The terms and conditions of this Agreement are intended to clarify and communicate the commitments between you, the Customer, and us, eMenu International Inc. (“eMenu”), a Delaware Limited Corporation.
- Your License
eMenu grants you a personal, limited, non-exclusive, revocable, non- transferable license, without the right to sublicense or assign in any way, to electronically access and use the Service solely to manage your establishment and market your menu to customers. The Service includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including hardware systems, software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by eMenu. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when eMenu makes these updates available. You agree that all Updates, Upgrades and Fixes or Workarounds furnished to you shall be deemed to be part of such Product subject to the terms and conditions of the software agreement for the Product. While we want you to enjoy the Service, you may not, nor may you permit any third party to do any of the following: (i) access or attempt to access eMenu systems, programs or data that are not made available for public use: (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from eMenu; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
Both the Apple iPad(s) (“iPad”) and Service are licensed to Customer and not sold unless otherwise written in the Order Form. eMenu reserves all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. eMenu owns the title, copyright and other worldwide Intellectual Property Rights in the Service and all copies of the Service. This Agreement does not grant you any rights to eMenu’s trademarks or service marks. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place eMenu under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, eMenu does not waive any rights to use similar or related ideas previously known to eMenu, or developed by its employees, or obtained from sources other than you.
- Acceptance of iPad(s)
Upon picking up or delivery of the iPad from eMenu, Customer shall immediately inspect the iPad. Unless the Customer informs eMenu in writing within three (3) days from the date of pickup or delivery, specifying any defect or objection to the iPad, Customer will be conclusively presumed to have fully inspected and acknowledged that the iPad is in good working order and that Customer is satisfied with and has accepted the iPad. Once accepted the iPad cannot be returned to eMenu except in accordance with the terms of this Agreement.
- Use of the iPad(s)
If the iPads are eMenu’s property and / or as long as you insurance insure the iPads via eMenu, you must take care of the iPad(s), keep them in good condition. Additionally, you must not use the iPad(s)under any of the following conditions or for any of the following purposes: (i) close to inflammable or dangerous goods, as well as toxic, corrosive, radioactive or other harmful substances; (ii) carrying anything which, because of its smell or condition, harms the iPad(s); (iii) connect any accessory (subject to prior authorization by eMenu), unless supplied by eMenu; (iv) re-rental to or use by other unauthorized persons; (v) conduct illegal activities or cause damage to equipment, personnel, loss of software or violate the safety of any software or brand; (vi) tamper with the hardware or remove components from the iPad(s).
- Maintenance Problems
When the Customer receives the iPad, the Device will be fit for normal use. Customer shall, at Customer’s sole expense, unless otherwise is written in the order form maintain the iPad in good repair, condition and working order. If eMenu insures the iPads the customer must immediately to inform eMenu of any malfunction or damage.
The Term of this Agreement is for a period of eighteen (18) months (the “Initial Period”) unless if at the client’s ordering form a different period is written. Thereafter, the Term shall be automatically extended for an additional twelve (12) months unless cancelled by either party, in writing, at-least sixty (60) days prior to the end of the Term.
- Late Payment
If payment is not made by Client by the monthly due date, as set forth in the payment terms of the Order Form, eMenu shall be entitled to charge interest on all overdue amounts. Such interest shall be charged at the rate of 3.5% per annum above the base rate of HSBC Bank Plc. Interest shall accrue on a daily basis and be compounded quarterly.
Pricing Review and Linkage to CPI
All prices will be reviewed annually. Prices are linked to the Consumer Price Index in the United States as published by the Office for National Statistics.
Changes to Agreement
The parties agree that either eMenu may from time to time amend these standard terms and conditions. Posting such changes on eMenu website shall constitute sufficient notice. Such changes will go into force within 30 days of posting.
