in order to provide you with the Processing Services and to ensure efficient
operations at the Delivery Hub. The Processing Services Fee is calculated based on information from Third Party Vendors. The
Processing Services Fee shall be calculated as follows: the percentage listed in the Order Form multiplied by the total order amount
charged by.00
Customer, excluding sales tax, promotions, and other discounts (“Total Order”). Licensor may modify the Processing
Services Fee by providing you with 30 days email notice.
ii)
Limitations. You understand that the services of Third Party Vendors and the Kitchen Tech are provided by third parties and as such,
Licensor has no responsibility for the Third Party Vendors, Kitchen Tech, or the technology or services they provide. You agree that
Licensor will not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Kitchen Tech.
Notwithstanding anything to the contrary, if you materially breach the Kitchen Tech terms of use and such terms of use are
terminated in accordance therein, we may also immediately terminate this Agreement or suspend your access to the Kitchen Tech
without any further obligation or liability.
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iii)
2.
3.
Storage. If you elect to license storage racks in dry, refrigerated and/or frozen storage in the Delivery Hub, we will make such
During the first three months of the Initial Term, Customer shall receive a 50%
storage racks available to you in exchange for your payment of the applicable Storage Services Fee (as communicated to you via
discount off the License Fee.
email or the Kitchen Rules), which is in addition to the License Fee. You may increase your use of storage racks on a month to month
basis by submitting
a written
to us,
and we
will attempt
to accommodate
storage
to availability.
You may
We strive
to request
enable
your
access
to the
Licensed your
Space
on needs
the subject
access
date. You
decrease your
use
of
storage
racks
or
terminate
your
right
to
use
some
or
all
of
your
storage
racks
by
providing
at
least
30
days’
acknowledge however, that the Licensed Space may not be available on the Access
prior notice (email
agree that we may
update your Storage
Services Fee
reflect yourother
then-current
use ofIn
storage
date sufficient).
due to You
inspections,
construction,
cleaning
or tovarious
delays.
racks.
such an event, we will notify you of your adjusted access date.
Operational Terms
a)
Rules and Restrictions. You acknowledge that each Delivery Hub is subject to a set of rules established by Licensor that govern the use of
the Delivery Hub and the Licensed Space (“Kitchen Rules”), and you agree to abide by the Kitchen Rules. You agree that we may
unilaterally modify the Kitchen Rules at our discretion at any time upon notice to you; provided such modifications will be reasonable,
non-discriminatory and will not conflict with this Agreement. You are required to keep your Kitchen(s) in a sanitary, clean and usable
condition and in first class order, repair and appearance as required by the Kitchen Rules and Applicable Law. You agree to only use the
Licensed Space for the Permitted Use and no other purpose. Only you and your employees may access the Delivery Hub. All other
persons or entities must receive our prior written approval prior to access any portion of the Delivery Hub. You agree to not use the
Licensed Space in a way that may be dangerous or a nuisance to other licensees in the Delivery Hub. You agree that we may move you to
a different Kitchen within the same Delivery Hub with at least 30 days’ prior notice (email sufficient) at our sole expense. We will apply
the Kitchen Rules in a nondiscriminatory manner.
b)
Compliance. You agree to comply with all Applicable Laws applicable to the operation of your business and use of the Licensed Space. In
addition, you agree all finished Orders and all raw materials, ingredients, processing aids, and packaging material (i) will be stored and
shipped under sanitary conditions, in strict compliance with all Applicable Laws, (ii) will be manufactured, labeled, and packaged in strict
compliance with all Applicable Laws, as well as current good manufacturing and other industry practices, and (iii) will be wholesome,
merchantable, fit for their intended purpose, and fit for human consumption, consistent with current good manufacturing and other
industry practices, and Applicable Laws.
c)
Monitoring. You agree to not take, and not let any third party take, any pictures, videos or other representations of the Licensed Space or
other materials that you receive or have access to in the course of performance of the Agreement. We may utilize video and audio
recording devices to monitor portions of the Delivery Hub, including in your Kitchen(s) and the common areas. This technology may also
include temperature and air flow sensors, electrical use meters, facial recognition software and other technology. You agree to notify
your employees and your other approved visitors, in writing (e.g. through an employee handbook), of the existence of these devices and
shall indemnify us for any claims, losses or expenses incurred by us for your failure to do so.
d)
Vacating the Licensed Space. At the end of the Term, we will perform a deep clean of your Kitchen(s) and deduct the cost from the
Marcel
Comtois
Zenayou
L.agree
Powell
Refundable
One-Time
Fee (approximately $250 per Kitchen). Notwithstanding the foregoing,
to ensure the Licensed Space is
cleaned and in good order, repair and condition on your last day of access. You also agree to remove all of your furniture, equipment,
Zena L. Powell General manager
General
Manager
personal
property
and trade fixtures from the Licensed Space (“Remove”) not installed or provided by us (unless we otherwise agree in
writing)
prior 2021
to your last day of access. If you fail to do so, you agree (i) we have the right,
your expense,
July 30,
Julyat 27,
2021 to keep, sell, or otherwise
dispose of your furniture, equipment, personal property or trade fixtures that you did not remove by your last date of access, and (ii) you
are required to pay us for any costs or losses incurred to get the Licensed Space ready for the next customer, including the costs of any
deep cleaning or repairs and our lost revenue from the inability to license the space to the next customer due to your failure to Remove.
Fees and Payment Terms
a)
Fees. You agree to pay us the fees for our services as specified in the Order Form, without setoff or deduction, in accordance with the
terms of this Agreement. Operating Expenses and Storage Services Fees begin on your Access Date and may be prorated for partial
months. License Fee payment obligations commence on the License Fee Start Date and may be prorated for partial months. You agree
that any fees owed to us are non-refundable (except for the Refundable One-Time Fee). All fees due to us must be paid by the Payment
Method indicated on the Order Form and by the due date indicated on the invoice (and if no date is given or specified in this Agreement,
within thirty days of the invoice date). We reserve the right to require you to provide a credit card as a backup Payment Method. You
agree to use our specified third party payment platform to facilitate your payments to us, and you acknowledge and agree to the
payment platform terms available at https://www.cloudkitchens.com/documents/legal/us/ksa/ppt072720.pdf which are hereby
incorporated by reference. If you fail to pay us on time, we have the right to collect interest on such sum equal to the lesser of 1.5%
monthly or the highest rate permitted by law. You are also responsible for our costs in collecting unpaid fees, including any attorneys’
fees and costs. During a Continuing Term (defined below), we may increase or decrease the License Fee, Processing Services Fee or
Storage Services Fee upon sixty (60) days' notice.
