Online Ordering and Marketing Platform
As of May5 2021
Your use of the Platform(as defined below) and related Services (as defined below) is governed at all times by this End User License Agreement (“EULA”). References herein to “you,” “your,” and “licensee” in this EULA refers to the individual and, if applicable, the entity you represent using the Platform and/or Services. References in this EULA to “we,” “our,” “us,” and “TakeOut7” herein means TakeOut7, Inc., a Delaware corporation, havinga principal place of business as set forth in Section 19(b)below. For purposes of this EULA, “Platform” means that online software service platform offering, as further described in Exhibit A hereof.
Section 1. EULA Acceptance
- You must agree to this EULA prior to your use of the Platform and/or Services. Please read this EULA in its entirety, as it governs your rights to access and use the Platform and any Services made available to you through the Platform. If you do not agree to be bound by this EULA, you are prohibited from using the Platform and the Services.
- Only individuals located in the United States or Canadaor such other jurisdiction as may be agreed to by TakeOut7 in writing in its sole discretion may agree to this EULA and use the Platform and Services. By accepting this EULA, you represent you are a located in the United States or Canada or in a jurisdiction authorized by TakeOut7 in writing. All others are prohibited from agreeing to this EULA and using the Platform and/or Services.
- This EULA is a binding legal agreement between you and TakeOut7 and governs in all respects your use of the Platform and any websites, TakeOut7 Content (as defined in Section 5(d) below) services, software, and products (collectively, the “Services”) made available to you through the Platform, except with respect to any software or services made available to you by us pursuant to a separate written agreement, which shall be governed by that agreement. For purposes of this EULA, you understand and agree that TakeOut7 may partner with third parties to provide some or all of the Platform and/or Services (hereinafter, the “TakeOut7 Service Partners”). The TakeOut7 Service Partners shall be third party beneficiaries of this EULA, with full power and authority to enforce all rights hereunder against you.
- This EULA can be accepted by you by either (i) clicking on an acceptance button or other affirmative consent with respect to the EULA, if one is provided by us, either as part of the registration process or in connection with the launch of the Platform; or (ii) by actually using the Platform and/or Services, or a portion of same, in which case your usage shall be deemed an acceptance of this EULA commencing upon your first use of the Platform and/or Services or a portion thereof.
Section 2. License to Platform and Services
- Subject at all times to the limitations, prohibitions and restrictions set forth herein and the payment of the Fees, as provided for in Exhibit A or in a separate order form which references this EULA (whether electronic or in paper format), TakeOut7hereby grants you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Platform and the Services provided by TakeOut7 to you pursuant to this EULA. For clarity, the foregoing license is granted to you solely to enable you to use Platform and Services in a manner consistent with this EULA. Under no circumstances are you allowed to sell, trade or resell the Platform or Services in any way or for any purpose, including without limitation any use in any application service provider environment, service bureau, or time-sharing arrangements.
- Under no circumstances may you assign or sublicense your rights to use the Platform and/or Services pursuant to this EULA or otherwise transfer, hypothecate, or grant a security interest in any of your rights granted pursuant to this EULA.
Section 3. Your Use of the Platform and Services
- You shall only use the Platform and Services for the purposes set forth in this EULA and at Exhibit A and all such use must comply with all applicable laws, rules and regulations, as well as applicable guidelines and practices applicable to such Services, as may be promulgated in all jurisdictions with authority over your use of the Platform and Services, including all applicable data and software export laws.
- Under no circumstances are you permitted to engage in any activity that disrupts or otherwise interferes with the proper function of the Platform and/or Services, as well as any servers, technology, equipment and or network infrastructure provide and/or accessible in connection with same.
- Under no circumstances are you allowed to (i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code for the Platform, except as may permitted by applicable law; (ii) alter, obscure or remove any copyright or other proprietary notices on the Platform and/or the Services or any documentation related thereto; (iii) create derivative works from, adapt, translate, alter, or embed into any other service or product with or into the Platform and/or Services; and/or (iv) use separate components of the Platform on different computers.
- Any breach of your obligations under this EULA shall be solely your responsibility and under no circumstances shall TakeOut7 have any responsibility or liability to you or any third party as a result of your breach of your obligations hereunder.
- In connection with your use of the Platform and Services, you may be required to provide a username and password. You are responsible for ensuring that yourusername and password are not shared with unauthorized parties and under no circumstance is TakeOut7 liable for any security breach resulting from the misuse of your username and/or password by you, your employees, ex-employees, agents, and directors.
- In connection with your use of the Platform and Services, you are required to maintain a refund policy in the form available at https://www.takeout7.com/refund_policy/ (the “Refund Policy”). You agree that TakeOut7 may post the Refund Policy on all webpages connected to your site and you agree to abide by the terms of such Refund Policy in connection with transactions undertaken between you and your customers.
- To the extent you are utilizing TakeOut7’s POSconnect solution as part of the Platform and Services, you agree you will (i) deploy the POSconnect software (aka POSC) on your POS system; and (ii) provide unlimited monitoring and transmission of updated menu information to the cloud storage provider designated by TakeOut7 in order to ensure that the POS and online ordering system provided via the Platform remain properly synchronized. The POSC connects your POS database to the cloud-based online ordering system comprising a part of the Platform.