THE E-MENU SYSTEM IS PROVIDED “AS IS” AND EMENU DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONCEPTIC DOES NOT WARRANT THAT THE EMENU SYSTEM WILL BE FREE FROM DEFECTS, OR THAT COMPANY OR SUBDISTRIBUTOR OR END USER USE OF THE E-MENU SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER EMENU NOR CONCEPTIC ARE NOT RESPONSIBLE, AND HAVE NO LIABILITY FOR ANY HARDWARE, SOFTWARE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OTHER THAN EMENU OR CONCEPTIC. EXCEPT FOR ANY WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE E-MENUSYSTEM OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE EMENU SYSTEM REMAINS WITH THE COMPANY. TO THIS END THE COMPANY SHALL BE AFFORDED A PERIOD OF THIRTY (30) DAYS FROM DATE OF DELIVERY TO REVIEW AND ASSESS THE EMENU SYSTEM AND ANY UPGRADES AND/OR IMPROVEMENTS THERETO IN ORDER TO SATISFY ITSELF AS TO THE QUALITY AND PERFORMANCE OF THE EMENU.
LIMITATIONS OF LIABILITY & EXCLUSION OF CONSEQUENTIAL LOSS
EMENU SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT [INCLUDING NEGLIGENCE], STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EMENU OR CONCEPTIC’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO EMENU BY THE OTHER PARTY HERETO PURSUANT TO THIS AGREEMENT. FURTHER, CLIENT EXPRESSLY WAIVES AND RELEASES BOTH EMENU AND CONCEPTIC, AS WELL AS THEIR OFFICERS, EMPLOYEES, DIRECTORS, PARTNERS, AGENTS AND ATTORNEYS ALL OF THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY CLAIMS, LIENS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, LIABILITIES AND/OR DAMAGES, KNOWN OR UNKNOWN, THAT CLIENT HAS HAD IN THE PAST, NOW HAS OR MAY HAVE IN THE FUTURE AGAINST THE RELEASED PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THE EVENT.
This Agreement is non-assignable and non-transferrable without the express written consent of eMenu.
Neither eMenu nor Conceptic shall not be liable for its failure to perform or for limited or interfered performance due to Acts of God; labor troubles, disputes or strikes; government regulations; utility shortages, power failures, acts of terrorism; or any other cause, whether specifically enumerated herein or not, beyond its control.
Any dispute in any way arising out of or relating to this Agreement will be resolved by arbitration before JAMS or American Arbitration Association in the State of New York, County of New York. The parties further agree that in any arbitration proceeding they may conduct reasonable discovery pursuant to the arbitration rules, that the law of the State of New York will be the governing law, and any arbitration award will be enforceable in all state and federal courts, regardless of jurisdiction.
If any covenant, obligation, term or provision of this Agreement, or the application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such covenant, obligation, term or provision or party or circumstance other than those as to which it is held invalid or unenforceable shall not be affected thereby and each covenant, obligation, term and provision of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law.
Governing Law and Jurisdiction
This agreement shall be governed by and construed in accordance with the laws of the State of New York and any disputes arising or relating to this Agreement or any of the Related Agreements, not otherwise resolved by Arbitration, shall be brought in either the federal court or New York state courts located in the County of New York, each party hereby consenting to the exclusive jurisdiction and venue of such court and county.
No delay or omission by eMenu in exercising any right shall operate as a waiver of such right or any other right. Failure to enforce any provision of this Agreement shall be not deemed to constitute a waiver of such provision. Waiver of any of the provisions of this Agreement shall not be deemed to constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. No waiver by any party of any breach hereunder shall be deemed a waiver of any other or subsequent breach.
We have implemented technical and organizational measures designed to secure your data from theft, accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information and data at your own risk and neither eMenu nor Conceptic shall be liable for any breach of security and/or loss of data.
In the event the Customer’s iPad(s) are stolen, you must immediately inform eMenu in writing. eMenu will then be entitled to take all measures which it deems necessary to protect its rights. You will be liable for all damage, cost and/or expenses associated with the above measures and for any direct, indirect, consequential damages to the iPad unless otherwise written in the ordering form or unless it is demonstrated that eMenu is directly responsible for such damages. Furthermore, this Agreement may be automatically terminated by eMenu, in its sole discretion, if it finds Customer’s actions detrimental to eMenu.
Any images contained in or displayed on your eMenu, other than as submitted by you, are the property of eMenu or are used by eMenu with the consent of the copyright holder. The use by you of any such images (or any portions thereof) without the express written consent of eMenu or the copyright holder is prohibited.
- Limitation on Time to Sue
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this Agreement or by law must commence within one year after the cause of action accrues.