b)
Refundable One-Time Fee. On the Effective Date, you agree to pay us the Refundable One-Time Fee. Within 60 days of the expiration of
the Agreement, we agree to return the Refundable One-Time Fee, excluding the cost to perform the deep clean (as outlined in Section
2(d)), subject first to the satisfaction of outstanding amounts owed to us. We may use the Refundable One-Time Fee to satisfy
outstanding amounts owed by you or charges incurred by you, including penalty amounts or unforeseen amounts related to Changes or
otherwise. Additionally, in the event you breach the Agreement without cure, you forfeit the Refundable One-Time Fee, and we reserve
the right to pursue additional legal remedies for your breach. If we apply your Refundable One-Time Fee towards anything in accordance
with the Agreement, you agree to immediately pay us an additional Refundable One-Time Fee (or pay an amount sufficient to restore the
Refundable One-Time Fee to its original balance).
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c)
Treatment of Operating Expenses. You shall be responsible for all costs and fees we incur for utilities and other shared services
applicable to the Licensed Space from and after the Access Date (collectively, “Operating Expenses”). Our reasonable estimate of your
monthly Operating Expenses shall be billed to you each month. Such estimate shall be based on (i) metering and other reasonable
methods of monitoring which are used to calculate a reasonable approximation and apportionment of your actual consumption of
utilities, (ii) an equitable apportionment of all kitchens in the Delivery Hub that use such utilities and shared services; or (iii) a
combination of (i) and (ii). On an annual basis (or more frequently if we elect), we may reasonably determine if the Operating Expenses
incurred prior to the date of determination were more or less than the Operating Expenses payments you actually made prior to the date
of such determination. If your payments exceed the actual Operating Expenses, then you will receive a credit towards your future
Operating Expenses until reimbursed in full, and if your payments are less than the actual Operating Expenses, then you shall pay us the
difference within 30 days following receipt of our invoice. Additionally, we may change your estimated monthly Operating Expenses (with
email notice) if, in our reasonable discretion, we believe your actual Operating Expenses will exceed your estimated payments. If you fail
to timely pay your estimated Operating Expenses or any reconciliation payments due hereunder, we may discontinue providing some or
all such services hereunder, and you agree we are not liable for damages or losses resulting from such discontinuance. You agree that we
are not responsible or liable for ensuring uninterrupted availability of any utilities or other services provided by or for you under the
Agreement, except to the extent caused by our gross negligence. You are required to use our existing internet network, provided, you
may use your own firewall, subject to our approval (which cannot be unreasonably withheld). You are solely responsible for all costs for
maintaining, installing and testing your own firewall.
d)
Taxes. The fees you owe to us do not include any Taxes. You are responsible for paying all Taxes associated with the Agreement and the
services we provide except for Taxes assessable on our income or employees. Without limiting the foregoing, you agree to be the seller
with respect to the sale of any food or products sold or distributed out of the Licensed Space and as such, you also agree to be
responsible for the payment of any Taxes for such food or products. If you don’t pay your Taxes (or the government alleges you haven’t
done so), we have the right to immediately terminate the Agreement. You are liable for, and must pay before delinquency, Taxes levied
against any personal facility or trade fixtures placed by you in the Kitchen.
4.
Insurance. We shall maintain commercial general liability insurance and property insurance for the Delivery Hub. You agree to maintain,
during the Term: (a) a commercial general liability insurance policy, in accordance with Insurance Services Office Form CG 00 01, on an
occurrence basis, including protection for your operations, completed operations and personal and advertising injury, covering the Kitchen
and insuring use thereof against claims for injuries, death and property damage occurring on or about the Kitchen, with limits no less than two
million dollars per occurrence; (b) workers’ compensation insurance (with statutory limits if applicable) and Employer’s Liability Insurance with
limits no less than one million dollars per occurrence; (c) food borne illness insurance (with industry standard limits); (d) property insurance in
amounts not less than full replacement cost value of your property and providing such form of protection against risk consistent with
prevailing industry standards for property insurance (with no coinsurance penalty provision), covering the personal property (including any
fixtures or equipment) located within the Delivery Hub (policy must also include loss of business income and extra expense for a minimum of
twelve months); (e) business automobile liability insurance for all owned, non-owned and hired vehicles, including loss of property of others in
your care, as well as the loss of use your property and property of others in your care with limits no less than one million dollars per
occurrence and two million dollars general aggregate; and (f) if we approve for you to sell alcohol out of our space (in writing) and you are
legally permitted to do so, Liquor Liability insurance, of at least one million dollars per occurrence and general aggregate limits of at least two
million dollars. You agree to furnish a certificate of insurance evidencing the above policy limits. All liability insurance maintained by you must
(i) name Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers (and its
mortgagee, if applicable) as additional insured under such policy; (ii) be in a form reasonably satisfactory to us, with an insurance carrier
reasonably satisfactory to us; and (iii) be primary insurance (at least as broad as ISO CG 20 01 04 13). Any insurance or self-insurance
maintained by Licensor, its affiliates and their respective members, officers, directors, officials, employees, contractors, and volunteers, shall
be excess of your insurance and shall not contribute with it. All such insurance is subject to modification or cancellation only upon ten (10)
days’ written notice to each certificate holder. The issuance of any insurance policy required under the Agreement, or the minimum limits
specified in the Agreement with respect to your insurance coverage, will not be deemed to limit or restrict in any way your liability arising
under or with respect to the Agreement. You hereby grant to Licensor a waiver of any right to subrogation which any of your insurers may
acquire against the Licensor by virtue of the payment of any loss under such insurance. You agree to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Licensor has received a waiver of
subrogation endorsement from the insurer.
5.