- You understand and agree that the Platform and Service use and availability will not be available until you have activated your account. Activation shall not be considered complete until such time as (i) your online menu for your restaurant and related ordering settings have been programmed by TakeOut7 based upon the information you have provided, (ii) Your Customers are able to submit an order through the Platform, (iii) TakeOut7 has conducted a pre-activation training session with you designated representative, and (iv) TakeOut7 has provided you with notice (email sufficing) that activation has been completed (“Activation”).
Section 4. Platform and Service Updates; Discontinuation and Suspension
- At any time and without notice to you, TakeOut7 may permanently or temporarily terminate or suspend the provision of the Platform and/or Services or any portion thereof to you or in general for any reason or no reason, in its sole discretion. In such an event, you understand and agree that you may be unable to access the Platform, the Services, any TakeOut7 Content (as defined below), files and/or information, including your account information, that was previously accessible to you. You may cease using the Platform and/or Platform at any time without notice to us for any or no reason.
- From time to time, TakeOut7 may update, modify and otherwise change the Platform and/or the Services without notice to you and you agree to same. Your continued use of the Platform and/or Services following any such updates, modifications, and/or changes constitutes your acceptance of same in all respects.
- In its sole discretion, TakeOut7 reserves the right to cause the Platformto automatically download and install updates from time to time. Such updates may improve, enhance and/or further develop the Platform and/or the Services, including updates for bug fixes, enhanced functions, new software modules and completely new versions. By agreeing to this EULA, you agree to receive such updates (and permit TakeOut7 to deliver these updates) in connection with your use of the Platform and Services.
- From time to time, you may desire to suspend your use of the Platform to receive Your Orders (as defined in Section 7(a)) to manage situations outside of your use of the Platform, such as unplanned shutdowns (e.g., power outages, repairs, store closings due to inclement weather, etc.). In order to suspend your use of the Platform, you may use the store manager portal (i.e., the online account provided to you for each restaurant signed up to use the Platform to monitor its orders restaurant settings and restaurant timings, pick-up and delivery lead times). If you elect to suspend your use of the Platform per the above, your suspension of the Platform will be valid until the commencement of your normal business hours for the next day that your establishment is open, as set by you at the time of establishing your account (or as may be subsequently updated by you), after which the suspension may automatically be cancelled and online ordering via the Platform may again be made available to Your Customers. If you require a suspension longer than 24 hours, you must contact TakeOut7 support at email@example.com to request same.
Section 5. Content and Materials
- In order for TakeOut7 to provide the Platform and the Services, TakeOut7 may require that you provide to us certain information and content, including but not limited to business information, images, photographs, logos, trademarks, trade names or service marks (collectively, “Your Content”). You hereby grantTakeOut7 a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, and sublicensable (including through multiple tiers) right and license to use, copy, publish, distribute syndicate, reformat, and update Your Content provided by you.
- You shall use commercially reasonable efforts at all times during TakeOut7’s provision of the Platform and Services, to ensure that any of Your Content provided by you is true, accurate and complete and in compliance with all applicable Federal and state laws and regulations. You shall send any updates to Your Content to firstname.lastname@example.org or through such other application interface as TakeOut7 may provide from time to time.
- Upon your written request, TakeOut7 shall use reasonable efforts to remove, and to request that any of TakeOut7 Service Partnersremove, any of Your Content from the Platform and Services and any websites associated with the Services within a commercially reasonable period of time (provided, however, that in no event will TakeOut7 or any of the TakeOut7 Service Partners have any liability if Your Content continues to be published).
- By using the Platform and the Services, you acknowledge and agree that you shall be automatically enrolled in TakeOut7’s marketing programs (the “TakeOut7 Marketing Program”). So long as you use the TakeOut7 Marketing Program to offer promotions to Your Customers equal to at least a ten percent (10%) discount on Your Order for at least one (1) week of each calendar month (the “Promo Requirement”), the TakeOut7 Marketing Program shall be provided to you free of charge from TakeOut7. If you do not adhere to the Promo Requirement, you acknowledge and agree that TakeOut7 may charge you for the TakeOut7 Marketing Program at TakeOut7’s then current rates. You may opt out of the TakeOut7 Marketing Program by providing TakeOut7 with written notice of this election by emailing TakeOut7 at email@example.com.
- Any and all content and information provided to you from or through the Platform and/or Services,including without limitation, text, files, content, logos, data, graphics, images, links, software, communications, messages or other materials and terms of expression, including any of the foregoing produced by TakeOut7 on your behalf pursuant to the TakeOut7 Marketing Program (collectively, “TakeOut7Content”) is owned by TakeOut7. Subject to your continued compliance with the terms of this EULA, including this Section 5, TakeOut7 hereby provides you with a revocable, non-exclusive, non-sublicensable, non-transferrable license to use the TakeOut7 Content. TakeOut7 reserves the right to revoke such license at any time and for any reason, including if you are in breach of this EULA.
- Certain TakeOut7 Content provided from or through the Platform and/or Services may be subject to intellectual property rights with respect thereto, which are owned by the source and/or provider of such TakeOut7 Content or another third party which has authorized the provider of such TakeOut7 Content to distribute such TakeOut7 Content. Under no circumstances may you modify, distribute, sell,rent, lease, loan, or create derivative works based on theTakeOut7 Content (either in whole or in part) unless the TakeOut7 Content owner has provided you with specific written permission to do so in a separate written agreement.
