menuchain, Inc. (“us”, “our”, “we”) offers an application which allows merchants (“you”, “merchants”) to provide online ordering directly to consumers through a point-of-sale (POS), a tablet, an integration with a merchant’s POS system, an internet portal and smartphone applications (“Services”), and provides merchants with programs and applications to track consumers’ use thereof (“Application”, “Applications”). This application uses email and SMS to communicate program earnings and offers to consumers. These Merchant Terms and Conditions (“Terms”) govern your access and use of the Services and the Applications. “Merchant” means any merchant entity and its agents that makes use of the Application or provides Services to its customers.Please read these Terms carefully. These Terms govern your use of the Applications and your provision of the Services to your customers (“customers”, “consumers”). You must accept these Terms prior to signing up your business on menuchain using our website (e.g. www.menuchain.com) a third-party web site who is affiliated with us or using menuchain tablet applications for businesses or providing any Services to your customers. By clicking “ACCEPT” or in any other way downloading the Applications, sending SMS messages to your customers or making any Services available to your customers, you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not accept these Terms, do not click “ACCEPT” and do not download the Applications, do not use the Application or make any Services available to your customers. If, at any future point in time, no longer you agree to with the Terms, you must stop using our Services. menuchain will make reasonable commercial efforts to notify you of any updates to these Terms. Notwithstanding the foregoing, your continued use of the Applications or provision of the Services to your customers will be deemed acceptance to amended or updated Terms. As such, you should check frequently to see if we have updated these Terms. The most current version of the Terms is available on our website, www.menuchain.com. If you do not agree to any of these Terms, please do not use the Applications or make the Services available to your customers.
1 Definitions. In these Terms, the following terms when capitalized have the meanings set forth in this Section.a. “You” or “Merchant” means an end user that has been granted a license by menuchain to use the Services, and who has accepted the menuchain End User Terms and Conditions.b. “menuchain End User Terms and Conditions” means menuchain’s standard end user license agreement, which may be amended by menuchain in its sole discretion, a current version of which is available on our website, www.menuchain.com.c. “Promotional Content” means any advertising, promotional or marketing content provided by Merchant for provision to any Customer (including, without limitation, any loyalty plans or rewards) and including any logos, trade names, trademarks or other content of Merchant included in such content.
3 Restrictions.
Merchant shall maintain all copyright and other proprietary notices contained in the Applications and in the Services. Except as set forth expressly herein, Merchant shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Application or the Services; (b) modify the Application or Services, or insert any code or product, or in any other way manipulate the Application or Services; or (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Applications or Services except as expressly permitted by these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Merchant shall inform menuchain in writing in each instance prior to engaging in the activities set forth above. menuchain reserves the right to make modifications to the Applications and the Services at any time without prior notice.
4 Promotional Content.
Merchant may provide Promotional Content to Customers through the Services as permitted by menuchain. Merchant shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Promotional Content. Merchant shall remain at all times solely responsible for maintaining necessary and sufficient WIFI service at the location where menuchain is deployed. Merchant represents and warrants that no Promotional Content infringes the intellectual property rights or moral rights or any third party and adheres to Merchant’s Warranties regarding Promotional Content, as defined herein. menuchain reserves the right, at its sole discretion, to remove any Promotional Content that violates these Terms at any time, without prior notice, or require Merchant to do so. Merchant shall remain solely liable for any loyalty plans or rewards offered to Customers, and shall fully indemnify menuchain for its failure to satisfy any of its obligations pursuant to such plans or rewards. menuchain does not claim ownership of Promotional Content. However, Merchant grants menuchain a non-exclusive, royalty-free, worldwide license of all rights to use, edit, modify, include, incorporate, adapt, record and reproduce Promotional Content for the purposes of these Terms, including the right to exercise this license through independent contractors.
5 Intellectual Property.
a. menuchain Property. Title to and ownership of and all proprietary rights in or related to (a) the Application, Services and related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing; (b) all trade names, trademarks, and logos of menuchain; and (c) all data collected by menuchain’ server-side software with regard to the foregoing (collectively, “menuchain Property”) shall at all times remain solely with menuchain or its licensors. b. Merchant Property. Subject to Section 6.1, title to and ownership of and all proprietary rights in or related to Promotional Content and all the trade names, trademarks, and logos of Merchant shall at all times remain with Merchant and its licensors (collectively, “Merchant Property”). c. No Sale. Any references in these Terms to sale, resale or purchase of the menuchain Property or Merchant Property and related documentation or references of like effect, will be deemed to mean the license thereof pursuant to the terms and conditions of these Terms.
6 Customer Data.
menuchain will provide Merchant with certain specified data regarding Customers, including the Customer’s name, phone number, email, and dates of visits, offers usage, web links and certain other data regarding the Customer’s activities at Merchant’s business location (“Customer Data”). The ownership of these data shall remain with menuchain, although menuchain will provide the Merchant, upon Merchant’s request a copy of these data, as available at the time of the request. menuchain may, at menuchain’s discretion, analyze, aggregate, process and disseminate these data in aggregated form without identifying the Merchant or its Customers, with or without collecting fees for the above. Merchant agrees that it shall at all times comply with menuchain’s privacy policy and all applicable law, rules and regulations with respect to all Customer Data and all uses thereof. Merchant shall fully indemnify menuchain (and its officers, directors, employees andconsultants) for all breaches of its obligations under this provision. Except as agreed by menuchain and you in writing, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data. You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
7 Support.
You may contact menuchain with regard to the support for the Application using email at or using other forms of communication as described on our website.
