This Merchant Terms of Service is entered into by and between Ubermensch Group, LLC., (“The Ordering.app”),and the organization identified in the signature page (referred to as “Merchant”, “You” or “Your”). This agreement consists of these terms and any attachments (together the “Agreement”). The “Effective Date” of this Agreement is the date of Your acceptance.
If You are accepting this Agreement on behalf of a government entity, a company, or other entity, You represent and warrant that: (a) You have full legal authority to bind that agency, company, or entity to this Agreement; (b) You have read and understand this Agreement; and (c) You and your agency, company, or entity agree to this Agreement. If You don't have the legal authority to bind your agency, company, or entity, please do not accept this Agreement.
- “Brand Features” means a party’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
- “Confidential Information” means information that one party (or an affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
- “including” means “including but not limited to.”
- “Merchant Content” means: (a) all content made available to The Ordering.app by You under this Agreement; and (b) any Updates.
- “The Ordering.app Data” means data (i) provided to You by The Ordering.app to facilitate an order, and (ii) any reporting provided to You by The Ordering.app. This also includes any data related to User(s).
- “Update(s)” means the updates, refreshes, corrections, or modifications to Merchant Content.
- “Users” means users of The Ordering.app products and services.
- Merchant Content. You grant to The Ordering.app a perpetual, irrevocable, royalty-free, nonexclusive, worldwide license to use the Merchant Content in connection with The Ordering.app and its affiliates’ products or services. The Ordering.app may sublicense the license in this Section 2(a) to (i) affiliates and (ii) end users, to the extent necessary to permit end users to use The Ordering.app’s products and services, including those made available on third party devices and interfaces.
- The Ordering.app Data. The Ordering.app grants You a limited, royalty-free, nonexclusive, license to use The Ordering.app Data:
(i) to respond to User queries You have received from The Ordering.app’s products and services,
(ii) to communicate with particular Users identified by The Ordering.app (e.g. to process or deliver a food order); and
(iii) to provide assistance to those Users who have placed a food order.
You may share The Ordering.app Data with a service provider, solely to the extent that the data relates to the specific end user that selected or was connected to that specific service provider, and only to the extent required and necessary for You and the service provider to contact and provide services requested by to that end user. You may not provide any The Ordering.app Data to any other third party (other than the service provider as expressly permitted by the Agreement).
- Brand Features. You grant to The Ordering.app a nonexclusive, royalty free license during the Term to display Your Brand Features in connection with The Ordering.app’s fulfillment of its obligations under this Agreement.
- Retention of Rights. Except for the rights and licenses granted under this Agreement, as between the parties, Merchant retains all rights in Merchant Content and Merchant’s Brand Features, and The Ordering.app retains all rights in The Ordering.app’s technology, Brand Features, products and services and any content created, submitted, or used in connection with the The Ordering.app’s products and services, including (a) user-generated content; and (b) The Ordering.app-created content (for example, the Google quality control team’s corrections to Licensed Content).
- No Other Restrictions. Nothing restricts The Ordering.app from using content it obtains elsewhere or restricts either party from exercising any rights it has at law (including under the U.S. Copyright Act).
3. Merchant Obligations.
- For each order placed through the Service with a user, You are solely responsible for any and all claims and liabilities involving or related to those orders.
- You (i) must keep Your passwords secure and confidential; (ii) are solely responsible for ensuring that The Ordering.app Data (including information on Users), Merchant Content, and activity that are in Your account are secure and confidential; and (iii) must use commercially reasonable efforts to prevent unauthorized access to Your account, and must notify The Ordering.app promptly of any unauthorized access.
- You may not (i) sell, resell, rent or lease the The Ordering.app service or use it in a service provider capacity; (ii) use the service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the service; (iv) attempt to gain unauthorized access to the service or their related systems or networks; (v) reverse engineer the service; or (vi) access the service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
4. PAYMENT. Merchant will be charged a fee for services provided by The Ordering.app, as described at https://the.ordering.app/ or as otherwise provided to You by The Ordering.app. The Ordering.App will invoice Merchant, and Merchant will pay all fees as specified on the invoice no later than 28 days after receipt of an invoice. Merchant is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.
