PURCHASE, SERVICE, LICENSE AGREEMENT
This purchase, service
and/or license Agreement ("Agreement") is by and between
TransBoundaries Corporation, a California Corporation, doing business as, DBA, MealClick
("MealClick") and you ("Customer" or “Licensee”) for MealClick’s Interactive Restaurant Ordering System ("iROS") that may be comprised of certain products,
software license, and/or services as described below (the "System"). This Agreement shall be effective as of date
of Customer's signature of this Agreement, order placement, online order
placement, System usage, invoice date, payment, or order receipt
("Effective Date".) The following is a summary of the package
offering, basic terms and conditions. In the event of any inconsistency between
the terms contained herein and other provisions of the full Agreement, which is
available online at the MealClick website and may change from time to time, the
terms of the more specific and full Agreement provisions shall prevail.
1) Fees: a) One Time Fee consisting of iROS Package Cost and License Fee (if applicable) and b) Yearly Subscription Fee. 2) Fax Orders Cost: $0.00 per page, if any. Faxed orders may take up to 20 minutes to be received by Customer depending on many factors. 3) Service Term: 1 year (12 Months) commencing one calendar month after the Effective Date ("Service Commencement Date".) The Service Term ends 1 calendar year after the Service Commencement Date ("Service End Date".) The Service Term will automatically renew for an additional year unless canceled by Customer by providing a written notice 30-day prior to the Service End Date via conventional mail, email or fax. 4) Payment Term: All fees, including One Time Fee (if any) and Yearly Subscription Fee ("Fees"), must be paid at the time of placing the order and/or execution of this Agreement. 5) Installation of hardware (if any) and software, setup, menu entry, and any required configuration are all performed by and the responsibility of Customer. 6) All support is provides via email and remote access only.
I. CUSTOMER‘S RESPONSIBILITIES: Customer will be required to supply their own hardware and/or software for the System to operate properly.
1) Customer will supply a computer for installation of necessary software for proper operation with sufficient resources consisting Windows XP or higher. Customer will supply continuous connectivity to the Internet via static IP Address. Customer will supply network ready printer or IP printer for orders to print. 2) Customer shall receive and collect monies for all orders, including all applicable taxes, using whatever method Customer deems appropriate. Customer shall be responsible and liable for all processing, handling, security, and safekeeping of all transactions including all credit cards numbers and all credit card transactions. If Customer reimburses any sum of money to its customers, it shall do so directly with its customers. Customer shall deal with its customers in accordance with its own policies. 3) Customer is responsible and liable for its own computers, hardware and software including existing and future installations and upgrades. Customer is responsible to add the proper link or links to its own website to take its customers to the online menu to use iROS. The link or links must be used by Customer as exactly supplied by MealClick.
II. GRANT OF LICENSE: Subject to the terms of this Agreement, MealClick hereby grants to Licensee, and Licensee hereby accepts from MealClick, a temporary, non-exclusive, non-transferable license (“License”) to use and or access certain computer program(s) and documentation therefore (The program(s), locally installed or remotely accessible over the Internet or any other media, and documentation being collectively referred to as the “Software”), which is specified on the Agreement or if there is no such specification, designed by MealClick for use with the Products specified in this Agreement. Such License shall be subject to all of the terms and conditions set forth herein. The Software will be the version generally made available by MealClick as of the date of this Agreement. Further for as long as Customer retains MealClick’s services and Customer is not in default, MealClick will provide Customer with all updates, enhancements, additions, or releases (“Updates”) of the Software at no additional cost.
III. USE OF LICENSE: Licensee shall have the right to use the Software only for the uses and applications, in the systems and configurations, and at the location(s), specified in the Agreement. If Software resides on a local computer, the Licensee may copy the Software for back-up or archival purposes in support of the licensed use of the Software. Licensee may not use, copy, distribute, sub-license, lease, sell, or transfer the Software in whole or in part; merge the Software with other programs; or modify the Software in whole or in part, except in strict compliance with the foregoing license. When applicable, use of the Software shall be defined as operated through a web browser while the Software remains resident on a server or servers designated by MealClick. Licensee may not physically transfer the Software from one computer to another, and may not load the Software on a network server and/or Internet server, unless specifically authorized in writing by MealClick. The foregoing prohibitions include, without limitation, a prohibition against translating, decompiling, disassembling, or creating derivative works of the Software. Licensee shall not assign, lease, sub-license, or transfer the Software to another party. Licensee agrees that its obligations hereunder survive past the termination of this License.
IV. SUPPORT: For as long as Customer retains MealClick’s services and Customer is not in default, MealClick shall provide unlimited email support and remote access support only for the Software.
