Please read the following terms of this agreement carefully. By completing the signup process, you accept and agree to all of the terms and conditions set forth in this Customer Purchase agreement. You hereby acknowledge that you are 18 years of age or older. This Agreement (“Agreement”) is entered into by and between MenuDrive (“Company”) and You (“Customer”).
1. Website: Customer hereby agrees to appoint the Company for the creation of Desktop and Mobile Ordering Applications, Informational Website, and iPhone and Android Mobile Apps (collectively referred to as the “Website”).
2. Setup: If Customer opted for Company to setup its Website, Company will setup the Desktop and Mobile Ordering Applications Draft for first store location within 15 business days from date of the enrollment. Customer is responsible for providing Company all information needed for setup within 3 business days from date of enrollment. Initial setup of first location includes but not limited to setting up Customer’s location description, store hours, photos, 150 menu items of choice, online menu design, payment gateway, and methods of receiving online orders. Setup is limited to the input of only 150 menu items of choice, and Company has the right to issue a charge of $0.75 for each additional menu item. Customer must notify Company of any changes within 5 business days from the date when Customer was first notified to review the Website. Customer will receive two free Menu Revisions. Additional menu revisions will be billed at $45 per hour. After setup is performed and website is agreed by both parties to be in proper working condition, Customer assumes all responsibilities to manage its Website. “Manage” is defined as updating the Desktop and Mobile Ordering Applications’ menu items and pricing, store description, contact info, hours of operation, photos, coupon codes, and payment details. Company can perform menu updates based on the rate of $45 per hour.
3. Content on the Website: Customer shall be responsible for content and result of the content on Website. The content includes but is not limited to menu items, prices, photos, data, links, advertising, trade or service mark, trade name, and any information included on the Website. Customer shall comply with all applicable rules, laws, and regulations in connection with the content of Website. Company reserves the right to refuse to display information it believes to be illegal, false, derogatory, offensive, infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person. Customer represents that any elements of text, graphics, photos, designs, trademarks, artwork, and all proprietary or intellectual property rights therein included on the Website are owned by Customer, or that Customer has express written authorization from the rightful owner to use and display the content, and will hold harmless, protect and defend Company from any claim or suit occurring from the use of such content.
4. Credit Card Processing: Customer is responsible for the enrollment and fees associated with using a third-party payment processing and credit card gateway.
5. Faxing Services: If Customer chooses to receive orders by Fax, Customer will be charged $0.10 per fax order for the month. Furthermore, Company provides Faxing Services only to Customers in the U.S., Canada, and Puerto Rico.
6. Mobile Apps: It is optional to have branded iPhone & Android Mobile apps. There is an additional one-time setup fee for building and designing the apps. Also, after the apps have been published to the apps markets, there is a design revision fee per request; please see the pricing page for details on the fees. In addition, Company will use commercially reasonable efforts to have the mobile apps approved by the appropriate mobile platform providers. Although there is a high likelihood of approval, Company does not and cannot guarantee acceptance. If the mobile app is denied by the appropriate mobile platform provider, Customer may cancel his or her service; however there are no refunds under any circumstances.
7. Website Ownership: Company owns all of the intellectual property rights associated with the Website. Furthermore, Company in no way, shape, or form is responsible for marketing Customer’s Website. Customer reserves the right to use its own personal Website URL in any manner in any and all commercial venues and is solely responsible for marketing the URL.
8. Charges and Fees: Customer agrees to pay by credit card or ACH deposit, and Company will automatically charge the service fees each month for the monthly subscription or each year for the annual subscription, and including any extra services and applicable taxes, at the rates in effect when the fees are incurred. For the annual subscription, the service fee shall be locked for one year. Company may, at its sole, reasonable discretion, agree to refund Customer certain fees paid in the event Customer cancels its annual subscription; provided, however, that Company reserves the right to withhold from any refund, and retain, an amount equal to its then-current setup fees, whether or not such setup fees were charged to Customer at enrollment.
Company will start billing the service fee right after launching each store’s Website. Company may change the fees then in effect, or add new fees, by giving Customers 60 days advance notice. Customer must provide Company with valid credit card or ACH information and must promptly notify Company of changes to the account holder name, account number expiration date or billing address of Customer’s designated card. Customer must also promptly notify Company if Customer’s card is placed on hold by Customer’s card issuer or canceled for any reason. Company reserves the right to suspend or terminate Customer’s Website without notice upon rejection of any card charges or if Customer’s card issuer seeks return of payments previously made to Company when Company believes Customer are liable for the charge(s). If Customer is liable for the charge(s), a $30 reactivation fee per store will apply to reactivate service. Once service is suspended, Company does not guarantee the same Website url (ex. menudrive.com/name chosen by Customer) will be available if service is reactivated. In addition, if the monthly service fee is over 10 days past due, Company has the right to issue Customer a $5 fee for each billing cycle that each monthly fee remains past due. Company will automatically renew and charge Customer’s credit card upon every expiration date of Customer’s subscription, unless Customer provides prior 3 days written notice to email@example.com that Customer have terminated this authorization or wish to change Customer’s designated card. The renewal charge will be equal to the original subscription price, unless Company notifies Customer otherwise in advance.
