THIS AGREEMENT GOVERNS YOUR PURCHASEAND USE OF MENUSIFU SYSTEM AND SERVICES.
BY ACCEPTING THIS AGREEMENT, BYCLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THATINCORPORATES THESE TERMS AND CONDITIONS OR BY USING ANY MENUSIFU SYSTEM OR SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE BY MENUSIFU, INC. (“MENUSIFU”), YOU (ASDEFINED IN EACH ORDER FORM) AGREE TO THE TERMS AND CONDITIONS OF THISAGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OROTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITYAND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS"YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITSAFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITHTHESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USEMENUSIFU SYSTEM OR SERVICES.
MENUSIFU RESERVES THE RIGHT AT ALLTIMES TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR OF ANY OFSERVICES WITH OR WITHOUT ANY PRIOR NOTICE TO YOU. ANY SUCH CHANGE WILL BECOMEEFFECTIVE AND BINDING ON THE YOU ONCE IT IS PUBLISHED ON ITS WEBSITE ORNOTIFIED TO YOU, IRRESPECTIVE OF YOUR ACTUAL KNOWLEDGE THEREOF. YOU ARESTRONGLY ADVISED TO VISIT OUR WEBSITE PERIODICALLY TO ENSURE YOUR UNDERSTANDINGTHE UPDATES AND CHANGES. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, ASAMENDED, YOU SHOULD DISCONTINUE YOUR USE OF MENUSIFU SYSTEMS AND SERVICESIMMEDIATELY AND CONTACT US TO EFFECTUATE YOUR TERMINATION. UNTIL THEEFFECTIVENESS YOUR TERMINATION FOR USE OF MENUSIFU SYSTEMS AND SERVICES, YOU ARESUBJECT TO THE PROVISIONS OF THIS AGREEMENT THEN IN EFFECT.
You may notaccess MenuSifu System or Services if you are MenuSifu’s direct competitor,except with MenuSifu’s prior written consent. In addition, you may not accessthe MenuSifu System or Services for purposes of monitoring their availability,performance or functionality, or for any other benchmarking or competitivepurposes.
“Agreement” means this Master ServicesAgreement.
“Affiliate” means any entity that directly orindirectly controls, is controlled by, or is under common control with thesubject entity. "Control," for purposes of this definition, meansdirect or indirect ownership or control of more than 50% of the votinginterests of the subject entity. You agree to confirm the Affiliate status ofan entity upon request by MenuSifu. In the event an Affiliate ceases to complywith this definition, this Agreement will terminate solely as it relates to theformer Affiliate in accordance with the termination provisions in Section 14.
“Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party,whether orally or in writing, that is designated as confidential or thatreasonably should be understood to be confidential given the nature of theinformation and the circumstances of disclosure. Your Confidential Informationincludes Your Data; MenuSifu’s Confidential Information includes MenuSifuSoftware, MenuSifu System, Services and Documentation; and ConfidentialInformation of each party includes the terms and conditions of this Agreementand all Order Forms (including pricing), as well as business and marketingplans, technology and technical information, product plans and designs, andbusiness processes disclosed by such party. However, Confidential Informationdoes not include any information that (i) is or becomes generally known to thepublic without breach of any obligation owed to the Disclosing Party, (ii) wasknown to the Receiving Party prior to its disclosure by the Disclosing Partywithout breach of any obligation owed to the Disclosing Party, (iii) isreceived from a third party without breach of any obligation owed to theDisclosing Party, or (iv) was independently developed by the Receiving Party.
“Content” means information obtained byMenuSifu from publicly available sources or third-party content providers andmade available to you through the MenuSifu System or pursuant to an Order Form,as more fully described in the Documentation.
“Developed Software” means the software programs or modifications to the MenuSifu System developed by MenuSifu for you per your specific requests includingobject code and source code (if any) for such DevelopedSoftware andany related Documentation. MenuSifu shall own all rights, title and interest inany Developed Software.
“Disclosing Party” means the party disclosingConfidential information.
“Documentation” means all on-line and paper helpmaterial and all of the user, technical, and training guides (in whatever media)associated with the MenuSifu System and made available to you. Documentationshall be accurate in all material respects but shall be subject to amendmentfrom time to time to conform with functionality contained in new releases ofthe MenuSifu Software.
“Force Majeure Event” means anyact of God, a natural disaster such as earthquake, flood, embargo, riots,sabotage, utility or transmission disruption, fire or any other similar eventbeyond such party’s control, or actions or decrees of governmental bodies notthe fault of the affected party.
“Hardware” means any hardware products of theMenuSifu System, including any hardware and accessories ordered by you andprovided to you by MenuSifu under an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to doharm, including, for example, viruses, worms, time bombs and Trojan horses.
“Maintenance Services” means the support and maintenance services provided byMenuSifu to you pursuant to this Agreement and your Order Form(s).
“MenuSifu Software” means the computer programming code (including objectcode and any source code) for a software program or functionality that iseither installed on Hardware provided by MenuSifu or made available by MenuSifu(including associated MenuSifu Web-based, offline or mobile components).MenuSifu Software includes but is not limited to Software Updates, SoftwareUpgrade and Developed Software but excluding Content and Non - MenuSifuSoftware.
“MenuSifu System” means the MenuSifu Software together with the Hardware thatare purchased by you directly from MenuSifu under an Order Form and provided toyou by MenuSifu. MenuSifu System does not include Content and Non-MenuSifuSoftware.