Confidentiality. Each party agrees to not use the other party’s Confidential Information except as necessary for the performance of the
Agreement and will not disclose the other party’s Confidential Information to any third party except to those of the receiving party’s
employees and contractors who have a need to know such Confidential Information for the performance of the Agreement, provided that
each such employee or contractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms
set forth in the Agreement. You agree that the fact you have entered into the Agreement and are licensing space from us, and the terms of the
Agreement, constitute our Confidential Information. Each party will employ all reasonable steps to protect the other party’s Confidential
Information from unauthorized use or disclosure, including the steps you take to protect its own Confidential Information. The foregoing
obligations will not restrict the receiving party from disclosing the other party’s Confidential Information: (a) pursuant to the order or
requirement of a court, administrative agency, or other governmental body, provided that the receiving party give reasonable notice to the
disclosing party to contest such order or requirement; and (b) to receiving party’s legal or financial advisors, provided the receiving party is
responsible for ensuring such information remains confidential. The receiving party is liable for any breaches of confidentiality by its
employees, contractors, legal or financial advisors.
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6.
Representations and Warranties. Each party represents and warrants as to itself that (a) it has the right to enter into and perform the
Agreement and that the individual signing the Order Form has the right to bind their respective company, and (b) it will not violate any
Applicable Law or obligations to any third party by entering into and performing under the Agreement. You represent and warrant that you
have all permits and licenses required to prepare and sell food and beverage products out of the Licensed Space (including any permits
required for you to prepare food in the Kitchen).
7.
Disclaimers; Limits of Liability
a)
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (i) WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THE AGREEMENT, AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY, CARE, NON-INFRINGEMENT, PERFORMANCE, SUITABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE
HEREBY EXPRESSLY DISCLAIMED, AND (ii) THE LICENSED SPACE AND RELATED SERVICES, THE TECHNOLOGY AND RELATED HARDWARE,
AND ANY OTHER GOODS, SERVICES, OR TECHNOLOGY THAT MAY BE PROVIDED BY US OR OUR PARTNERS HEREUNDER ARE PROVIDED
“AS IS” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF LOSS OR DAMAGE TO YOUR FOOD AND BEVERAGE PRODUCTS. YOU AGREE THAT
NEITHER WE, NOR ANY OF OUR AGENTS, HAVE MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LICENSED SPACE,
THE DELIVERY HUB OR THE TECHNOLOGY, OR WITH RESPECT TO THEIR SUITABILITY FOR THE CONDUCT OF YOUR BUSINESS, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT.
b)
Limits of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE SHALL NOT, AND OUR AFFILIATES SHALL NOT, BE
LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING
CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE
LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY LOSS, COST, DAMAGE OR OTHER LIABILITY THAT RESULTS FROM ANY SCHEDULED OR
UNSCHEDULED DOWNTIME OF THE KITCHEN TECH OR YOUR INABILITY TO ACCESS YOUR KITCHEN. NOTWITHSTANDING ANYTHING TO
THE CONTRARY ELSEWHERE IN THE AGREEMENT, OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT
WILL NOT EXCEED THE MONTHLY LICENSE FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO
THE CLAIM. NOTHING IN THIS SECTION SHALL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL
ACTIVITY.
8.
Indemnification. You agree, at your sole expense, to indemnify, hold harmless and, at our election, defend Indemnitees from and against any
and all losses, costs and expenses of any kind, including reasonable attorneys’ fees, claim, demand or action, incurred by any Indemnitee
arising from or related to: (a) your business, your food and beverage products or your use of Third Party Vendors; (b) your negligence or willful
misconduct; (c) risks against which you are insured or required to be insured against as specified in the Agreement; (d) acts or omissions of
your employees, contractors or any other of your invitees to the Licensed Space; or (e) a breach or alleged breach of the Agreement by you or
your employees. You agree to not settle or otherwise dispose of any third party claim, demand or action against an Indemnitee without our
prior written approval, which shall not be unreasonably withheld.
9.
Term and Termination
a)
Term. The Agreement will begin as of the Effective Date and remain in effect until the end of the later of the Initial Term, Renewal Term
or Continuing Term. Either party may terminate this Agreement by providing a written notice of non-renewal no later than 60 days prior
(“Notice”) to the end of the applicable Initial Term or Renewal Term. If neither party has provided Notice, at the end of the later of the (i)
Initial Term or (ii) Renewal Term (if any), this Agreement shall continue until either party terminates this Agreement by providing at least
sixty (60) notice ("Continuing Term"). For example, if the last day of the Initial Term is July 17 (and there is no Renewal Term) and you
provide 60 days notice on August 1, then the Continuing Term will continue until (and the Agreement will terminate on) September 30.
b)
Termination. A party may terminate the Agreement in the event of a material breach by the other party, provided, such other party is
provided with written notice of such breach and at least 30 days to cure the breach after receipt of such notice. Notwithstanding the
foregoing, in addition, we may terminate the Agreement (including your right to access the Licensed Space) immediately upon written
notice to you if any of the following occur: (i) you fail to make any payments owed to us and fail to cure within 7 days, (ii) you breach
Sections 1(b) or 5 of this Agreement, (iii) you fail to use the Licensed Space within 15 days of the Access Date or communicate that you do
not intend to use the Licensed Space, (iv) you breach the Agreement and the breach involves an illegal, hazardous or dangerous
condition, including your failure (or an allegation that you have failed) to comply with all Applicable Laws, (v) you file for bankruptcy, have
an administrator appointed over your business or assets, pursue a corporate reorganization, corporate voluntary arrangement, or similar,
you make an assignment for the benefit of creditors, are insolvent, or admit you won’t be able to meet your debts as they mature, or (vi)
if any part of the Licensed Space is taken by the exercise of the power of eminent domain.
c)
Effect of Termination. Upon termination or expiration of this Agreement you may no longer access the Licensed Space. Outstanding
payment obligations and Sections 5-13 will survive any termination or expiration of the Agreement. Without limiting our other rights or
remedies, in the event the Agreement is terminated (except for our breach), you forfeit the Refundable One-Time Fee and you will owe
the License Fees for the remainder of the Term.
10. Force Majeure. A “Force Majeure Event” means an event beyond the reasonable control of a party, which prevents the party from complying
with its obligations under the Agreement, including an act of God (fire, earthquake, flood, drought, epidemic, pandemic, etc.), war or other
hostilities, acts or threats of terrorism, strikes or acts of civil disturbance, utility outages, and shortages of materials or labor. In no event shall
either party be considered in breach of this Agreement to the extent its obligations are prevented or delayed, directly or indirectly, by a Force
Majeure Event, and the period of time for performance shall be extended until such event has ended. Notwithstanding anything to the
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contrary, obligations to pay fees owed hereunder shall not be delayed, waived, canceled, or otherwise affected by a Force Majeure Event,
even if you cannot use the Licensed Space due to the Force Majeure Event.