9. Smart Printer (if applicable with the subscription plan): Company shall deliver to Customer or shall have delivered on its behalf a receipt printer along with other peripherals (collectively, the “Smart Printer”). Title to the Smart Printer shall at all times remain in Company. Customer shall have no right, title, or interest in or to the Smart Printer except the right to possession and use thereof during the term and pursuant to the conditions in this agreement. The Smart Printer shall remain personal property, notwithstanding the manner in which they may be affixed to any real property. Customer shall at all times protect and defend, at Customer own cost and expense, the title and interest of Company from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of Customer and keep the Smart Printer free and clear from all such claims, liens, processes, and any other encumbrance. Customer shall not sublease, transfer, or dispose of the Smart Printer or grant or permit any lien on them. Customer agrees that Customer will not mortgage or otherwise encumber the Smart Printer.
Customer shall immediately notify Company of any problems with the Smart Printer, and shall use best efforts to work with Company to resolve the problems. As between the Parties: (i) Company shall be responsible for all repair and replacement of the Smart Printer; provided, however, that Customer shall be solely responsible for the costs of any repairs and replacement necessitated by Customer’s negligence or misuse of them; and (ii) Customer shall be responsible for the shipping costs of any repairs and replacement.
Upon cancellation of service by Customer, or at any other time upon demand by Company, Customer, at Customer’s sole expense, shall, as directed by Company, either (i) return the Smart Printer to Company (ii) fully cooperate with Company in the disposition of the Smart Printer. Customer shall ensure that the Smart Printer will be returned to Company free and clear of all claims, liens, processes, and any other encumbrances and in the same condition as when delivered to Customer, reasonable wear and tear excepted. Company may, in its sole discretion, automatically authorize Customer’s credit card or bank account provided during the enrollment process in the amount of $300 for each Smart Printer and retain such sums as a deposit (the “Deposit”) until such items are returned to Company in good working order. Upon such return, Company shall promptly credit Customer the amount of the Deposit. If one or more of the items are not returned, Company shall retain the applicable portion of the Deposit. At any time, upon any total or partial loss of or damage to the Smart Printer during the Term, Customer shall be responsible for, and Company may automatically draw against the Deposit and/or Customer’s credit card or bank account the value to replace or repair them, in whole or in part.
10. Cancellation: Customer may cancel use of Service by contacting Company and completing the cancellation form; contacting Company about cancellation by email and phone call is not acceptable; in addition, the setup fees for the menu and mobile apps are nonrefundable. Upon receipt of Customer’s cancellation, Company will promptly terminate Customer’s access to the Website. Customer is still responsible for any charges already incurred up until cancellation, and there is no prorate for partial months. If Customer issues a Chargeback for any fees by Company, then Company has the right to collect any fees, fines, and penalties brought upon by the Chargeback from Customer as well as the original fees. Company also reserves the right to terminate Customer’s subscription and/or discontinue Services at any time for any reason. Company shall have no responsibility to notify any third party of any suspension, restriction or cancellation of Customer’s Website. Company shall have no obligation to maintain any orders, reports, data, or other content in Customer’s Website or forward any data to Customer or any third party.
11. Fair Use Policy: Company shall have the absolute and unilateral right in its sole discretion to deny use of and access to all or any portion of Website to Customers who are deemed by Company to be using the Website in a manner not reasonably intended by Company or in violation of law, including but not limited to suspending or terminating a Customer’s license to use the Website.
12. Limitation of Liability: Notwithstanding the foregoing, under no circumstance shall Company, its officers, directors, employees, contractors, sub-contractors, suppliers, agents, affiliates, subsidiaries, successors or assigns be liable to Customer or any third party for damages in excess of the amounts actually paid by Customer to Company. The price of the service shall be the rate in effect on the day Customer signed up for the service.
13. Indemnification: Customer agrees to defend, indemnify and hold harmless Company, its parent entities, subsidiaries, affiliates, officers, and employees, from any and all claims and demands, including attorneys’ fees, due to or arising from your use of the Website and any other conduct related in any way to the Website, including but not limited to breaching any provision contained in these Terms and Conditions.
14. Termination: If Customer breach these Terms and Conditions of Use, Customer’s right to Use the Website shall automatically terminate if Customer fails to cure the breach after seven (7) calendar days after notice from Company or any of the Company Affiliates, unless Customer’s breach is due to violations in the sections of Lawful Use, No Transfers or Modifications by Customer, Indemnification, Trademarks, U.S. Government Restrictions, in which case termination will be without notice and without any right to cure.
15. Modification: Company, in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or Service Specific Terms which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (a) our email notification to you advising you of such changes or modifications (b) your continued use of the Services after Company posts the amended Agreement to menudrive.com/terms.
16. Billing: Customer must notify Company about any billing problems or discrepancies within thirty (30) days after they first appear on the statement Customer receives from its bank or credit card company or other billing company. Send such notification to us to firstname.lastname@example.org or by calling us at 877-787-MENU ext. 3. If Customer does not bring such problems or discrepancies to our attention within that thirty (30) day period, Customer agrees that it waives the right to dispute such problems or discrepancies.
17. Prohibited Content: No Customer may utilize the Services to provide, sell or offer to sell the following: controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others’ intellectual property or information; information used to illegally harm any people or animals; pornography, nudity, sexual products, escort services or other content deemed adult related.
18. Data: Company agrees not to sell the Customer’s Patrons’ contact data to any third parties looking to use it for marketing purposes. However, Company has the right to assign its obligations to Data to any transferee of its rights in the Website in connect with a sale or transfer of all or substantially all of such Company business or assets to which this Agreement relates. Company may also charge fees for various data import and export services, and will notify Customer of those charges at the time that Company offers the data import and export services.
19. Miscellaneous: These Terms and Conditions (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between Company and Customer regarding the Website, and supersedes all prior agreements between Customer and Company regarding the subject matters hereof.