“Non-MenuSifu Software” means a Web-based, mobile, offline or other softwareprocess or functionality that is provided by you or a third party andinteroperates with MenuSifu System, including, for example, an application thatis developed by or for you, or the software delivered with the MenuSifu Systembut which require you to agree to a separate license with a third party (suchas a "pop up", "shrink wrap", "click" or otherlicense) prior to your use.
“Order Form” means an ordering document, in either electronic or writtenform, specifying the MenuSifu products and/or services to be provided hereunderthat is entered into between you and MenuSifu or any of MenuSifu Affiliates,including any addenda and supplements thereto. By entering into an Order Formhereunder, you agree to be bound by the terms of this Agreement as if it werean original party hereto.
“Other Services” means all technical and non-technical services performedor delivered by MenuSifu, including, without limitation, integration services,process services, payment services, implementation services and otherprofessional services, training and education services not otherwise definedunder this Agreement . Other Services will be provided on a time and materialbasis at such times or during such periods, as may be specified in your OrderForm(s) and mutually agreed to by the parties.
“Receiving Party” means theparty receiving Confidential information.
“SaaS Services” refers to the specific MenuSifu’s internet-accessibleservice identified in your Order Form(s) that provides use of MenuSifu Softwarethat is hosted by MenuSifu or its service provider and made available to youover a network on a term-use basis.
“Services” means any SaaS Services, theMaintenance Services or Other Services you purchase or subscribe under an OrderForm and provided by MenuSifu upon your payment of such services.
“Software Update” means a relatively minor release or version upgrade to anexisting MenuSifu Software that adds minor features or corrects bugs.“Software Upgrade” means anew version of the existing MenuSifu Software that offers a significant changeorimprovement over the current versionand can be purchased via a new Order Form.
“User” means your customers, employees,representatives, consultants, contractors or agents who are authorized to useMenuSifu System and/or the Services permitted by you or on your behalf. To theextent necessary, each User must complete training and qualificationrequirements reasonably required by MenuSifu.
“Your Data” means any data, information or material originated by youthat you submit or provide in the course of using the MenuSifu System or theServices.
“Your System” means a deployment server utilized to install and/or deploythe MenuSifu Software or MenuSifu System by you or MenuSifu at your request,and your personal computers (including operating system), network computers,iPads, Windows terminals and other similar hardware or display devices used byUsers to access and use the MenuSifu System.
2. LICENSE GRANT.
Subjectto the terms and conditions in this Agreement, MenuSifu grants to you anon-exclusive, non-transferable, worldwide license to access and use theMenuSifu Software either installed on Hardware provided by MenuSifu or fordownload directly or through a third party and/or a website for use of theMenuSifu System indicated in any Order Forms executed from time to time by theparties. When you download or use any MenuSifu Software, you agree that youwill use the MenuSifu Software only for the purposes of the MenuSifu System.MenuSifu represents that it possesses all rights and interests in the MenuSifuSystem necessary to enter into this Agreement. You have the right to use onlythe MenuSifu System selected on any Order Form to this Agreement and shall haveno right to use any other MenuSifu System that are delivered to you but notselected and expressly licensed hereunder.
You will not directly or indirectly:(i) make any MenuSifu System or Documentation or Content available to anyoneother than your Users, or use any MenuSifu System or Documentation or Contentfor the benefit of, anyone other than you, unless expressly stated otherwise inan Order Form; (ii) copy (except for archival purposes), rent, lease,distribute, pledge, assign, or otherwise transfer or encumber rights to theMenuSifu System except as permitted herein or in an Order Form or theDocumentation; (iii) sell, resell, license, sublicense, distribute, makeavailable, rent or lease any MenuSifu System or Documentation or Content in aservice bureau or outsourcing offering. Without limiting the foregoing, youwill not act as a payment intermediary, aggregator or service bureau orotherwise resell the MenuSifu System on behalf of any third party. This meansthat you may not use the MenuSifu System to handle, process or transmit fundsfor any third party. You also may not use the MenuSifu System to process cashadvances; (iv) use a MenuSifu System or Non-MenuSifu Software to store ortransmit infringing, libelous, or otherwise unlawful or tortious material, orto store or transmit material in violation of third-party privacy rights; (v)use a MenuSifu System or Non- MenuSifu Software to store or transmit MaliciousCode; (vi) interfere with or disrupt the integrity or performance of anyMenuSifu System or third-party data contained therein; (vii)attempt to gainunauthorized access to any MenuSifu System or Documentation or Content or itsrelated systems or networks; (viii)permit direct or indirect access to or useof any MenuSifu System or Documentation or Content in a way that circumvents acontractual usage limit, or use of any of MenuSifu System in a manner thatviolates MenuSifu’s acceptable use, or to access or use any of MenuSifuintellectual property except as permitted under this Agreement, an Order Form,or the Documentation; (ix)modify, copy, translate or create derivative worksbased on a MenuSifu System or any part, feature, function or user interfacethereof; (x) disassemble, reverse engineer, or decompile a MenuSifu System, orotherwise attempt to discover the source code, object code or underlyingstructure, ideas or algorithms of the MenuSifu System; or (xi) use or accessMenuSifu System to (a) build a competitive product or service using similarideas, features, functions or graphics of the MenuSifu System, (b) build orsupport and/or assist a third party in building or supporting, products orservices competitive to MenuSifu, or (c) determine whether the MenuSifu Systemare within the scope of any patent.