5. Representations and Warranties.
- By Merchant. You represent and warrant that You (i) have and will comply with all applicable laws (including privacy and data protection laws), and (ii) have and will retain all necessary rights to grant the licenses in this agreement and deliver the Merchant Content to The Ordering.app.
- By The Ordering.app. The Ordering.app represents and warrants to Merchant that the functionality or features of the The Ordering.app service will not materially decrease during any paid term.
- You acknowledge that once data is transmitted or transferred to Your systems (including a point of sale system), The Ordering.app has no control or liability associated with the data. The Ordering.app disclaims any liability if a third party accesses any of The Ordering.app provided hardware that resides at Your location.
- The parties’ only representations and warranties under this Agreement are expressly stated in this Section 5 (Representations and Warranties). The parties disclaim all other representations and warranties (express or implied), including any warranties of merchantability and fitness for a particular purpose.
6. Indemnity. If any third-party brings a claim against The Ordering.app related to Merchant's acts, omissions, or Merchant Content, Merchant must defend, indemnify and hold The Ordering.app harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
7. Limitation of Liability.
- Liability. In this Section 7, “Liability” means any liability, whether under contract, tort or otherwise, including for negligence.
- Neither party will have any liability arising out of or relating to this Agreement for (A) the other party’s lost revenues; (B) exemplary or punitive damages; or (C) any special, indirect, incidental or consequential losses (whether or not foreseeable or contemplated by the parties at the Effective Date).
- The Ordering.app’s total, aggregate liability arising out of or relating to this Agreement is limited to the amount paid by You during the 6-month period prior to the event that gave rise to the liability.
8. Confidentiality; Publicity.
- Confidentiality. The recipient will not disclose the other party’s Confidential Information, except to employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the other party’s Confidential Information only to exercise rights and fulfil obligations under this Agreement while using reasonable care to protect the Confidential Information. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the other party, if permitted by law.
- Publicity. Neither party may make any public statement regarding this Agreement without the other’s prior written approval.
9. Term; Termination.
- Term. This agreement will continue in effect until terminated.
- Termination for Convenience. Merchant may terminate the Agreement upon 30 days’ prior written notice to The Ordering.app at any time after all orders have been completed.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return The Ordering.app Property Upon Termination. Upon termination of this agreement for any reason, Merchant must pay The Ordering.app for any unpaid amounts, return all property of The Ordering.app, and pay for unreturned equipment. Upon The Ordering.app’s request, Merchant will confirm in writing its compliance with this return requirement.
- Suspension for Violations of Law. The Ordering.app may temporarily suspend the service or remove the applicable Merchant Content, or both, if it in good faith believes that, as part of using the Service, Merchant has violated a law. The Ordering.app will attempt to contact Merchant in advance.
- Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive.
- Affiliates, Consultants, and Contractors. The Ordering.app may use its affiliates, consultants, and contractors in connection with the performance of its obligations and exercise of its rights under this Agreement, but those parties will be subject to the same obligations as The Ordering.app.
- Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under this Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
- Subcontractors. Either party may subcontract any of its obligations under this Agreement, but will remain liable for all subcontracted obligations and its subcontractors’ acts or omissions.
- Force Majeure. Neither party will be liable for failure or delay to perform to the extent caused by circumstances beyond its reasonable control.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
- Feedback. By submitting ideas, suggestions or feedback to The Ordering.app regarding the Service, Merchant agrees that the information submitted does not contain confidential or proprietary information. The Ordering.app may use any ideas, suggestions or feedback You provide without any obligation to You.
- Notices; Entire Agreement; Governing Law. All legal notices must be in English, in writing and addressed to the other party’s primary contact. This Agreement states all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN SANTA CLARA COUNTY, CALIFORNIA, USA.