- Without the express written consent of the proper owner of any TakeOut7 Content that is subject to a proprietary right, including without limitation copyrights and trademarks, you are prohibited from creating, posting, transmitting, uploading, displaying, or otherwise making use of such TakeOut7 Content either through the Platform and/or Services or otherwise. You shall be solely liable for any damages arising out of any infringement of any proprietary right of a third party, and any other damages that result from TakeOut7 Content that you upload, post, transmit, display or otherwise make available on or through the Platform and/or Services. In its sole and absolute discretion, TakeOut7 mayestablish additional policies and requirements governing the posting and submission of TakeOut7 Content by you on or through the Platform and/or Services by updating this EULA with such additional policies and/or requirements. You are responsible for ensuring that any TakeOut7 Content that you upload, transmit, display, post, or otherwise make available on or through the Services or that you use in connection with your use of the Servicesis done in full compliance with any applicable third partyproprietary right, including copyright and/or trademark right.
- In connection with your use of the Platform and/or Services, you acknowledge and agree that you may have access to and/or be exposed to TakeOut7 Content that you may find objectionable. You agree that your access and exposure to any such TakeOut7 Content is solely at your own and exclusive risk and TakeOut7 shall have no liability to you with respect to same. TakeOut7may review, flag, pre-screen, filter, modify, refuse or remove any or all T7 Content from any portion of the Platform and/or any of the Services, in its sole discretion, but shall in no circumstance be obligated to do so.
- As part of the Services, you may receive access to certain reports, statistics, and/or data regarding your use of the Services (collectively, the “Reports”). These Reports may include information such as total orders taken through the Platform, total dollar value of an order or all orders in the aggregate, total users of the Platform and Services with respect to your business or other information that we collect or receive from our TakeOut7 Services Providers regarding the Services provided to you. TakeOut7 cannot guarantee the availability or accuracy of any information provided in the Reports. Additionally, except as expressly stated otherwise, the Reports are for your use only. The provision of such Reports does not convey or grant any ownership interest in such Reports or any information contained therein to you.
Section 6. Ownership and Intellectual Property Rights
- You acknowledge and agree you have no rights to use any of TakeOut7’s trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and/or TakeOut7 Content. TakeOut7 owns all legal right, title and interest in and to the Platform and the Services, including any intellectual property rights with respect to same (whether those rights are registered or not, and regardless of the jurisdiction in which such rights may exist). You acknowledge and agree to same. The foregoing statement of ownership is subject to allapplicable open source and/or third-party licenses with respect to the Platform and the Services that TakeOut7 is subject to or that are otherwise applicable to TakeOut7.
- You hereby grant TakeOut7 an irrevocable, perpetual, worldwide license to use, broadcast, reproduce, recreate, store, distribute, have distributed, edit, market, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote any of Your Content that you upload, post, transmit, display or otherwise make available on or through the Platform and/or the Services, for editorial, commercial, promotional and all other purposes.
- Subject at all times to the license set forth in Section 6(b) above, TakeOut7 acknowledges and agrees that it obtains no right, title or interest in or to any of Your Content uploaded, posted, transmitted, displayed or otherwise made available on or through the Platform and/or the Services, including any intellectual property rights therein. TakeOut7 shall have no responsibility to protect and/or enforce any such intellectual property rights in Your Content, for which you remain solely responsible.
Section 7. Fees Applicable to the Use of the Platform and Services
- When your customers (“Your Customers”) submit an order through the Platform related to your restaurant (collectively, “Your Orders”), collections of all amounts owed with respect to Your Orders, including Fees (as defined in Section 7(b)) and Customer Taxes and Fees (as defined in Section 7(d)) will be handled in one of two ways. First, with respect to Your Orders that you collect all amounts owed (“Licensee Order Collections”), TakeOut7 will provide you with an account statement that details all Fees owed by you to TakeOut7 and shall shortly thereafter charge you such Fees via your designated payment method (e.g., ACH, debit card and/or credit card) at least twice a month on or after the 1st(with respect to money collected in the prior month and not previously distributed) and 16th day (with respect to money collected through a day of the current month determined by TakeOut7 and not previously distributed) of each calendar month, provided, however, that TakeOut7 reserves the right, in its sole discretion, to charge you with greater frequency (as often as daily). Prior to being charged with respect to Licensee Order Collection, you will be provided with an account statement that details all Fees owed by you to TakeOut7 through an applicable date selected by TakeOut7 in its sole discretion and shall shortly thereafter charge you such Fees via your designated payment method. With respect to Licensee Order Collections, (i) licensee is solely responsible for confirming that all funds so collected are being properly deposited into licensee’s designated bank account, and (ii) TakeOut7 is responsible for integrating the credit card processing vendor using licensee’s designated merchant identification number (MID) and payment processing token (Authorization Token), as designated by licensee, licensee’s representative, or designated credit card processing vendor (e.g., Shift4, Worldpay, Heartland, etc.) in writing from time to time. You acknowledge and agree that, with respect to Licensee Order Collections, TakeOut7 cannot validate the MID or Authorization Token provided by you or your designee and therefore shall have no responsibility or liability to you or any other third party to ensure that funds from Licensee Order Collections are actually being deposited to your designated bank account or for any mis-directed funds to the extent based upon your instructions. Licensee shall be responsible for immediately notifying TakeOut7 of any issues or errors with respect to its designated MID or Authorization Token so that TakeOut7 can correct any such errors as soon as possible. Second, with respect to Your Orders that TakeOut7 collects on your behalf, TakeOut7 will provide you with an account statement that details all amounts charged to Your Customers and collected by TakeOut7 and the Fees owed by you to TakeOut7 related to same and shall shortly thereafter remit to you all amounts collected, less TakeOut7’s applicable Fees, via your designated payment method (e.g., ACH, debit card and/or credit card) at least twice a month on or after the 15th day and last day of each calendar month in which such amounts were collected by TakeOut7 from Your Customers, provided, however, that TakeOut7 reserves the right, in its sole discretion, to charge you with greater frequency (as often as daily). Prior to being charged with respect to Licensee Order Collection, you will be provided with an account statement that details all Fees owed by you to TakeOut7 through an applicable date selected by TakeOut7 in its sole discretion and shall shortly thereafter remit such amounts, less TakeOut7’s applicable Fees, via your designated payment method.