4.1.1 Provision of MenuSifu System and Services. MenuSifu will (i) make the MenuSifu System, Content, Documentation and Services available to you pursuantto this Agreement and any applicable Order Forms, (ii) provide Services to youif applicable, (iii) use commercially reasonable efforts to make the onlinesupport available 24 hours a day, 7 days a week, except for: (a) planneddowntime if applicable (of which MenuSifu shall give advance electronicnotice), and (b) any Force Majeure Event, internet service providers’ failureor delay, or other reasons out of MenuSifu’s reasonable control.
4.1.2 Implementation and Training. AtMenuSifu’s sole discretion, MenuSifu may provide free online support for theimplementation of and free online training for the MenuSifu System upon yourpurchase. Any onsite implementation and training will be billed in accordancewith the then current implementation invoicing policy.
4.1.4 MenuSifu Personnel. MenuSifu will beresponsible for the performance of MenuSifu personnel (including MenuSifuemployees and contractors) and their compliance with MenuSifu obligations underthis Agreement, except as otherwise specified herein.
4.2 Your Responsibilities.
4.2.1 Assistance. You shall providecommercially reasonable information and assistance to MenuSifu to enableMenuSifu to deliver your purchase inyour Order Form(s). You acknowledge that your MenuSifu’s ability to deliver theMenuSifu System and the Services in the manner provided in this Agreement maydepend upon the accuracy and timeliness of your information and assistance. Youagree to notify provide fifteen (15) days advance written notice to MenuSifufor any type of the changes of (i) your restaurant location; (ii)yourrestaurant ownership; or (iii) a reallocation of the MenuSifu System or yourSystem on which MenuSifu System is installed.
4.2.2 Compliance with Laws. You shallcomply with all applicable local, state, national and foreign laws inconnection with your use of the MenuSifu System and the Services, includingthose laws related to data privacy, international communications, and thetransmission of technical or personal data. You acknowledge that MenuSifuexercises no control over the content of the information transmitted by you orUsers through the Services. You shall not upload, post, reproduce or distributeany information, software or other material protected by copyright, privacyrights, or any other intellectual property right without first obtaining thepermission of the owner of such rights.
4.2.3 Unauthorized Use; False Information. You shall: (i) notify MenuSifu immediatelyfor any unauthorized useofany password or user id or any other known or suspected breach of security,(ii) report to MenuSifu immediately and use reasonable efforts to stop anyunauthorized use of the MenuSifu System and the Services that is known orsuspected by you or any User, and (iii) not provide false identity informationto again access to or use the MenuSifu System and the Services.
4.2.4 User Access. You shall be solelyresponsible for the acts and omission of your Users. MenuSifu shall not beliable for any loss of data orfunctionality caused directly or indirectly by your Users.
4.2.5 Your Input. You are solelyresponsible for collecting, inputting and updating all Your Data and forensuringthatYour Data does not (i) include anything that actually or potentially infringesor misappropriated the copyrights, trade secret, trademark or otherintellectual property right of any third party, or (ii) contain anything thatis obscene, defamatory, harassing, offensive or malicious.
4.2.6 License from You. Subject to the terms andconditions of this Agreement, you shall grant to MenuSifu alimited,non-exclusive and non-transferable license, to copy, store, configure, perform,display and transmit Your Data solely as necessary to provide the Services toyou.
4.2.7 Ownership and Restrictions. Youretain ownership and intellectual property right in and to your Data. Except tothe extent you or any Users make any of your Data accessible to other users orthe public through the MenuSifu System, your Data will be deemed to be yourConfidential Information. Notwithstanding anything else in this Agreement,MenuSifu may monitor your Users’ use of the MenuSifu System and use your Datain an aggregated and anonymous manner, compile statistical and performance information related to the provision and operation of the MenuSifuSystem and may make such information publicly available, provided that such informationdoes not incorporate and/or identify your Confidential Information. MenuSifuand its licensors retain all ownership and intellectual property rights to theServices, MenuSifu Software, and anything developed and delivered under thisAgreement, unless otherwise provided in your Order Form(s). Third partytechnology that may be appropriate or necessary for use with some Services orMenuSifu Software is specified in the Documentation or the Order Form(s) asapplicable. Your right to use such third party technology is governed by theterms of the third party technology license agreement specified by MenuSifu andnot under this Agreement.
4.2.8Suggestions. MenuSifu shall have a royalty-free, worldwide, irrevocable,perpetual license to use and incorporate into the MenuSifu System and theServices any suggestions, enhancement requests, recommendation or otherfeedback provided by you, including Users, relating to the operation of theMenuSifu System and the Services.
4.2.9 Your Marks. You hereby grantMenuSifu a nonexclusive right and license to use and display your name, logoandsimilar indicia (“Your Marks”) on MenuSifu’s website and marketing collateralidentifying you as a customer of MenuSifu. MenuSifu obtains no rights in yourMarks except for the limited right described in the preceding sentence, and youretain all right, title and interest in your Marks. All use of your Marks byMenuSifu will insure you.
5. FEES,INVOICE, PAYMENT AND TAXES.
5.1 Fees. In consideration of any MenuSifuSystem and/or Services purchased by you, you will pay all fees specified ineach Order Form (“Fees”). Except as otherwise specified herein or in an OrderForm, all Fees are non - cancelable and non-refundable.