11. Arbitration. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON
AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each
party agrees that any claim or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration
before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for
arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles,
California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be
entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems
proper in the circumstances, only to the extent permitted by the Agreement and Applicable Law, provided that the arbitrator will not have the
authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses.
Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding
between you and Licensor will not be consolidated with any other arbitration proceeding involving Licensor or any other person or entity.
12. Miscellaneous. Any notice or other communication to Licensor under this Agreement shall be in writing and either delivered to the address in
the Order Form in person (effective when received) or by an overnight commercial delivery service (effective one business day after sending).
You agree that we may use the email address on the Order Form to send you notices under this Agreement (effective on the day sent). You
may not assign, convey, delegate, lease, sublet, sublicense or otherwise transfer in any manner this Agreement, or any of your rights,
remedies or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without our prior written consent,
and any purported assignment or transfer by you in violation of this provision is void. We may assign or otherwise transfer this Agreement,
including any of our rights, remedies or obligations, in whole or in part, at any time. The Agreement will be binding upon each party and its
successors and permitted assigns. We may subcontract any of the services in our sole discretion. The Agreement may only be modified,
supplemented or amended in a writing signed by both parties. No failure or delay by a party in exercising any right, power, or privilege under
the Agreement will operate as a waiver hereunder. The invalidity or unenforceability of any provision of the Agreement will not affect the
validity or enforceability of any other provision of the Agreement, all of which will remain in full force and effect. This Agreement shall be
governed by the laws of the State of California, without regard to its choice of law rules. Subject to the section entitled “Arbitration” above,
the parties agree that any dispute arising from or related to the Agreement must be resolved exclusively in Federal or State courts located in
Los Angeles County, California. The Agreement contains the entire understanding of the parties regarding its subject matter, and supersedes
all prior and related contemporaneous agreements and understandings between the parties. When used herein, the term “including” shall be
deemed to mean “including, without limitation”.
13. Definitions.
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
“Access Date” means the estimated date you will be able to access your Kitchen (your actual first day of access may be pushed back or
moved up due to inspection, construction, cleaning or various other delays).
“Applicable Laws” means applicable federal, state, local, or other laws, rules, regulations, ordinances, or similar, including all applicable
health and safety and employment and labor laws.
“Changes” means any alterations, modifications, changes, or improvements to the Licensed Space made by either you or us.
“CPI Increase” means the increase in the Consumer Price Index (CPI-U, All Urban Consumers, U.S. City Average, 1982/84=100) over the
Base Index. The Base Index is that value published immediately prior to the Access Date.
“Confidential Information” means information or materials that: (a) are disclosed in writing or orally and are either marked or identified
as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (b) the receiving party knows or has reason to know,
by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing,
product and financial information, in any form or format; provided, however, that Confidential Information does not include information
that: (i) is in or enters the public domain through no act or omission of the receiving party; (ii) a party lawfully received from a third party
without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (iii) a party
knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or (iv) a
party independently developed without use of, or access to, any Confidential Information.
“Indemnitees” means Licensor and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers,
shareholders, members, and representatives, and our other space licensees and their employees and contractors.
“Kitchen Tech” means the proprietary technology platform (including all related software, services and hardware) provided by our
partner, which facilitates the Processing Services and enables interaction with Third Party Vendors while in the Licensed Space. Your use
of the Kitchen Tech is subject to the terms of use available at https://www.tryotter.com/documents/legal/us/tou/kl-073120
“Orders” means orders for the delivery of food and beverage products placed by the end users of Third Party Vendors apps, websites or
other means for ordering.
“Permitted Use” means the storing, preparing and packaging of your food and beverage products for delivery to your customers to fulfill
Orders in the ordinary course of your restaurant and/or catering business.
“Taxes” means taxes, levies, duties or other similar government assessments of any nature, including value added, sales and use, or
withholding taxes.
“Third Party Vendors” means third party delivery service platforms, point of sale vendors, online ordering platforms and/or other third
party vendors or service providers that you may elect to use.
l)
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14. Beta Products. We are constantly looking to evolve and create new products and services to make your use of the licensed Kitchen more
efficient. As such, we developed new beta products and services (collectively, “Beta Products”) which you can use in accordance with the
terms below. Orders placed via the new Beta Products shall be included within the definition of Orders, and as such, all other terms in the
Agreement shall apply to your use of these services and these Orders. The following outlines the Beta Products that may be made available.
a) Flipdish Kiosk and Online Ordering. In the Delivery Hub, we may allow the public to access the Delivery Hub and place orders via a kiosk
(“Kiosk”) and/or through an online ordering portal (“Web Platform” together with Kiosk “Digital Platform”). You agree to offer your
merchandise and products for purchase via the Digital Platform. The public may be able to place orders via the Digital Platform for brands
owned and operated by you or also brands owned and operated by us (if you’ve signed an agreement to comanage Future Foods brands).
i) Please note that the Digital Platform services are provided in partnership by Flipdish. To use the Digital Platform, you must
accept and agree to Flipdish’s terms and conditions, which may be accessed when you sign on and access the Digital Platform.
ii) For each Order made through the Digital Platform, in addition to the Processing Fee in the Kitchen Services Agreement or any other
Flipdish specific fees, you agree to pay the additional fees outlined below:
(1) Program Fee of 4% of the Total Order, and
(2) Credit Card Processing Fee of 2.9% of the Total Order plus the applicable sales tax.
iii) You hereby grant us and our affiliates a worldwide, royalty-free, non-exclusive license to use Your IP for the purpose of providing the
Digital Platform services. You will retain ownership of Your IP at all times. “Your IP” means your restaurant names, trademarks, other
identifying indicators, your menu descriptions and pictures, and any marketing assets you provide us to help market your products.
iv) You agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Digital Platform Data
(defined below), except as required to fulfill the food or product order and as otherwise required to perform your obligations and
services under the Agreement. If you become aware of any unauthorized access to Digital Platform Data, you agree to immediately
notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably
requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us
and will be responsible for damages resulting from your failure to comply. You will be responsible for damages resulting from
sharing your login credentials with unauthorized third parties or otherwise permitting unauthorized access to your account. You may
not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the
source code of the Digital Platform; damage, destroy or impede the services provided through the Digital Platform; transmit
injurious code; or bypass or breach any security protection on the Digital Platform. Digital Platform Data shall mean any information
that we provide or make accessible to you through the Digital Platform, including without limitation any personal information.