- The fees payable to TakeOut7 by you for your use of the Platform and/or Services (the “Fees”) are set forth in Exhibit A attached hereto, unless otherwise specified in the applicable order form (whether electronic or paper) which incorporates this EULA by reference. TakeOut7 reserves the right to offset amounts collected by TakeOut7 Your Orders against (i) Fees owed for which TakeOut7 did not collect, but you did collect, and (ii) any, in accordance with Section 7(c) below, Chargebacks (as defined in Section 7(c) and Refunds (as defined in Section 7(c)). To the extent Fees owed to TakeOut7 are in excess of the amounts collected by TakeOut7, TakeOut7 will invoice you the difference periodically, as determined by TakeOut7 in its sole discretion in accordance with Section 7(a) above. No refunds will be given for use of the Platform and/or Services for partial months to the extent that any of the Services are purchased by you on a monthly basis. Unless otherwise set forth in an applicable order form which incorporates this EULA by reference, you shall be responsible for the payment of the Fees during the Term (as defined below). All payments of Fees due hereunder shall be made in U.S. Dollars and must be paid via credit card.
- From time to time, Your Customers may initiate a chargeback with their credit card company or issuing financial institution with respect to Your Orders they previously submitted through the Platform (each, a “Chargeback”). Typically, a Chargeback is initiated when Your Customer has asserted that they did not authorize the credit card charge. You acknowledge and agree that you will be solely responsible for all Chargebacks initiated with respect to Your Orders and you shall remain responsible for all Fees related to Your Order for which a Chargeback has been made. TakeOut7 will, upon written request (email sufficing), provide you with such details as it has available to it about Your Orders that are subject to Chargebacks to the extent required by an issuing bank or financial institution in order to assist you in contesting such Chargebacks to the extent you choose to do so. Additionally, from time to time, you may choose to initiate a refund with respect to certain of Your Orders (each, a “Refund”). The Platform will allow you to initiate Refunds with respect to credit card transactions for Your Orders undertaken through the Platform. You acknowledge and agree that you will be solely responsible for all Refunds initiated with respect to Your Orders and you shall remain responsible for all Fees related to those of Your Orders for which a Refund has been made, except to the extent such Refund is initiated as a result of a demonstrable TakeOut7 error supported by reasonable evidence of such error (e.g., a double charge undertaken by the Platform).
- In connection with your use of the Platform and/or Services, you acknowledge and agree that you shall be solely responsible for any and all taxes and surcharges applicable to Your Orders, including, without limitation, state and local sales taxes, service fees, delivery fees, and any other surcharges (collectively, the “Customer Taxes and Fees”) that licensee desires to impose on any of Your Orders submitted by Your Customers. In connection with the foregoing, you acknowledge and agree that you will be responsible for submitting to TakeOut7, on an itemized basis, an accurate summary of all Customer Taxes and Fees to be imposed upon Your Orders, including, without limitation, any specific differences to the Customer Taxes and Fees applicable to Your Order based upon the type of order (e.g., delivery vs. pick-up and in-state vs. out-of-state). You further acknowledge and agree that you shall be responsible for notifying TakeOut7, as soon as known to you, about any changes to the Customer Taxes and Fees to be imposed upon Your Customers. TakeOut7 shall apply those Customer Taxes and Fees that you have specified in writing (email sufficing) with respect to Your Orders. You shall be responsible for regularly reviewing and confirming the accuracy of any Customer Taxes and Fees to be imposed on Your Customers on an order-by-order basis. Under no circumstances shall TakeOut7 be responsible for calculating or adjusting the Customer Taxes and Fees to be imposed on Your Orders, as specified by you, and you agree to indemnify and hold harmless TakeOut7 with respect to any claims related to any failure to charge the appropriate Customer Taxes and Fees to the extent that the actual Customer Taxes and Fees appropriately charged to Your Customers differs from those Customer Taxes and Fees that you have specifically instructed TakeOut7 to impose on Your Orders.
- You will not be charged any Fees for Platform and/or Service use and availability generally until such time as you have completed the Activation process as set forth in Section 3(i) above.