5.2 Invoicing. You are responsible for providing complete and accurate billing and contact information to MenuSifu and notifying MenuSifu of any changes tosuch information. If you provide ACH information to MenuSifu, you authorizeMenuSifu to debit your account for all Fees listed in the Order Forms. If anOrder Form specifies that payment will be made by a credit card, you willprovide MenuSifu with valid and updated credit card information, or alternative documents reasonably acceptable to MenuSifu. You may be subject to additional transactional or service feesby credit card payment. MenuSifu will invoice you in advance in accordance withthe relevant Order Form before MenuSifu delivers the MenuSifu System and/orServices.
5.3 Payment. You agree to pay for alluncontested amounts due under each Order Form upon your receipt of MenuSifuinvoices. All amounts stated in and payable as specified in the applicableOrder Form and shall be paid in U.S. Dollars or in such other currency as agreedto in writing by the parties. Unpaid invoices that are not the subject of awritten good faith dispute are subject to a finance charge of 1.5% of theoutstanding balance per month, or the maximum rate permitted by law, whicheveris lower, plus all reasonable expenses of collection.
5.4 Taxes. You are responsible and liable fordetermining any and all Taxes required to be assessed, incurred, collected,paid or withheld for all sales and other transactions arising from the use ofMenuSifu Systems, Services and any Orders under this Agreement. You also areresponsible and liable for (a) determining whether Taxes apply to your sale ofmenu items, products and services, payments received, and any othertransactions arising from or out of your use of MenuSifu Systems and Services,(b) calculating, collecting, reporting or remitting any Taxes to theappropriate tax and revenue authorities, and (c) verifying your gross incomeand sales proceeds that may be otherwise claimed taxable by any third parties,including the Third Party Services (as defined below) of which MenuSifuincorporated their services and technologies into MenuSifu Systems andServices. Any guidance, estimates, or other information provided by MenuSifurelated Taxes is not intended to be tax advice and purely for informationalpurposes and shall not be taken as tax advice. MenuSifu specifically disclaimsany and all liability for such Taxes. You acknowledge that MenuSifu may beobligated under applicable laws to report certain information to tax andrevenue authorities (“Tax Information”) and/or you with respect to yourpurchase hereunder. Upon request, you shall provide us with the necessaryinformation to complete any applicable Tax Information reporting and recertifysuch information from time to time, as may be required by applicable law.MenuSifu also may, but are not obligated to, send to you the Tax Informationreported. Taxes include any and all present or future taxes, charges, fees,levies or other assessments, including, without limitation, income,telecommunications, value-added, goods and services tax or similar taxes, grossreceipts, excise, real or personal property, sales, withholding, socialsecurity, occupation, use, severance, environmental, license, net worth,payroll, employment, franchise, transfer and recording taxes, fees and charges,imposed by any domestic or foreign taxing authority (“Taxes”).
5.5 Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or writtenpublic comments made by MenuSifu regardingfuture functionality or features.
5.6 Audit. Upon MenuSifu’s writtenrequest, not more frequently than annually and at its own expense, may audityour use of the MenuSifu System and the Services. Any such audit shall beconducted during regular business hours at your facilities and shall notunreasonably interfere with your business activities. If a certificate of anaudit reveals that you have underpaid fees to MenuSifu for any MenuSifu System,you shall be invoiced for such underpaid fees at MenuSifu’s then-current listprices for the actual number of MenuSifu System under your use. If theunderpaid fees exceed ten percent (10%) of the fees paid, then you also shallpay MenuSifu reasonable costs of conducting the audit.
6. TERMAND TERMINATION
6.1 Term. Your purchase of MenuSifu Software,Hardware or MenuSifu System, or your subscription of any Services shall havethe term specified in the applicable Order Form(s). Whereas indicating thatyour purchase is subject to one-time payment, such purchase shall be deemed asa “buy-out” and shall be delivered upon your full payment. Whereas indicating that your purchase is asubscription of Maintenance Services or SaaS Services on an annual or monthlybasis, the term shall be the period defined in the Order Forms(s) unlessearlier terminated in accordance with this Agreement (“Initial Term”) andshall be automatically renewed on an annually or monthly basis (“Renewal Term”) as specified in the Order Form(s).
6.2 Termination for Convenience. For yoursubscription of Services on an annual or monthly basis, either party mayterminate this Agreement at any time for convenience upon thirty (30) daysprior written notice to the other party, provided, however, you can terminationthis Agreement before the Initial Term expires only upon you full payment ofthe remainder monthly subscription fees to fulfill the full subscription feesdue for the Initial Term to MenuSifu.
6.3 Termination with Cause. Each party mayterminate this Agreement for cause (i) upon thirty (30) days written notice tothe other party of a material breach if such breach remains uncured at theexpiration of such period, or (ii) if the other party becomes the subject of apetition in bankruptcy or any other proceeding relating to insolvency,receivership, liquidation or assignment for the benefit of creditors. Forsubsection (i), both parties agree that your non-payment or delayed payment mayconstitute a material breach, unless such non-payment or delayed payment isexpressly excused by MenuSifu.