“Digital Platform Data” shall mean any information that we provide or make accessible to you through the Digital Platform,
including without limitation Personal Information. “Personal Information” means information that identifies, relates to, describes, is
reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or
household.
v) In using the Digital Platform, you agree to: (i) continuously update your in-store menu, including the price of each item on such
menu; (ii) continuously monitor your menu and store information on the Digital Platform, promptly make updates to reflect the
most up-to-date products, pricing and other information or immediately notify us of any errors or changes in writing; (iii) accept all
food or product orders placed from your then-current menu; (iv) prepare the orders for customer pickup at the designated time; (iv)
process in the order in which they are received; (v) continuously update the pricing, availability, description, or other characteristics
of the food or products; (vi) notify us if you closes earlier than your standard hours of operation or plans to close earlier than your
standard hours of operation; provide the same utensils, napkins, bags and other materials that you would typically provide in a
standard take-out or delivery order; and (vii) on an ongoing basis, review and confirm the transactions, fees and charges on orders
via the Digital Platform, and promptly communicate to us and Flipdish of any inaccuracies.
vi) YOU ACKNOWLEDGE THAT FLIPDISH IS PROVIDING THE DIGITAL PLATFORM SERVICES, INCLUDING THE COLLECTION AND
DISBURSEMENT OF FEES AND PAYMENTS. YOU HEREBY WAIVE, RELEASE AND DISCHARGE FOREVER FULLY AND UNCONDITIONALLY
RELEASE US, AND OUR AFFILIATES, AGENTS, REPRESENTATIVES, SUBSIDIARIES FROM ALL DAMAGES, CLAIMS, CAUSES OF ACTION,
LOSSES, DEMANDS, JUDGEMENTS, ATTORNEYS’ FEES ARISING FROM OR RELATED TO YOUR USE OF A BETA PRODUCT OR ANY
ACTIONS OR INACTIONS OF FLIPDISH OR ANY OTHER THIRD PARTY PROVIDER THAT PROVIDES SERVICES UNDER THE DIGITAL
PLATFORM. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF
SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS
FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
b) Notwithstanding anything to the contrary, we may modify or discontinue the Beta Products at any time, and we can suspend or
terminate your use of the Beta Products at any time with or without notice to you. You agree that we may unilaterally modify the
terms and conditions (including fees owed by you) regarding the use of the Beta Products. In such an event, we will provide you with
at least thirty (30) days notice of any modification. By continuing to use the Beta Products, you agree to such modification.
c) The Beta Products may contain features, functionality or modules that will not be included in the final production version of the Beta
Products, if released, or that will be marketed separately for additional fees. You expressly agree that we do not have an obligation to
ensure the Beta Products function properly or at all. You hereby release Indemnitees for any losses, claims (known or unknown),
expenses, or liability resulting from your use of the Beta Products. Further, you agree to indemnify, defend and hold Indemnitees
harmless for any losses (including, without limitation, losses incurred in connection with any claims) arising from or related to your use of
the Beta Products. This obligation shall survive any termination or expiration of the Agreement. YOUR USE OF THE BETA PRODUCTS IS AT
YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY
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ARISING OUT OF OR RELATED TO YOUR USE OF THE BETA PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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New Jersey - Belleville
Order Form for Kitchen Services
This Order Form for Kitchen Services (“Order Form”), along with the Kitchen Services Terms and Conditions, available as of the Effective Date at
https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the Order Form upon signature (“Terms and
Conditions”), together form an agreement between the Licensor and Customer identified below (“Kitchen Services Agreement” or “Agreement”).
Capitalized terms not defined in this Order Form shall be as defined in the Terms and Conditions. In this Agreement, “you” means Customer and
“we” or “us” means Licensor.
Licensor Information:
Name:500 Cortlandt Street BEL LLC
, a Delaware limited liability company
Address for Notices: 777 S. Figueroa Street, Floor 41, Los Angeles, California 90017
Contact: Limited Liability Company Manager
Email: sales@cloudkitchens.com
Phone: (888) 419-5458
Delivery Hub Address: 500 Cortlandt st, Belleville NJ, 07109
Customer/Licensee Information:
Sole Proprietorship
Name: Soul Kitchen
,a
20
Howard
Drive,
Apt
V,
Bergenfield
NJ, 07621
Address for Notices:
Zena
Powell
Contact:
Email: teoteojohnson@outlook.com
5512753771
Phone:
EIN: 121608951
Licensed Space:
1 kitchen(s) in the Delivery Hub (“Kitchen(s)”), along with any designated storage racks (subject to separate fees) outside of the Kitchen(s) and
including certain Delivery Hub common areas as designated by us from time to time (e.g., break rooms, etc.). The Kitchen is “as is” and built out in a
similar manner to other kitchens in the Delivery Hub. Any Changes (i) shall be outlined in a separate improvements agreement provided by Licensor
and (ii) must be approved by Licensor and paid for by Customer as further set forth in the Terms and Conditions. You are still responsible for
beginning payment on the License Fee Start Date whether or not your access is delayed because of the Changes. The maximum amps per Kitchen is
up to 60 amps.
Important Dates:
Term: Period from Effective Date until the expiration of the Initial Term, Renewal Term(s) (if any) or any Continuing Term, whichever is later.
Access Date: 2021-09-01
Effective Date: Date of last signature below
Initial Term: 12
Customer Fees:
Payment Method:
License Fee:
Processing
Services Fee:
Storage Services
Fee:
Operating
Expenses:
Refundable OneTime Fee:
Setup Fee:
Beta Products
Fees:
months beginning on License Fee Start Date
License Fee Start Date: 30
days after the Access Date, provided your
Operating Expenses and Storage Services Fees begin on the Access Date.
X Credit Card (as primary)
n/a
[__] ACH
[__] EFT
[__]
[__] Credit Card (for backup)
[__] Other [_________
]
$ 3600.00
per month ($ 3600.00
per Kitchen), starting on the License Fee Start Date. License Fee will be
increased on each anniversary of the Access Date by the greater of (a) 3% or (b) the CPI Increase (defined in the Agreement).