Section 8. Third Party Content and Services
- Portions of the Content and the Services may link to or be provided from a third party, including without limitation, a TakeOut7 Service Partner, including without limitation third party databases, directories, applications, websites, software, programs, services, servers, networks, and systems (collectively, “Third Party Services”). These Third Party Services are provided to You by TakeOut7 for convenience only. In no way doesTakeOut7manage or control any of theThird Party Services or Content. TakeOut7 shall have no responsibility with respect to any Third Party Services and/or Content, including without limitation, the accuracy, availability, truthfulness, or functionality of any such Third Party Services or Content. TakeOut7does not endorse or warrant any such Third Party Services and/or Content or any product, service or advertising that may be available through such Third Party Service and/or Content in any way by virtue of making it available to you.
- Some or all of the Services and Content provided by TakeOut7pursuant to this EULA may require the sending, delivering or receiving of information between related to you or your customers to certain Third Party Services, including without limitation payment processing providers. Any such information may be processed, transferred, relayed or carried through networks, systems, servers, websites or applications (e.g., telephone and cellular networks, e-mail servers) that are not owned or controlled by TakeOut7 (“Third Party Networks”). Under no circumstances shall TakeOut7 in any way be responsible for the performance, functionality, quality, availability, or reliability of any of the Third Party Networks or any of the information processed, transfer, sent, delivered, relayed, carried or received through any such Third Party Networks. TakeOut7makes no guarantee or warrantythat the information processed, transferred, sent, relayed, carried or delivered through Third Party Networks will reach its intended destination, or that the details of the recipient or sender are correct or accurate.
- In some circumstances, TakeOut7 works with Third Party Service providers engaged in delivery services to enable delivery of Your Orders to Your Customers (“Delivery Providers”). If you choose to enable the use of an available Delivery Provider, you shall be solely responsible for all coordination between you, the Delivery Provider and Your Customers. Without limiting the foregoing, you shall be responsible for (i) preparing the food associated with Your Order and having it available for pick up by the Delivery Provider at the agreed upon pick up time; (ii) properly packaging Your Order in a manner that makes transport easy to carry in a Delivery Provider vehicle (withstanding all reasonable handling and transport disruptions); (iii) properly marking each part of Your Order in an easily identifiable manner (e.g., attaching the delivery ticket with Your Customer’s name and Your Order number attached to the delivery); (iv) ensuring that Your Orders are complete in all aspects in accordance with Your Customer’s instructions, as stated in Your Order; (v) ensuring the food is of a high quality as expected by Your Customers; and (vi) confirming that the Delivery Provider’s driver receives the proper order materials at time of pick up. As between TakeOut7, on the one hand, and you, Your Customers, and/or the Delivery Provider, on the other hand, TakeOut7 shall have no liability to either you, Your Customers, or the Delivery Provider with respect to issues associated with the Third Party Services associated with delivery, including claims and food cost reimbursements as among you, Your Customer, and the Delivery Provider. You agree that, if in the course of delivery, the exterior packaging of Your Order is damaged, but the contents were NOT damaged, Your Order will still be delivered to Your Customer and, solely if Your Customer raises an objection, the Delivery Provider maywaive its delivery fee for such order. You further agree that if in the course of delivery the contents of Your Order are damaged, but the exterior packaging was NOT damaged, Your Order will still be delivered to Your Customer and, solely if Your Customer raises an objection, you shall be responsible for refunding Your Customer as appropriate, unless it is unclear whether the damages to the contents were caused by poor packaging (your responsibility) or as a result of the delivery process (the Delivery Provider’s responsibility), in which case you shall be responsible for refunds related to food costs and associated taxes and the Delivery Provider maywaive its delivery fee for such order. If the driver for a Delivery Provider is does not pick up Your Order at your store location more than 15 minutes beyond the agreed pick-up time, either you or Your Customer may complain to the Delivery Provider, in which case the delivery fee maybe waived, and you and the Delivery Provider will be responsible for arranging settlement as to your food costs associated with that order. If either you or Your Customer complain about the Delivery Provider services for any reason not set forth above, you and the Delivery Provider will be responsible for arranging settlement as to your food costs associated with that order.