6.4 Suspension. MenuSifu reserve the right tosuspend delivery of or your use of the MenuSifu System and Services uponwritten notice to you if (i) you fail to make any payment due within thirty(30) days after MenuSifu has provided you with notice of such failure,irrespective of your purchase is “buy-out” or subscription of Services withterms; (ii) you provide any inaccurate, untrue or incomplete information orfail to comply with the MenuSifu account registration requirements; (iii) MenuSifu determines that you are incurring excessive chargebacks;(iv) MenuSifu reasonably concludes that your or your Users’ use of the MenusifuSystem or the Services is causing immediate and ongoing harm to MenuSifu or others, or (e) you violate Sections 2 (LICENSE), 3(RESTRICTIONS), 4.2 (YOUR RESPONSIBILITIES) or 9 (CONFIDENTIALITY). Any suspension by MenuSifu of the MenuSifu System andServices under the preceding sentence will not relieve you of your paymentobligations under this Agreement. MenuSifu may, without limiting its otherrights and remedies, accelerate your unpaid fee obligations under thisAgreement so that all such obligations become immediately due and payable. Itis MenuSifu’s sole discretion to resume the delivery of or your use of theMenuSifu System and Services within a reasonable time once MenuSifu receivesyour payment of the balance.
6.5 Effect of Termination. (i) Upon anytermination or expiration of an Order Form or this Agreement, your right toaccess and use the MenuSifu System and Services covered by that Order or allOrder Forms will terminate and all MenuSifu System and supporting materialswill be returned to MenuSifu within ten (10) days, or destroyed and anaffidavit supplied to MenuSifu certifying destruction. (ii) Notwithstanding theforegoing, at your request if received within thirty (30) days of terminationof the Order Form or Agreement for any reason other than termination byMenuSifu for your uncured material breach, MenuSifu will permit you to accessthe MenuSifu System solely to the extent necessary for you to retrieve a fileof your Data then in MenuSifu’s possession if applicable. You acknowledge andagree that MenuSifu has no obligation to retain your Data and that MenuSifuwill have the right to irretrievably delete and destroy your Data after thirty(30) days following the termination of this Agreement. You agree you willcontinue to permit MenuSifu access to your bank account if provided until allamounts due under this Agreement are paid in full. (iii) If MenuSifu terminatesthis Agreement due to a material breach by you, then you shall immediately payto MenuSifu all amounts then due under this Agreement and to become due duringthe remaining term of this Agreement, but for this termination. If youterminate this Agreement due to a material breach by MenuSifu, then MenuSifushall immediately repay to you all pre-paid amounts for any unperformedServices scheduled to be delivered after the termination date.
6.6 Surviving Provisions. The sections andsubsections titled “FEES, INVOICE, PAYMENT AND TAXES”, “PROPRIETARY RIGHTS AND LICENSES”, “CONFIDENTIALITY”, “EXCLUSIVE REMEDIES”, “DISCLAIMERS”, “LIMITATION OF LIABILITY”, “INDEMNIFICATION,” “SURVIVING PROVISIONS” and “GENERALPROVISIONS” will survive any termination or expiration of this Agreement.
7. NON-MENUSIFUPROVIDERS/THIRD-PARTY SERVICES
7.1 Non-MenuSifu Software. MenuSifuor third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-MenuSifu Software and implementation and other consulting services. Any acquisition by youof such products or services, and any exchange of data between you and anyNon-MenuSifu provider, product or service is solely between you and theapplicable Non-MenuSifu provider. MenuSifu does not warrant or supportNon-MenuSifu Software or other Non-MenuSifu products or services, whether ornot they are designated by MenuSifu as “certified” or otherwise, unlessexpressly provided otherwise in an Order Form.
7.2 Non-MenuSifu Software and Your Data.If You choose to use a Non-MenuSifu Software with a MenuSifu System, you grantMenuSifu permission to allow the Non-MenuSifu Software and its provider toaccess your Data as required for the interoperation of that Non-MenuSifuSoftware with the MenuSifu System if/when applicable. MenuSifu is notresponsible for any disclosure, modification or deletion of your Data resultingfrom access by such Non-MenuSifu Software or its provider, or providing anytechnical support and Maintenance Services for any dysfunctions caused by or resulting from any Non-MenuSifuSoftware’s access and interoperation with MenuSifu System.
7.3 Interoperation with Non-MenuSifu Software. The MenuSifu System or the Services may contain features designed to interoperate with Non-MenuSifu Software. To usesuch features, you may be required to obtain access to such Non- MenuSifuSoftware from their providers, and may be required to grant MenuSifu access toyour account(s) on such Non-MenuSifu Software. MenuSifu cannot guarantee thecontinued availability of such MenuSifu System or the Services features, andmay cease providing them without entitling you to any refund, credit, or othercompensation, if for example and without limitation, the provider of a Non-MenuSifuSoftware ceases to make the Non-MenuSifu Software available for interoperation with the corresponding MenuSifuSystem or the Services features in a manner acceptable to MenuSifu.
7.4 Third Party Services. Certain Services mayintegrate, be integrated into, or be provided in connection with third- partywebsites, services, content, and/or materials ("Third-PartyServices'').Thus, MenuSifumay link to or offer Third-Party Services on its website or otherwise throughthe Services. Any purchase, enabling, or engagement of Third-Party Services,including but not limited to payment, implementation, integration,customization, synchronization and delivery services, and any exchange of Databetween you and any Third-Party Service, is solely between You and theapplicable Third-Party Service provider and is subject to the terms andconditions of such Third-Party Service provider. MenuSifu does not control anyThird-Party Services or Third-Party Service provider, nor warrant, endorse orsupport Third-Party Services and is not responsible or liable for such Servicesor any losses or issues that result as your use of such services. If Youpurchase, enable or engage any Third-Party Service for use in connection withthe Services, You acknowledge that MenuSifu may allow providers of thoseThird-Party Services to access your Data used in connection with the Servicesas required for the interoperation of such Third-Party Services with theServices. You represent and warrant that your use of any Third-Party Servicesignifies Your independent consent to terms and conditions required by theThird-Party Service provider, and the access and use of your Data by theThird-Party Service provider, and that such consent, use, and access is outsideof MenuSifu’s control. MenuSifu will not be responsible or liable for anydisclosure, modification or deletion of Data resulting from any such access byThird-Party Service providers.