V. TERM: This License will terminate automatically if the Licensee fails to comply with any provision of this License or any provision of this Agreement or if Customer fails to timely pay any fees due hereunder. In the event of termination of the License, MealClick has the right to terminate any then active services relating to the System. This License will terminate automatically if the Licensee uploads content to the servers that are unlawful, illegal, pornographic, injurious, not related to Customer business or any other content that MealClick deems unsuitable. MealClick reserves the right to terminate use by any Licensee, for behavior that MealClick deems injurious to MealClick, any of MealClick’s equipment, Software, hardware, servers or to the general public. Behavior that is considered injurious includes but is not limited to: Mail Spam (the sending of large amounts of unsolicited email), displays of pornography, religious or political content, vending of guns or other harmful instruments, devices, or literature, and anything else that MealClick deems to be harmful. This License shall remain in effect until terminated. Licensee may terminate this License at any time and in accordance with this Agreement. Upon termination of this License, the Licensee agrees to return the Software and to stop using or accessing the Software, System and services, together with the documentation therefore and any copies thereof to MealClick. This License shall automatically terminate in the event Licensee fails to comply with any of the terms and conditions of this Agreement. MealClick's determination that Licensee has failed to comply with the terms and conditions of this Agreement shall be binding upon the Licensee.
VI. LICENSEE'S RESPONSIBILITY: Licensee assumes all responsibility for the selection of the Software to achieve Licensee's intended results, and for the use and results obtained there from. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SOFTWARE IS THE RESPONSIBILITY OF THE LICENSEE AND SHOULD THE SOFTWARE PROVE DEFFECTIVE IN ANY WAY WHATSOEVER, THE LICENSEE SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
VII. OWNERSHIP OF SOFTWARE: Licensee has been granted a License to use the Software, but has not acquired any right, title, or interest in or to the Software whatsoever. MealClick reserves any and all such legal and beneficial ownership in and to the Software, together with all modifications, updates, upgrades, enhancements, and improvements thereto, whether implemented by MealClick, Licensee, or a third party.
VIII. SERVICE DESCRIPTION: Customer may access the iROS Software over the Internet, which is an Internet based online store (“Store”) for Customer to sell its products and/or services. Customer acknowledges that system response may vary depending on many factors, including but not limited to services provided by the Internet Service Provider, distance from the local Internet Service Provider's central office, Internet congestion, upload and download speed of destination server. Furthermore, Customer acknowledges that MealClick does not guarantee that the service, System and Software will be uninterrupted, consistent, stable, or error free and as specified in this Agreement due to factors beyond MealClick’s control.
IX. NOTIFICATION SERVICES: MealClick shall notify the Customer of new orders immediately and automatically (without human intervention) upon receipt in one the following methods:
A) Order Control System Notification Services (“OCSNS”): This is the primary and preferred method for receiving order notifications. The OCSNS is comprised of Customer supplied printer and associated Order Control Gateway Software (“OCGS”) which will be install on Customer’s supplied computer. MealClick notifies Customer of incoming orders by printing orders on the printer. B) Fax Notification Services (“FNS”): Fax Notification Services are used as a backup for the OCSNS in case the later malfunctions or encounters any service interruption. If for any reason, iROS is unable to send orders to Customer using the OCSNS, orders will be sent to Customer via the fax. Fax will not incur any additional charges as long as it is used as a backup method. Customer recognizes that fax notification is usually used as a backup method by default. If Customer uses the Fax Notification Services as the main method for receiving orders, it is Customer’s responsibility to continuously monitor and check incoming faxes. Customer must supply their own fax machine and associated telephone line. C) Email Notification Services (“ENS”): The MealClick ENS enables Customer to receive an email notification of each order submitted through the System and is provided at no extra charge. Customer acknowledges that the Email notification service is usually used as a secondary backup method for submitted orders as well as for record keeping purposes. If Customer uses the ENS as the main method for receiving orders, it is Customer’s responsibility to continuously monitor and check incoming emails.
X. SYSTEM AND SERVICE MAINTENANCE: Periodically, the service, Software and System will need to be taken off-line for regular administrative servicing, server maintenance, and database maintenance. MealClick will make efforts to ensure that such regular servicing is performed off-hours. Additionally, there may from time to time be necessary emergency maintenance, the schedule and duration of which are unpredictable. As a result, Customer may experience occasional service outages. MealClick makes every reasonable effort to establish reliable service and hopes to avoid any such occurrences, but shall not be liable for any damages resulting there from such occurrences.