9. Representations and Warranties
You represent, warrant and covenant that at all times during the term of this EULA:
- the individual accepting this EULA is authorized to act on behalf of you and to bind you to this EULA;
- you have the full power and authority to conduct your business, to enter into this EULA, and to perform your obligations under this EULA;
- your execution, delivery and performance of this EULA will not conflict with or violate: (i) any provision of law, rule or regulation to which you are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your organizational documents; or (iv) any terms and conditions or other instrument applicable to you;
- you have all necessary right, title and interest in and to Your Content provided by you, and Your Content does not infringe or otherwise violate any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitute false advertising, defame and/or violate any law or regulation; and
- you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
Section 10. DISCLAIMER OF WARRANTIES
- TAKEOUT7HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PLATFORM AND SERVICES, THE WEBSITES AND/OR ANY CONTENT DELIVERED, SENT, ACCESSIBLE, OR RECEIVED BY OR THROUGH THE PLATFORM AND THE SERVICESOFFERED BY TAKEOUT7, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.TAKEOUT7 IS PROVIDING THE PLATFORM AND SERVICES TO YOU SOLELY ON AN “AS IS, AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TAKEOUT7 DOES NOT REPRESENT OR WARRANT TO YOU THAT (i) YOUR USE OF THE PLATFORM AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (ii);YOUR USE OF THE PLATFORMAND/OR SERVICES WILL MEET YOUR REQUIREMENTS (iii) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY PLATFORMAND/OR SERVICES WILL BE CORRECTED; (iv) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE PLATFORM AND/OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY CONTENT SOURCED FROM THIRD PARTIES, WILL BE ACCURATE OR RELIABLE; AND (v) YOU MAY USE ANY OF THE CONTENT MADE AVAILABLE BY OR THROUGH THE PLATFORM AND/OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY CONTENT SOURCED FROM THIRD PARTIES.TAKEOUT7DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, AVAILABILITY, RELIABILITY OR THE RESULTS OF THE USE OF THE PLATFORM AND/OR THE SERVICES, OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY TAKEOUT7 SERVICE PARTNER SERVICES AND/OR TAKEOUT7 SERVICE PARTNERCONTENT, OR THE INFORMATION AND CONTENT DELIVERED, SENT, OR RECEIVED BY OR THROUGH THE PLATFORM AND/OR SERVICES IN TERMS OF THE ACCURACY, VALIDITY, QUALITY, RELIABILITY, COMPLETENESS, STABILITY, CURRENTNESS, NON-INFRINGEMENT, OR OTHERWISE, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PLATFORM AND SERVICES, IS ASSUMED AND BORNE BY YOU.SOLELY TO THE EXTENTTHE ABOVE LIMITATIONS ARE UNLAWFUL IN YOUR JURISDICTION, THEN OUR LIABILITY TO YOU WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- ANY CONTENTDOWNLOADED OR OTHERWISE ACCESSEDTHROUGH THE USE OF THE PLATFORM AND/OR SERVICES IS DONE AT YOUR OWN RISK AT YOUR SOLE DISCRETION. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISING THEREFROM, INCLUDING WITHOUT LIMITATION, DAMAGESRESULTING FROM THIRD PARTY CLAIMS RELATED TO SUCH USE AND DAMAGES TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT, INCLUDING THE PLATFORM AND/OR ANY PORTION OF THE SERVICES.
Section 11. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER TAKEOUT7NOR ANY TAKEOUT7 SERVICE PARTNER WILL, IN ANY EVENT, BE LIABLE TO ANY PARTY, INCLUDING YOU
- FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE PLATFORM AND/OR SERVICES PROVIDED BY TAKEOUT7OR ANY TAKEOUT7 SERVICE PARTNER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE;
- FOR THE TRANSMISSION OR DELIVERY OF ALL OR ANY PART OF ANY INFORMATION OR TAKEOUT7 CONTENT, FOR ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION OR THE TAKEOUT7 CONTENT;
- FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, DELAYS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY INFORMATION OR TAKEOUT7 CONTENT, INCLUDING ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
- ANY CHANGES WHICH TAKEOUT7OR ANY TAKEOUT7 SERVICE PARTNERMAY MAKE TO THE PLATFORM AND/OR SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE PLATFORM AND/OR SERVICES (OR ANY FEATURES WITHIN THE SERVICES);(v)IF ANY INFORMATION OR TAKEOUT7 CONTENT INFECTS OR CONTAMINATES A USER’S SYSTEM OR INFORMATION OR CONTENT;
- YOUR FAILURE TO PROVIDE TAKEOUT7 WITH ACCURATE ACCOUNT INFORMATION ORYOUR FAILURE TO KEEP YOUR USERNAME, PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, AS APPLICABLE.THE FOREGOING LIMITATIONS ON THELIABILITY OF TAKEOUT7OR ANY TAKEOUT7 SERVICE PARTNERTO YOU SHALL APPLY WHETHER OR NOT TAKEOUT7 HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. SINCE SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, TAKEOUT7’S AND TAKEOUT7 SERVICE PARTNERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHICH SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE TOTAL FEES PAID BY YOU TO TAKEOUT7 IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
Section 12. Termination
Unless otherwise set forth in an order form which incorporates this EULA by reference, the term of use for the Platform and the Services pursuant to this EULA shall be for a period of twelve (12) months from the date you agree to this EULA (the “Initial Term”). This EULA shall renew, and the Platform and Services shall continue to be made available to you thereafter for additional periods of one calendar month after the expiration of the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Term”). You may terminate this EULA and your access to the Platform and Services upon thirty (30) days prior written Notice to TakeOut7 at least thirty (30) days prior to the end of the then-current Term with respect to the Platform and all other Services. Either you or TakeOut7 may terminate this EULA if the other party hereto materially breaches any provision hereof and such breach, to the extent capable of being cured, is not cured within ten (10) days of receipt of Notice of such breach by the breaching party. Notwithstanding the foregoing, TakeOut7 reserves the right to suspend and/or terminate its legal agreement with you pursuant to this EULA and all access to the Platform and Services at any time and for any reason or no reason without restriction. Until a termination, this EULA will continue to apply to you and your use of the Platform and/or Services.Upon the termination of this EULA, all of the legal rights, obligations and liabilities that you and TakeOut7 have benefited from, been subject to (or which have accrued over time during the period in which the EULA has been in force) or which are expresslycontinued indefinitely by the terms hereof, shall continue in full force and effect without termination, including as set forth in Section 19(c) hereof.
Section 13. Trademark and Copyright Claims Policy
TakeOut7 will (i) respond to all notices of alleged infringement of a third party’s copyright and/or trademark rights in accordance with applicable intellectual property law, including, in the United States, the Digital Millennium Copyright Act, and (ii)take action against TakeOut7 users found to be in violation of a third party’s intellectual property rights. TakeOut7’s complete policy is available at http://www.takeout7.com/copyright.