8. PROPRIETARYRIGHTS AND LICENSES
8.1 Reservation of Rights. Subject to thelimited rights expressly granted hereunder, MenuSifu and its Affiliates,licensors and Content providers reserve all of our/their right, title andinterest in and to the MenuSifu System,Servicesand Content, including all of our/their related intellectual property rights.No rights are granted to you hereunder other than as expressly set forthherein.
8.2 Ownership. MenuSifu owns or has rights touse all intellectual property rights in and to the MenuSifu System (includingall derivatives or improvements thereof). The MenuSifu Software provided underthis Agreement has substantial monetary value and is proprietary to MenuSifu.The MenuSifu Software contains trade secrets, inventions, ideas, data, sourceand object codes, and other works of authorship protected by copyright andtrade secret laws, and may be the subject of one or more pendingpatent applications or issued patents. All enhancements andmodifications made by MenuSifu which are provided under Software Updates,Software Upgrades and Developed Software provisions of this Agreement willremain proprietary to MenuSifu. The MenuSifu System and Services may alsoinclude copyrighted and proprietary material of third parties for whichMenuSifu has been granted a right to use and distribute. MenuSifu and anythird-party suppliers shall retain ownership of all rights, title and interestto their respective portions of the MenuSifu System and Services, and allreleases thereof. MenuSifu will be free to use, disclose, reproduce and otherwise exploit any and all suggestions, enhancementsrequests, feedback, recommendations or other input provided by you or any otherparty relating to the MenuSifu Systemand Services as MenuSifu sees fit, entirely withoutobligation or restriction of any kind.Any rights not expressly granted herein are reserved by MenuSifu.
9.1 Confidentiality Obligations. The ReceivingParty will use the same degree of care that it uses to protect theconfidentiality of its own confidential information of like kind (but not lessthan reasonable care) to (i) not use any Confidential Information of theDisclosing Party for any purpose outside the scope of this Agreement and (ii)except as otherwise authorized by the Disclosing Party in writing, limit accessto Confidential Information of the Disclosing Party to those of its and itsAffiliates’ employees and contractors who need that access for purposesconsistent with this Agreement and who have signed confidentiality agreementswith the Receiving Party containing protections not materially less protectiveof the Confidential Information than those herein. Neither party will disclosethe terms of this Agreement or any Order Form to any third party other than itsAffiliates, legal counsel and accountants without the other party’s priorwritten consent, provided that a party that makes any such disclosure to itsAffiliate, legal counsel or accountants will remain responsible for suchAffiliate’s, legal counsel’s or accountant’s compliance with this“Confidentiality” section. Notwithstanding the foregoing, MenuSifu may disclose the terms of this Agreement and any applicable Order Form to asubcontractor or Non-MenuSifu Software providers to the extent necessary toperform MenuSifu’s obligations to you under this Agreement, under terms ofconfidentiality materially as protective as set forth herein.
9.2 Compelled Disclosure. The Receiving Partymay disclose Confidential Information of the Disclosing Party to the extentcompelled by law to do so, provided the Receiving Party gives the DisclosingParty prior notice of the compelled disclosure (to the extent legally permitted)and reasonable assistance, at the Disclosing Party's cost, if the DisclosingParty wishes to contest the disclosure. If the Receiving Party is compelled bylaw to disclose the Disclosing Party’s Confidential Information as part of acivil proceeding to which the Disclosing Party is a party, and the DisclosingParty is not contesting the disclosure, the Disclosing Party will reimburse theReceiving Party for its reasonable cost of compiling and providing secureaccess to that Confidential Information.
10. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
10.1 Warranty. MenuSifu represents and warrants that the MenuSifu Software andthe Services, when properlyinstalled,used and implemented in accordance with its Documentation, will performmaterially in accordance with the applicable Documentation in effect at theeffective date of this Agreement. Notwithstanding for forgoing, any Hardwaresold by MenuSifu to you hereunder will be covered by MenuSifu’s Refund andLimited Warranty Policy made available athttp://Menusifu.com/company/Legal/Menusifu-limited-warranty.
10.2 Exclusive Remedies. For any breach of awarranty, your sole and exclusive remedy shall be as provided inSections 6 and 10.1.