XI. CANCELLATION OF SERVICE: Service may be canceled at any time by providing 30-day prior written notice via conventional mail, email or fax. Customer agrees to pay any and all outstanding charges due MealClick. Customer acknowledges that the account is not continuously monitored for activity, and absence of activity will never constitute a termination request. Customer acknowledges that all Fees are non-refundable and that there are no pro-rated refunds for unused time, service, or early termination.
XII. LIMITED WARRANTY; LIMITATION OF LIABILITY: MEALCLICK DOES NOT WARRANT ANY HARDWARE. ALL HARDWARE SOLD OR SUPPLIED BY MEALCLICK, IF ANY, AS PART MEALCLICK’S SOLUTION IS PROVIDED AS IS. IT IS THE CUSTOMER’S RESPONSIBILITY TO OBTAIN WARRANTY INFORMATION AS DEEMED NECESSARY. MEALCLICK’S SOLE RESPONSIBILITY AND LIABILITY TO CUSTOMER SHALL BE TO REFUND ANY LICENSE FEE OR SUBSCRIPTION FEE PAID BY CUSTOMER FOR THE SOFTWARE, THE CHOICE OF WHICH SHALL BE AT MEALCLICK'S SOLE AND ABSOLUTE DISCRETION. THE PRODUCTS AND INSTALLATION ARE PROVIDED "AS IS" AND MEALCLICK MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, TO CUSTOMER OR ANY OTHER PARTIES. ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY MEALCLICK. MEALCLICK SPECIFICALLY, BUT WITHOUT LIMITATION, DOES NOT WARRANT THAT THE PRODUCTS OR THE SOFTWARE WILL MEET ANY PARTICULAR REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT WILL MEALCLICK BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCTS OR INSTALLATION, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. SPECIFICALLY, BUT WITHOUT LIMITATION, MEALCLICK SHALL NOT BE RESPONSIBLE FOR ANY LOST REVENUES, ANY COSTS INCURRED BY CUSTOMER IN THE USE OR RECOVERY OF PROGRAMS OR DATA OR THE ACQUISITION OF SUBSTITUTE HARDWARE, SOFTWARE, PROGRAMS, OR ANY CLAIMS OF THIRD PARTIES.
XIII. INDEMNIFICATION: Except to the extent that such is solely and directly caused by a breach of MealClick’s obligations hereunder, Customer assumes full responsibility for and liability arising out of the use of the Products, Software, and services, specifically including, without limitation, the use of the same alone or in combination with other hardware and/or software. CUSTOMER AGREES TO INDEMNIFY AND HOLD MEALCLICK, ITS SUPPLIERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVANTS, AND REPRESENTATIVES (THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, EXPENSES, DEMANDS, CLAIMS, DAMAGES, PROCEEDINGS, AND CAUSES OF ACTION, WHETHER AT LAW OR IN EQUITY, ARISING OUT OF OR RELATING TO THE USE OF THE SYSTEM, PRODUCTS AND/OR THE SOFTWARE BY CUSTOMER, EXCEPT TO THE EXTENT THAT THE SAME IS SOLELY AND DIRECTLY CAUSED BY THE BREACH OF MEALCLICK’S EXPRESS OBLIGATIONS HEREUNDER. IT IS EXPRESSLY AGREED THAT THE FOREGOING INDEMNITY SHALL INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATING TO THE ACTUAL OR ALLEGED NEGLIGENCE OR GROSS NEGLIGENCE OF THE INDEMNIFIED PARTIES, EITHER SOLELY OR IN COMBINATION WITH NEGLIGENCE OR OTHER LIABILITY OF CUSTOMER AND/OR OTHERS, EXCEPT AS SPECIFICALLY LIMITED IN THE PRECEDING SENTENCE. CUSTOMER AGREES TO DEFEND ANY SUIT OR ACTION BROUGHT AGAINST THE INDEMNIFIED PARTIES BASED ON SUCH EVENT AND TO PAY ALL COSTS AND EXPENSES IN CONNECTION THEREWITH OR RESULTING THEREFROM, INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES, PREJUDGMENT AND POST-JUDGMENT INTEREST, APPEAL BONDS, AND SUPERSEDEAS BONDS.
XIV. FORCE MAJEURE: Performance of any of MealClick’s obligations under this Agreement may be suspended without liability to the extent that such performance is prevented or hindered as a result of an act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain materials or equipment, governmental laws, regulations, or orders, or any other cause beyond the reasonable control of MealClick, or any labor trouble, strike, lockout, or injunction (whether or not such event is within the reasonable control of MealClick).