Section 14. EULA Amendments and Modifications
TakeOut7reserves the right, in its sole discretion, to amend, modify and otherwise change the terms of this EULA at any time. Any such changes to this EULA will be posted at http://r.takeout7.com/EULA. In the event there are material changes to the EULA, TakeOut7 will provide notice to you either by sending you notice either via email or mail, in its sole discretion, or by posting a notice of such changes in a prominent position within the Services accessed by you. Any use of the Platform and/or Services by you after the date the EULA is changed shall constitute your acceptance of the EULA, as modified for all purposes.
Section 15. Indemnification.
As additional consideration for your use of the Platform and/or Services, you agree to fully indemnify and hold harmless TakeOut7 and its officers, employees, agents, affiliates, partners, licensors, parents, subsidiaries, andTakeOut7 Service Partnersfrom and against any demand or claim, including reasonable attorneys’ fees, made by any third party due to or arising out of
- your use of the Platform and Services,
- any violation by you of this EULA,
- any of Your Content you submit, post, transmit or otherwise make available through the Platform and/or Services,
- your use of any TakeOut7 Content provided to you by or through the use of the Platform and/or Services, and/or any
- violation by you of any rights of another.
Section 16. Privacy and Security
- You acknowledge that, as with most Internet applications, there are certain inherent risks associated with accepting or downloading files from or through the Platform and/or Services, including without limitation, (1) damage to any data or files stored on your computer, (2) the potential that other TakeOut7 users will have access to and be able to view your personal data, including your IP address, (3) potential damage to your computer systems, and (4) the potential that Your Content shared through the Platform and/or Services will be redistributed and/or used without your permission or knowledge.
- You further acknowledge that you are aware that
- data and information on the Platform and/or Services may be subject to forgery, tampering, sniffing, spamming, eavesdropping, spoofing, password cracking, harassment, fraud, electronic trespassing, hacking, nuking, system contamination including viruses, worms and Trojan horses causing unauthorized, damaging and/or harmful access to, or retrieval of, information and data on your computer systems;
- the Platform and/or Services will have security and privacy limitations that may not be acceptable to you, including without limitation the limitation of security, privacy and authentication measures and features;
- the privacy and securityfeatures available through the Platform andthe Servicesare provided to you solely as a convenience and may not operate according to their description or may not operate at all;
- information, data or messages may not reach their destination or may reach an erroneous address or recipient; and
- by activating certain features, you may provide third parties with certain limited remote access to certain files on your computer systems. Activating these features increases the risk that third parties will be able to tamper with your computer systems.
Section 17. Confidentiality
Each party will hold all Confidential Information (as defined below) of the other party in strict confidence and will not disclose any Confidential Information to any third party during the Term and for a period of three (3) years thereafter. The parties will disclose the Confidential Information of the other Party only to its respective employees, contractors, agents, and, in the case of TakeOut7, TakeOut7 Service Partners, who need to know such information for the purposes of performing their respective obligations under this EULA. Neither party will use any Confidential Information of the other party for the benefit of itself or any third party or for any purpose other than performing its obligations under this EULA. Each party will use the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information of the other party. “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, lists, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of this EULA. Notwithstanding the foregoing, Confidential Information does not include information that:
- is or becomes generally available to the public through no breach of this EULA or any other agreement by the recipient of the information;
- is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records;
- is received from a third-party that is not under an obligation of confidentiality to the knowledge of the disclosing Party with respect to such information;
- is independently developed by the recipient of the information without any breach of this EULA, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or
- is approved for release in advance in writing by the disclosing Party, as applicable. If the disclosure of Confidential Information of a party is required by law, such party shall promptly notify the disclosing party in advance of such required disclosure where lawfully able to do so and use its best efforts to minimize the scope of such disclosure.
Section 18. Rights and Remedies
- In addition to any other legal remedies that may be available to TakeOut7, we may seek and obtain injunctive relief against You in the event of a disclosure or misuse or threatened disclosure or misuse of any of the proprietary and/or Confidential Information of TakeOut7 contained in or accessible through use of the Platform and/or Services, the disclosure of which would give rise to irreparable injury to TakeOut7 and/or its TakeOut7 Service Providers, which could not adequately be compensated in damages.
- This EULA, including without limitation, TakeOut7’s enforcement of the terms of this EULA, are not intended to confer, nor do they confer, any rights or remedies upon any person other than TakeOut7 and its TakeOut7 Service Providers, that are intended third party beneficiaries hereof.Nothing contained in this Agreement is intended to confer upon any person not a party to this Agreement any rights or remedies in any circumstance, unless otherwise provided for herein.
Section 19. General Terms
- Construction. If any part of this EULA is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties hereto, and the remaining portions shall remain in full force and effect.
- Notices. Any and all legally required communications, including notices, disclosures,agreements, or other information required in connection with any of the Platform and/or Services may be sent to you electronically, includingvia (i) e-mail to an e-mail address provided by you, and/or (ii) by pop up notice, system notice, or any other form of notice, on any portion of the Platform and/or Services and/or by (iii) posting the notices on a main page or other page of the relevant Service, from TakeOut7 and you consent to the receipt of same (hereafter, “Notices”). TakeOut7 may provide Notices to You regarding the Platform and Services, including without limitation any notices with respect to violations of this EULA, any updates to the PlatformServices or the EULA, or any portions thereof, and promotional information. Regardless of whether you read a Notice when you receive it, the delivery of any Notice from TakeOut7 is effective when sent by TakeOut7. You may withdraw your consent to receive Notices electronically by canceling your use of the Platform and Services. Notices to TakeOut7 shall be sent to firstname.lastname@example.org.