10.3 Disclaimers. EXCEPT FOR THE EXPRESSWARRANTIES SET FORTH HEREIN, MENUSIFU AND ITSTHIRD-PARTY PROVIDERS HEREBYDISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITHREGARD TO THE MENUSIFU SYSTEM, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF YOUR ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT ANDQUALITY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MENUSIFU AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY,AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THEMENUSIFU SYSTEM, THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THEMENUSIFU SYSTEM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MENUSIFU ANDITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION ORUSE OF THE MENUSIFU SYSTEM OR THE SERVICES WILL BE TIMELY, UNINTERRUPTED ORERROR-FREE; OR (B) THE QUALITY OF THE MENUSIFU SYSTEM OR THE SERVICES WILL MEETYOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER MENUSIFU NOR ITS THIRD-PARTYPROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE MENUSIFU SYSTEM MAY BE SUBJECT TOLIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. MENUSIFU IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES,OR OTHER DAMAGE OR LOSS OF PROFIT RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, MENUSIFU DOES NOTWARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANYSECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY MENUSIFU, THE MENUSIFU SYSTEM, SERVICES AND CONTENT ARE PROVIDED TO YOU ON AN"AS IS" BASIS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTYDISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGESCAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.4 WEBSITE TEMPLATE DESIGN SERVICES; DISCLAIMER You acknowledge Menusifu is providing website template design services to you as a convenience and at no additional charge. You are not required to use the template and may modify, change, or amend it to suit your needs. Menusifu makes no representations or warranties, and assumes no liability or responsibility, as to compliance with the Americans With Disabilities Act ("ADA") or compliance with any other applicable law. It is your sole responsibility to obtain satisfactory evidence and/or assurances that the template is in compliance with the requirements of the ADA or any other applicable law. Menusifu shall not be liable for any claims relating to, or resulting from, your use of the template. MENUSIFU EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATIONOF LIABILITY
NEITHER PARTY (NOR ANY LICENSOR THIRD PARTY SERVICE PROVIDER OR OTHER SUPPLIER OFMENUSIFU) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OFANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITHTHIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE),EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATELIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THECLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID BY YOU FOR THEAPPLICABLE ORDER UNDER THIS AGREEMENT DURING THE 12 MONTHSPRECEDING THE DATE THE CLAIM AROSE. THE FORGOING LIMITATIONS SHALL NOT APPLY TO THE PARTIES’ OBLIGATIONS (OR ANYBREACH THEREOF) UNDER SECTIONS TITLED “RESTRICTIONS” “INDEMNIFICATION'' OR“CONFIDENTIALITY” .
12.1 MenuSifu’s Indemnity to You. MenuSifu willindemnify, defend and hold harmless you and your directors,officers, employees, affiliates andagents from and against any and all third party claims brought against you by athird party alleging that the use of the MenuSifu Software as contemplatedhereunder infringes the copyright or misappropriated the trade secret rights ofsuch third party, and MenuSifu will pay all costs (including reasonableattorneys’ fees) and damages finally awarded against you by a court ofcompetent jurisdiction as a result of any such claim or payable by you pursuantto a settlement agreement to which MenuSifu agrees in writing in settlement ofsuch claim; provided, that you (a) promptly gives written notice of the claimto MenuSifu; (b) gives MenuSifu sole control of the defense and settlement ofthe claim; and (c) provides to MenuSifu, at MenuSifu's cost, all reasonableassistance. If the MenuSifu Software become, or in MenuSifu’s opinion arelikely to become, the subject of an infringement or misappropriation claim,MenuSifu may, at its option and expense, either (i) procure for you the rightto continue exercising the rights made available hereunder; (ii) replace ormodify the MenuSifu Software so that they become non-infringing or non-misappropriating; or (iii) refund to you the portion of the fees paid inadvance by you for any unused portion of the then-current term of the MenuSifuSoftware, if any, whereupon MenuSifu may terminate this Agreement upon writtennotice to you. Notwithstanding the foregoing, MenuSifu will have no obligationunder this Section 12.1 or otherwise with respect to any infringement ormisappropriation to the extent that it is based upon (i) the Content, Your Dataor Your System, (ii) the modification of MenuSifu Software or Services notauthorized by MenuSifu, or (iii) use of MenuSifu Software or the Services otherthan in accordance with the Documentation and this Agreement. This Section 12.1 represents the sole andexclusive remedy of you and the entire liability and obligation of MenuSifuwith respect to infringement and misappropriation.
12.2 Your Indemnity to MenuSifu. Youwill indemnify, defend and hold harmless MenuSifu and its directors,officers, employees, affiliates andagents from and against any and all third-party proceedings, claims, losses,damages, demands, liabilities and expenses whatsoever, including all reasonablelegal and accounting fees and expenses and all reasonable collection costs tothe extent resulting from or arising out of (i) your use of the MenuSifu Systemor the Services, other than those attributable to MenuSifu’s gross negligenceor willful misconduct for which MenuSifu is responsible as set forth in Section12.1 above, (ii) MenuSifu’s processing and service activities on behalf of you,(iii) the business of you, (iv) any sales transaction conducted by MenuSifu onbehalf of you, (v) any noncompliance with any terms and conditions of the ThirdParty Service Provider, the applicable laws and rules by you or your employees,(vi) any alleged or actual compromise, unauthorized access, disclosure, theftor unauthorized use of a card or customer information, regardless of cause, onyour systems, (vii) any infiltration, hack, breach or violation of theprocessing system of you or any other third-party processor or system, (viii)your, or any employees’ or customers’, breach or nonperformance of anyprovision of this Agreement, (ix) your or its agent or employee’s reliance onany report or other information generated through the MenuSifu Software; or (x)any Tax assessment.
13.1 Entire Agreement and Order of Precedence.This Agreement is the entire agreement between you and MenuSifuregarding your use of MenuSifuSystem, Services, Documentation and Content and supersedes all prior andcontemporaneous agreements, proposals or representations, written or oral,concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment orwaiver is to be asserted. The parties agree that any term or condition statedin your purchase order or in any other of your order documentation (excludingOrder Forms) is void. In the event of any conflict or inconsistency among thefollowing documents, the order of precedence shall be: (1) the applicable OrderForm, (2) this Agreement, and (3) the Documentation.