XV. CONFIDENTIALITY AND NON-DISCLOSURE: Customer recognizes that the System and other vital information (collectively, "Information") are valuable, special and unique assets of MealClick. Customer agrees that the Customer will not at any time or in any manner, either directly or indirectly, divulge, disclose, or communicate any Information to any third party without the prior written consent of the MealClick. Customer will protect the Information and treat it as strictly confidential. Customer will not permit any person or entity to examine, copy, or have access to the Information and the System. A violation by Customer of this paragraph shall be a material violation of this Agreement and will justify legal and/or equitable relief.
XVI, EQUITABLE REMEDIES: The parties acknowledge that any breach of the Confidentiality and Non-Disclosure provisions of this Agreement by Customer is likely to cause irreparable harm to MealClick for which monetary damages would be inadequate compensation, and Customer waives any argument to the contrary. As a consequence, the parties agree that if Customer fails to abide by the terms of this Agreement, MealClick is absolutely entitled to seek specific performance, including immediate issuance of a temporary restraining order or preliminary injunction enforcing the terms of this Agreement, and to judgment for damages caused by such breach, and to any other remedies provided by applicable law. Customer agrees that Customer will not oppose any effort by MealClick to obtain such equitable remedies on the basis that MealClick has an adequate remedy at law. This paragraph shall apply to this Agreement and all agreements executed between Customer and MealClick.
XVII. ENTIRE AGREEMENT AND AMENDMENTS: This Agreement contains the entire understanding of the parties hereto with respect to the subject matter contained herein and may be amended or terminated only by a written instrument executed by all parties or their respective successors. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein.
XVIII. APPLICABLE LAW AND VENUE: QUESTIONS CONCERNING THE INTERPRETATION AND/OR ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, U.S.A. ANY LITIGATION ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE FEDERAL OR STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA, AND BOTH PARTIES CONSENT TO THE JURISDICTION OF SAID COURTS.
XIX. PARTIES IN INTEREST: Customer may not assign its rights or obligations under this Agreement without the prior written consent of MealClick. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon MealClick, Customer, and their successors and assigns.
XX. PROVISIONS SEVERABLE: If any one or more of the provisions herein shall be held for any reason whatsoever invalid or unenforceable, then such covenants, agreements, or provisions shall be null and void and shall not affect the validity of any such remainder.
XXI. ATTORNEY'S FEES: If any action is instituted to enforce this Agreement or to recover damages for the breach hereof, the prevailing party therein shall be entitled to recover any costs or expenses incurred, including without limitation, costs of court, arbitration and attorneys' fees.
XXII. CREDIT CARD PAYMENT AUTHORIZATION: If applicable, Customer hereby authorizes MealClick to charge any due payment to the credit card on file/record for the entire duration of this Agreement. Customer understands that it is the Customer’s responsibility to make certain that adequate credit is available and will be liable for any charges incurred for insufficient credit, fees, or penalties. This authorization remains in effect unless it is voided in writing at least thirty (30) days in advance. Customer authorizes MealClick to charge the card on file/record during the first week of each quarter, or when payments are due, for all fees due for the next quarter and for any fees due from the previous quarter for the services the Customer has subscribed to, until Customer notifies MealClick otherwise in writing. Customer understands that the fees due will include the regular yearly subscription fees, if any, and may include additional usage fees, if any, from the previous quarter. Customer also understands that the first charge placed on the card may include the balance already due on Customer account, if any. Furthermore, Customer understands that a $30.00 US Dollars service charge will be added for each credit card transaction. Customer understands that MealClick will apply a chargeback fee to Customer’s account of $50.00 US Dollars, if Customer initializes a chargeback with the credit card issuer, to reverse payment without MealClick permission of any of the charges authorized on this form, and I agree to pay this fee if this occurs. Customer agrees to pay the credit card charges described hereunder in accordance with the Card Issuer Agreement.
XXIII. OTHER TERMS AND CONDITIONS: MEALCLICK OWNS, DISTRIBUTES AND/OR HAS EXCLUSIVE AND/OR NON-EXLUSIVEEXCLUSIVE RIGHTS TO THE SYSTEM COMPONENTS. THIS TRANSACTION IS CONDITIONED UPON SAID TERMS AND CONDITIONS HERETO. THE PRICES, SPECIFICATIONS, TERMS AND CONDITIONS ARE SATISFACTORY AND ARE HEREBY ACCEPTED. BY PLACING AN ORDER VIA MEALCLIK’S WEB PORTAL, BY PAYING A MEALCLICK INVOICE, OR BY SUBMITTING A PAYMENT FOR INITIAL OR RENEWAL SUBSCRIPTION, I/WE AUTHORIZE AND AGREE TO THE TERMS AND CONDITIONS AS SPECIFIED.