- Survival. Sections 2, 3(c), 3(d), 5 through 7, 9 through 12, and 15 through 19 shall survive the termination of this EULAfor any reason and the termination of your use of all or a portion of the Platform and/or Services.
- Applicable Law. This EULA, including any amendments hereto, shall be governed by and construed in accordance with the laws of the State of Connecticut, excluding its conflicts-of-law rules. Notwithstanding the foregoing, your use of all or a portion of the Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with TakeOut7 or relating in any way to your use of the TakeOut7 Services resides in the courts of Hartford county, Connecticut. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of Connecticutin connection with any such dispute, including any claim involving TakeOut7 or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. The UN Convention on Contracts for the International Sale of Goods shall not apply to this EULA.
- Assignment. TakeOut7 reserves the right, in its sole and absolute discretion, to transfer, assign, sublicense or pledge in any manner whatsoever, any of its rights and obligations under this EULA to any third party whatsoever, without your consent and without notice to you. You shall not transfer, assign, delegate, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. Any purported assignment, sale, transfer, delegation or other disposition by you, except as permitted herein, will be null and void.
- Recovery of Fees by Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one party against the other party relating to this EULA or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, will be entitled to reimbursement from the other party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
- Force Majeure. TakeOut7 will not be deemed in default of this EULA to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of TakeOut7.
- Severability. If the application of any provision of this EULA to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this EULA will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
- Independent Contractors. The relationship of TakeOut7 and you established by this EULA is that of independent contractors, and nothing contained in this EULAwill create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
- Export Control. You agree to abide by U.S. and other applicable export control laws and not to export, re-export or otherwise transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws or to any person to whom exports, re-exports or transfers are prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to TakeOut7 any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
- Notice for California Users. Pursuant to California Civil Code Section 1789.3, users of the Platform and/or Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may also contact TakeOut7 at the address set forth in Section 19(b).
- Headings. The headings and captions used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
- Construction. The construction of this EULA will not take into consideration the party who drafted or whose representative drafted any portion of it, and no canon of construction will be applied that resolves ambiguities against the drafter of a document.
- Entire Agreement. The provisions of this EULA, including any Exhibits hereto which are incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and this EULA supersedes all prior agreements or representations, oral or written, regarding such subject matter.
Platform and Services Description
The Service of the Platform provides you with a custom ordering website hosted by TakeOut7, as configured by TakeOut7 using information and menu data you provide to TakeOut7. The Platform allows you to
- install an “Order Online” button on your website which links to the TakeOut7 hosted online menu page,
- displays your available menu items, along with all appropriate branding,
- allows your customers to select items available to order,
- allows your customers to enter their information necessary to complete their order, including credit card information,
- processes the credit card and confirms the order, including appropriate confirmations to the customers, and
- notifies you of a completed order for fulfillment. Following the deduction of TakeOut7’s Fees, as provided below, TakeOut7 shall remit the balance of your customer’s payment within fourteen (14) days.
The Fees for the Service are set forth in the order form which incorporates this EULA by reference and shall be deducted from your customers’ payments, unless otherwise agreed in the order form.
For TakeOut7eZ Customer Only:
If elected by you at the time of signing up for the TakeOut7eZ Service, there will be included with the Service and the provision of the Platform certain hardware, including a printer and microcomputer or tablet through which online orders received through use of the Platform will be transmitted to you and print out at your restaurant location.
Tablets are configured for each specific restaurant utilizing the Platform to display Your Orders for such restaurant initiated by Your Customers. These tablets are and shall remain at all times the property of TakeOut7 and are secured and controlled by TakeOut7 using a Mobile Device Management system which restricts the device from being used for any other purpose. TakeOut7 will typically ship the tablet to you free of charge, provided that (i) you implement and prominently display TakeOut7’s online ordering button on an exclusive basis on the applicable restaurant’s home page; and (ii) you update your Google My Business Listing to link online ordering and menu to the TakeOut7 online ordering interface provide as part of the Platform. In the event you fail to undertake either (i) or (ii) immediately above, TakeOut7 reserves the right to charge you $150 for set up and configuration of such tablets. Additionally, if the tablet is damaged by you, you agree that TakeOut7 can charge you $150 to set-up, reconfigure and ship a new tablet to you. All tablets must be returned by you within thirty (30) days of termination of the Platform and Service, or you agree that TakeOut7 can charge you $150 for the cost of the tablet.
With respect to printers, you are responsible for maintaining them, including supplying paper and ink to the printer, as well as providing an Internet connection that will allow the printerto receive orders through the Platform. You agree to pay the price specified for the printer at the time you sign up to receive the TakeOut7eZ Service, which amount varies based upon the printer you agree to purchase. If the printer is damaged or needs to be replaced, you agree that TakeOut7 has the right and that you shall be responsible for paying for all costs associated with the new printer to the extent such printer was damaged by your misuse or neglect. If you have purchased the printeron an installment basis, you can terminate your use of the Service and Platform at any time, but you will remain responsible for the payment of the balance of any fees owed for the printer.