3% of the Total Order as defined in Section 1(b)(i).
The specific fees vary depending on the number of racks and type of storage you wish to use (freezer, dry, etc) and will be set
out in the Kitchen Rules or communicated to you by email. Parties shall agree in writing (email sufficient) as to the number of
racks and type from time to time.
$ USD 1800.00 Plus electricity
per month ($ 1800
per Kitchen), as
Customer’s portion (estimated) for utilities and shared services. The Operating Expenses commence on the Access Date.
$ 7200.00
, due upon the Effective Date. If you fail to pay us the Refundable One-Time Fee on the Effective
Date, we can immediately terminate this Agreement by providing you with email notice. You will not be allowed to access
the Licensed Space if you have not paid the Refundable-One Time Fee. Return of your Refundable One-Time Fee is subject
to Section 3(b).
$ .00
, due prior to the Access Date. The Setup Fee is a one-time and nonrefundable fee used to cover our
setup costs.
Some Delivery Hubs are equipped with the Digital Platform. If available and you use the Digital Platform you shall pay a
Program Fee of 4% of the Total Order, and a Credit Card Processing Fee of 2.9% of the Total Order as further described in
Section 14 (in addition to the Processing Services Fee). You may terminate your use of (or opt back into) the Digital Platform
by providing three (3) days written notice to Licensor or by checking this box X
Kitchen Tech:
You are required to use the Kitchen Tech in your Kitchen to ensure efficient operations at the Delivery Hub (e.g. so we can provide the Processing
Services). The Kitchen Tech allows you to aggregate your orders from the following online ordering services for no additional fee: UberEats,
DoorDash, Grubhub, and Postmates. Additional integrations (including with a point of sale or direct to consumer website) requires additional fees.
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Other Terms:
During the first three months of the Initial Term, Customer shall receive a 50%
discount off the License Fee.
We strive to enable your access to the Licensed Space on the access date. You
acknowledge however, that the Licensed Space may not be available on the Access
date due to inspections, construction, cleaning or various other delays. In
such an event, we will notify you of your adjusted access date.
By signing below, each party confirms that it has read and hereby agrees to the terms set forth in this Agreement (including the Terms and
Conditions available as of the Effective Date at https://www.cloudkitchens.com/documents/legal/us/ksa/ksa070921.pdf, and to be attached to the
Order Form upon signature). The parties agree that electronic signatures shall have the same effect as originals. If there is any conflict between this
Order Form and the Terms and Conditions, this Order Form shall prevail. The parties have executed this Agreement as of the date of the last
signature below:
Licensor:
Customer:
By: _________________________________________________
Marcel Comtois
Printed Name: ________________________________________
By: _______________________________________________
Zena L. Powell
Printed Name: ______________________________________
General Manager
Title: ________________________________________________
July 30, 2021
Date: ________________________________________________
Zena L. Powell General manager
Title: ______________________________________________
July 27, 2021
Date: ______________________________________________
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EXHIBIT
D
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TIMESTAMP_UTC_TIME TIMESTAMP_UTC_DATE TIMESTAMP_LOCAL_TIME
8:27 PM
12:27 AM
10/12/2021
1:57 AM
10/12/2021
9:57 PM
2:24 AM
10/12/2021
10:24 PM
10:41 PM
2:41 AM
10/12/2021
1:53 AM
10/15/2021
9:53 PM
4:42 PM
10/16/2021
12:42 PM
9:11 PM
1:11 AM
10/17/2021
9:24 AM
10/21/2021
5:24 AM
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TIMESTAMP_LOCAL_DATE PAYOUT_TIME PAYOUT_DATE STORE_ID BUSINESS_ID
10/21/2021 2387244
947313
10/11/2021
9:24 AM
10/11/2021
9:24 AM
10/21/2021 2387244
947313
10/11/2021
9:24 AM
10/21/2021 2387244
947313
10/21/2021 2387244
947313
10/11/2021
9:24 AM
10/14/2021
9:24 AM
10/21/2021 2387244
947313
10/16/2021
9:24 AM
10/21/2021 2387244
947313
10/21/2021 2387244
947313
10/16/2021
9:24 AM
10/21/2021
9:24 AM
10/21/2021 2387244
947313
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STORE_NAME
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
The Soul Kitchen (Cortlandt St)
TRANSACTION_TYPE
DELIVERY
DELIVERY
ERROR_CHARGE
DELIVERY
DELIVERY
ADJUSTMENT
DELIVERY
PAYOUT
TRANSACTION_ID
1f05224c-8086-4bde-b2ca-945069943a31
c5cc64c8-6dc3-4019-981c-a1135314bbde
301087559
6a4f96d5-270f-4a62-a087-4d98f24fafaf
0464a773-627a-41ff-98ee-e4a428d5cd60
303435029
d6743816-03a0-472c-b70e-984ea9613f00
178093571
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DOORDASH_ORDER_ID
69943a31
5314bbde
5314bbde
f24fafaf
28d5cd60
5314bbde
a9613f00
NULL
DESCRIPTION
Order Received Time: 2021-10-11
Order Received Time: 2021-10-12
Issue: 1 Fried Fish Dinner missing
Order Received Time: 2021-10-12
Order Received Time: 2021-10-15
merchant_payment_adjustment
Order Received Time: 2021-10-17
NULL
FINAL_ORDER_STATUS
Delivered
Delivered
Delivered
Delivered
Delivered
Delivered - Paid
Delivered
N/A
CURRENCY
USD
USD
USD
USD
USD
USD
USD
USD
Case 2:21-cv-20456-CCC-ESK Document 3 Filed 12/17/21 Page 155 of 182 PageID: 175
7.3
8.8
NULL
NULL
8
7
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Invoice
BILL T O
S o ul Kit ch e n
IT EM
BILL FROM
In v o ice Numb e r
5 0 0 C ORT LA NDT S T REET BEL LLC
Dat e is s ue d
2021 -07-27
500 Cort landt St
Belleville, NJ, 071 09
Due Dat e
2021 -07-28
C ur r e n cy
USD
4ad45
Q UA NT IT Y
UNIT P RIC E
T OT A L P RIC E
1
$7,200
$7,200.00
Refundable One T ime Fee
S ub t o t al
$7,200.00
T o t al
$7,200.00
Please pay your invoice by visit ing
manager.t ryot t er.com/billing or by using t he following bank
det ails for bank t ransfers (wire or ACH)
QUEST IONS?