13.2 Severability. If any provision of thisAgreement is held by a court of competent jurisdiction to be contrary tolaw, the provision will be deemednull and void, and the remaining provisions of this Agreement will remain ineffect.
13.3 Notices. All notices shall be inwriting and either i) sent by certified mail, postage prepaid, return receiptrequestedor ii) sent via email or iii) delivered by courier to the address written inthe related Order Form or such other address as notified in writing to theother party. Notice shall be deemed to be made on the date received under i) orii) and date delivered under iii). If you have a dispute with MenuSifu and wishto provide a notice under this Agreement, or become subject to insolvency orother similar legal proceedings, you will promptly send written notice toMenuSifu, Inc. at 349 5th Ave, Fl 3, New York, NY 10016. Attn: LegalDepartment.
13.4 Arbitration. All disputes involvingthis Agreement, except actions arising under the patent and copyrightprovisions of the U.S. Code, shallbe submitted to a panel of three (3) arbitrators appointed and operating underthe Federal Arbitration Act and the Commercial Arbitration Rules of theAmerican Arbitration Association.Suchpanel shall include only persons with experience in the areas of informationtechnology or computer software licensing, installation or implementation. Eachparty shall choose one (1) arbitrator, and the third arbitrator shall be chosenby the two (2) arbitrators selected by the parties. The arbitration hearingwill be confidential and its location will be chosen by the party notinitiating the arbitration or action. The written decision of the arbitratorsshall be final, binding and convertible to a court judgment in any appropriatejurisdiction.
13.5 Governing Law and Jurisdiction.All disputes involving the subject matter of this Agreement, except actionsarising under the patent and copyright provisions of the U.S. Code, shall bedetermined under the law of the State of New York without regard to itsconflict of laws provisions and to the exclusive jurisdiction of the courts ofNew York, New York.
13.6 Force Majeure. Neither party shall beliable for any costs or damages resulting from its inability to performanyof its obligations under this Agreement due to any Force Majeure Event, whichshall not constitute a breach of the Agreement. Upon the occurrence of a ForceMajeure Event, the non-performing party shall be excused from any furtherperformance or observance of the affected obligations for as long as suchcircumstances prevail, and such party continues to attempt to recommence performanceor observance to the greatest extent possible without delay.
13.7 Export Controls. The MenuSifu System, Documentation, Content and othertechnology MenuSifu makesavailable,and derivatives thereof may be subject to export laws and regulations of theUnited States and other jurisdictions. You shall not permit Users to access oruse any MenuSifu System or Documentation or Content in a U.S. embargoed countryor in violation of any U.S. export law or regulation. You shall indemnify,defend and hold harmless MenuSifu from any loss, liability, cost or expense(including reasonable legal fees) related to any action arising from yourfailure to comply with this section.
13.8 Anti-Corruption. You agree that youhave not received or been offered any illegal or improper bribe, kickback,payment,gift, or thing of value from any ofMenuSifu’s employees or agents in connectionwith this Agreement. Reasonable gifts and entertainment provided in theordinary course of business do not violate the above restriction. If you learnof any violation of the above restriction, you will use reasonable efforts topromptly notify MenuSifu at info@MenuSifu.com.
13.9 Subcontractors. You understand thatMenuSifu’s business partners are independent entities and, except to theextent they are acting assubcontractors pursuant to an effective consulting agreement, MenuSifu is notliable for nor bound by any acts of such business partners.
13.10 Assignment. Neither party may assignany of its rights or obligations hereunder, whether by operation of law orotherwise, without the other party’s prior written consent (not to beunreasonably withheld); provided, however, either party may assign thisAgreement in its entirety (together with all Order Forms), without the otherparty’s consent to its Affiliate or in connection with a merger, acquisition,corporate reorganization, or sale of all or substantially all of its assets.Notwithstanding the foregoing, if a party is acquired to sell substantially allof its assets to, or undergo a change of control in favor of, a directcompetitor of the other party, then such other party may terminate thisAgreement upon written notice. In the event of such a termination, MenuSifuwill refund to you any prepaid fees allocable to the remainder of the term ofall subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement willbind and inure to the benefit of the parties, their respective successors andpermitted assignees.
13.11 Relationship. The parties hereto areindependent contractors and neither party nor its employees, directors, agents,or consultants shall hold itself out to be or allow itself to be considered asan agent or employee of the other party.
13.12 Publicity. Neither party shall publiclyannounce or disclose the terms and conditions of this Agreement except thatMenuSifu may refer to you as MenuSifu’s customer in sales calls, customerlists.
13.13 Other Documents. Any of your purchaseorder or other instrument accompanying either an Order Form to this Agreementor your payment is for your internal use only.
THIS AGREEMENT, TOGETHER WITH THEEXHIBITS, SCHEDULES, AND ADDENDUMS,AS THERE MAY BE, IS A COMPLETEAND EXCLUSIVE STATEMENT OF THEAGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THESUBJECT MATTER OF THIS AGREEMENT. IN THE EVENT OFANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS AGREEMENT AND THEPROVISIONS OF ANY TERM IN THE EFFECTIVE ORDER(S) BETWEEN YOU AND MENUSIFU , THETERM IN THE EFFECTIVE ORDER(S) SHALL CONTROL.