If you have any quest ions regarding billing, please email us at
billing@cloudkit chens.com.
Ba nk Na m e
Routing Num ber
Account Num ber
S WIFT Code
WELLS FARGO BANK, N.A.
12100024 8
4 063019576259854 0
WFBIUS 6S
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Invoices
Invoice #92e96
Invoice #92e96
Reports
Download
Order history
Locations
CloudKitchens • Billing period October 2021
Integrations
$3,744.55
Paid
Payments
VISA ****3551
Oct 26, 2021
-$3,744.55
Paid
Location
500 CORTLANDT STREET BEL LLC
500 Cortlandt St
Belleville, NJ 07109
Member
Soul Kitchen
Announcements
Pay manually via wire transfer
2
Order manager
Billing
Support
Settings
11/30/2021, 2:46 AM
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Items
License Fee - Base
$3,600.00
Reports
Health Permit
$300.00
Order history
Operating Expenses (Fixed)
$2,000.00
Locations
Integrations
Credits
Expense - Concession (ROE)
Subtotal
-$2,264.51
$3,635.49
Carry over balance
$0.00
Credit Card Processing Fee (3%)
$109.06
Total Due
$3,744.55
Payments
-$3,744.55
Remaining balance
$0.00
Please reach out to billing@cloudkitchens.com with any questions.
Announcements
2
Order manager
Billing
Settings
11/30/2021, 2:46 AM
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FTC Report Number
142363557
Consumer Report To The FTC
The FTC cannot resolve individual complaints, but we can provide information about next steps to take. We share your report
with local, state, federal, and foreign law enforcement partners. Your report might be used to investigate cases in a legal proceeding.
Please read our Privacy Policy to learn how we protect your personal information, and when we share it outside the FTC.
About you
Name: ZENA POWELL
Email: TEOTEOJOHNSON@OUTLOOK.COM
Address: 20 Howard Davis Dr APT. V
Phone: 551-275-3771
City: BERGENFIELD State: New Jersey Zip Code: 07621
Country: USA
What happened
ON JULY 22, 2021 I ENTERED I BEGAN A RELATIONSHIP WITH CLOUD KITCHENS VIA A ZOOM SALES CALL FOR ME TO EXPLORE
MY OPTIONS OF OWNING A FOOD SERVICE BUSINESS. THE CALL WAS SET UP WITH GEORGIA MORHBACHER AND ON THE
CALL TWO OTHER REPRESENTATIVES FROM CLOUD WERE PRESENT FROM THE ONBOARDING TEAM. I ALSO HAD MY SON TEO
POWELL, JANICE JENNINGS, AND TEO JOHNSON PRESENT FOR THE ZOOM SALES CALL SO THEY COULD DECIDE AS A FAMILY
IF THEY WOULD BE ASSISTING ME IN THIS BUSINESS VENTURE. ON THE CALL I HAD A LAUNDRY LIST OF QUESTIONS THAT I
WENT OVER WITH GEORGIA INQUIRING ABOUT THE SERVICES AND GETTING TO NITTY-GRITTY OF THE COST MONTHLY TO
ENTER INTO ANY OF THEIR KITCHENS. SHE THEN STATED TO ME IT WOULD BE $5500.00 MONTHLY FOR THE KITCHEN AND I
STATED THEN IT WOULD NOT BE WORTH IT TO ME TO DO THAT FOR A 200 SQUARE FOOT KITCHEN AND WE HAVE NOT EVEN
HIRED STAFF THAT BRICH AND MORTAR COST PER MONTH IS $3700.00 MONTHLY AND SO I WOULD HAVE TO DECLINE THIS
OFFER AND THEN SHE BEGAN TO EXPLAIN THAT THERE ARE A NUMBER OF SERVICES PROVIDED INCLUDED IN THIS COST IT IS
NOT JUST THE MONTHLY COMMERCIAL LEASING PAYMENT BUT NIGHTLY CLEANING OF MY KITCHEN IS INCLUDED, MENU
CREATION AND MARKETING ASSISTANCE, DELIVERY PLATFORM ONBOARDING ASSISTANCE AND MANAGEMENT, WEEKLY
HOOD CLEANING SERVICES, OIL DISPOSAL, AND THE REQUIRED STORAGE FOR ANY RESTAURANT TO OPERATE WITHIN THE
SAFETY REQUIREMENTS ALONG WITH ONSITE SECURITY AND FOOD RUNNERS. THE OTHER REPRESENTATIVES CONFIRMED
THIS AND I WENT INTO ASK DETAIL OF WHAT NIGHTLY CLEANING INCLUDED AND SHE STATED AGAIN OF MY KITCHEN AFTER
THE END OF EACH DAYS BUSINESS CLEANING STAFF WILL COME IN AND CLEAN MY KITCHEN BECAUSE I AM DISABLED I KNEW
I COULD NOT AFFORD TOHIRE STAFF INITIALLY SO IF THIS WAS NOT THE CASE THEN AGAIN I WOULD NOT BE ABLE TO ENTER
INTO THIS CONTRACT AND IF ANYTHING OTHER THEN THIS SHOULD TAKE PLACE IT WOULD BECOME A LEGAL ISSUE FOR ME
BECAUSE I AM INFORMING YOU I AM DIABLED AND THIS WOULD CAUSE BOTH FINANCIAL AND PHYSICAL HARDHSIP HEALTH
WISE. SHE THEN STATED TO ME NO ITS INCLUDED AND THERE ARE NO OTHER ADDITIONAL COST BUT IF I TOOK THE DEAL
NOW SHE WOULD GUARANTEE ME THE RATE OF 50% OFF AND THAT MY EXPENSE WOULD ONLY BE A FLAT FEE OF $3600. PER
MONTH UNTIL JANUARY 2022. AFTER SIGINING ON 7/24/2021 I IMMEDIATELY RECEIVED A BILL FOR $7200 AND BEGAN THE
ONBOARDING PROCESS. WHERE I SHORTLY LEARNED THAT THEY ACTUALLY DID NOTHING FOR ME BUT SEND INSTRUCTIONS
ON WHAT TO DO MYSELF WHICH I ALREADY KNEW FROM RUNNING OTHER BUSINESSES. IT WAS THE FIRST SIGN OF BREACH
AND BAIT AND SWITCH AS TIME WENT ON THEY TOOK THE MENU I SENT THEM FOR UPLAODING MULTIPLE TIMES AND
LAUNCHED MY BRAND PRIOR TO ME APPROVING THE LAUNCH DATE ON DOOR DASH AND I WAS ALREADY RECEIVING
ORDERS WHEN I WAS NOT YET IN POSSESSION OF THE SPACE I PAID TO OBTAIN. I DID NOT TAKE POSSESSION OF THE SPACE
UNTIL SEPTEMBER LATE TO BE EXACT 9/9/2021 WHERE I MET HADIYAH FOR THE FIRST TIME AND WAS NOTIFIED THAT
STORAGE IS A SEPARATE FEE OF 250 PER RACK WHICH IS A SEPARATE FEE OUTSIDE OF THE MONTHLY FEES WHICH IF I AM
ALREADY PAYING OPERATIONAL FEES FOR THE ENTIRE FACILITY SHARED THEN I AM ALREADY PAYING FOR THE SAME
STORAGE SPACE YOU ARE STATING IS SEPARATE FROM THE MONTHLY OPERATIONAL AND LICENSING FEES. I THEN EMAILED
THEM ABOUT THE LAUNCH DATE AND OPERATIONAL COST BILL RECEIVED FOR SEPTEMBER OF $1098.67 AND I WAS NOT IN
THE BUILDING HAD NO EQUIPMENT THERE AT ALL BUT RECEIVED AN INVOICE FOR SEPTEMBER WHICH I STATED THEY WERE
11/30/2021, 5:24 AM
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NOT SUPPOSE TO DO.
How it started
Date fraud began:
Amount I was asked for:
Amount I Paid:
10/26/2021
$12,259.22
Payment Used:
How I was contacted:
Debit Card
In Person
Details about the company, business, or individual
Company/Person
Name:
CLOUD KITCHENS
Address Line 1:
777 TOWER 777 FIGUEROA ST
Address Line 2:
SUITE 4100
City:
LOS ANGELES
State:
California
Zip Code:
90017
Country:
USA
Email Address:
GEORGIA.MORHBACHER@CLOUDKITCHENS.COM
Phone:
888-419-5458
Website:
https://cloudkitchens.com
Name of Person You Dealt With:
GEROGIA MORHBACHER
Your Next Steps
If you paid a scammer with a credit or debit card:
• File a dispute (also called a “chargeback”) with your credit or debit card company.
◦ Online: Log onto your credit or debit card company's website and go through the company's dispute process.
◦ By phone: Call the phone number on the back of your card and tell them why you're filing a dispute.
• Follow up with a letter to your credit or debit card company. To protect any rights you may have, follow up in writing by
sending a letter to the address listed for billing disputes or errors. Use our sample letter.
• Save your records. Keep any letters, notes, or emails related to the scam - they could help prove you're entitled to a refund if
the credit or debit card company has any questions.
• Find out your rights at ftc.gov/credit.
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Scam Advice:
• Learn more about different scams and how to recover from them at
ftc.gov/scams.
• You also can file a report with your state attorney general.
What Happens Next
• Your report will help us in our efforts to protect all consumers. Thank You!
• We can't resolve your individual report, but we use reports to investigate and bring cases against fraud, scams, and bad
business practices.
• We share your report with our law enforcement partners who also use reports to investigate and bring cases against fraud,
scams, and bad business practices.
• We use reports to spot trends, educate the public, and provide data about what is happening in your community. You can check
out what is going on in your state and metro area by visiting ftc.gov/exploredata .
• Investigations and cases do take time, but when we bring cases, we try to get money back for people. Check out
ftc.gov/refunds to see recent FTC cases that resulted in refunds.
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December 8, 2021
Soul Kitchen
20 Howard Drive, Apt V.
Bergenfield, NJ 07621
Attn.: Zena Powell
VIA EMAIL - teoteojohnson@outlook.com
Re: Termination of Kitchen Services Agreement
Dear Ms. Powell:
Please be advised that the Kitchen Services Agreement (“Agreement”) between 500 Cortlandt St
BEL LLC, a Delaware limited liability company (“Licensor”), and Soul Kitchen (“Licensee” or “You”),
pertaining to a limited license to use and occupy kitchen space (“Licensed Space”), is terminated
effective immediately.
While You have continuously asserted that Licensor is not allowed to license commercial space,
Licensor can do so and You are subject to the licensing contract you signed. Your refusals to pay for
services do not allow you to use Licensor’s services without payment. Unfortunately, You are in material
breach of the Agreement because of non-payment of Your past due balance of $4,620.23 for fees
through November 2021.1 As You know, You have also rejected Licensor’s prior proposal for payment in
installments. Per Section 9(b)(i) of the Agreement, Licensor is terminating the Agreement, including Your
right to access the Licensed Space, due to non-payment. The Agreement’s first page states that the
Refundable One-Time Fee is subject to Section 3(b). Section 3(b) of the Agreement entitles Licensor to
retain Your Refundable One-Time Fee under these circumstances. Licensor will apply this amount to
Your outstanding balance.
All remaining equipment and property belonging to You is required to be immediately removed.
The equipment and other property needs to be picked up between 9AM-5PM, by no later than
December 17, 2021, otherwise, it will be deemed abandoned. After this date, You will no longer be
allowed access to the facility or the Licensed Space without our express consent. Licensor does not have
space to store Your equipment if You refuse to pick it up. Please contact me immediately to coordinate
the pickup of any additional equipment and other property belonging to You.
As You have stated multiple times that You intend to bring legal action because You do not
believe a company can license the use of property, please be advised that all legal disputes must be
brought in arbitration, as stated in Section 11 of the Agreement.
The foregoing is neither intended nor should it be construed as an exhaustive statement of the
facts and matters at issue. Licensor reserves all of its legal and equitable claims, rights, defenses, and
remedies. Thank You for Your attention to this important matter.
Sincerely,
/s/
Kira Sergacheva
kira.sergacheva@cloudkitchens.com
Operations Manager
Please note that Licensor may assess to You any applicable additional fees, including cleaning fees and fees for any
damages to the Licensed Space.
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