8 Confidentiality.
Merchant acknowledges that menuchain may disclose to Merchant certain confidential information belonging to and relating to menuchain, the Application or the Services. Merchant may disclose to menuchain certain information regarding its business and operations. Either party (the “Receiving Party”) receiving information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should clearly be considered confidential proprietary (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, provided that the Receiving Party provides prompt notice of such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Merchant will not disclose any information regarding the results of any testing or evaluation of the Application or Services to any third party without menuchain’ prior written consent.
9 Warranties; Indemnification; Disclaimer.
a. MERCHANT WARRANTIES. MERCHANT REPRESENTS AND WARRANTS THAT THE PROMOTIONAL CONTENT: (I) DOES NOT CONTAIN MATERIAL THAT IS OBSCENE, DEFAMATORY, LIBELOUS, RACIALLY OR ETHNICALLY INSENSITIVE, HARASSING, THREATENING, ENCOURAGING VIOLENCE OR OTHERWISE OFFENSIVE; (II) DOES NOT CONTAIN PROFANITY OR REASONABLE FACSIMILE, PORNOGRAPHY, OR MATERIAL THAT MAY BE HARMFUL TO A MINOR; (III) DOES NOT CONTAIN MATERIAL THAT VIOLATES OR INFRINGES THE INTELLECTUAL PROPERTY, MORAL OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; (IV) DOES NOT CONTAIN ANY VIRUS, WORM, TROJAN HORSE, OR OTHER HARMFUL OR DISRUPTIVE COMPONENT; (V) COMPLIES WITH ALL APPLICABLE LAW, REGULATIONS AND RULES, INCLUDING ALL APPLICABLE LAW REGARDING ADVERTISING, MARKETING AND PROMOTIONAL CONTENT AND SERVICES; AND (VI) IS NOT BEING SENT TO MINORS.
b. MERCHANT INDEMNIFICATION. MERCHANT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS menuchain, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS FROM AND AGAINST ANY AND ALL SUITS, PROCEEDINGS, ASSERTIONS, DAMAGES, COSTS, LIABILITIES OR EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ LEGAL FEES) WHICH menuchain MAY SUFFER OR INCUR IN CONNECTION WITH ANY ACTUAL CLAIM, DEMAND, ACTION OR OTHER PROCEEDING BY ANY THIRD PARTY ARISING FROM OR RELATING TO (I) A CLAIM THAT THE PROMOTIONAL CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, PROVIDED HOWEVER, THAT MERCHANT SHALL HAVE NO OBLIGATION TO INDEMNIFY menuchain WHERE SUCH CLAIM OF INFRINGEMENT RELATES SOLELY TO THE menuchain PROPERTY INCORPORATED IN THE FOREGOING; (II) USE OF ANY CUSTOMER DATA NOT IN COMPLIANCE WITH menuchain’S THEN-CURRENT PRIVACY POLICY OR IN VIOLATION OF APPLICABLE LAW, RULE OR REGULATION; OR (III) ANY OTHER BREACH OF THESE TERMS, INCLUDING THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 11.
c. DISCLAIMER. THE APPLICATION, SERVICES AND RELATED DOCUMENTATION ARE PROVIDED “AS-IS”. menuchain EXPRESSLY DISCLAIMS ANY WARRANTIES (INCLUDING WITH REGARD TO THE PERFORMANCE OF THE APPLICATION OR SERVICES AND WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ANY RELIANCE ON THE APPLICATION OR THE SERVICES IS AT MERCHANT’S OWN RISK, AND menuchain DOES NOT AND SHALL NOT ACCEPT ANY LIABILITY FOR THE APPLICATION OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN LOYALTY PLANS OR REWARDS CREATED OR MADE AVAILABLE THROUGH THE APPLICATION OR SERVICES.
10 Customer Opt-Outs and Indemnification
CUSTOMERS CAN OPT-OUT FROM RECEIVING SMS MESSAGES BY REPLYING “STOP” OR “STOP”, WITHOUT ANY ADDITIONAL CHARACTERS OR WHITE SPACE, TO ANY MESSAGE RECEIVED FROM THE APPLICATION. THIS IS THE ONLY METHOD TO OPT-OUT. MERCHANT SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS menuchain FROM AND AGAINST ANY AND ALL SUITS, PROCEEDINGS, ASSERTIONS, DAMAGES, COSTS, LIABILITIES OR EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ LEGAL FEES) WHICH menuchain MAY SUFFER OR INCUR IN CONNECTION WITH ANY ACTUAL CLAIM, DEMAND, ACTION OR OTHER PROCEEDING BY ANY THIRD PARTY ARISING FROM OR RELATING TO ANY CLAIM THAT PROMOTIONAL CONTENT IS DELIVERED TO ANY PERSON OR PERSONS WHO DO NOT WISH TO RECEIVE SUCH CONTENT.
11 Exclusion of Damages; Limitations of Liability.
EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 9 (WARRANTIES; INDEMNIFICATION; DISCLAIMER), 10 (CUSTOMER OPT-OUTS AND INDEMNIFICATION) OR 11 (EXCLUSION OF DAMAGES; LIMITATIONS OF LIABILITY.), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL menuchain, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS BE LIABLE TO YOU, ANY CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 11, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL menuchain, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
12 Promotion; Publicity.
All promotional advertising and distribution of the Application and Services shall be consistent with menuchain’s standard policies and reputation. Both parties may agree in writing to include a reference to the other party and its logo on its website, marketing and promotional materials (in any medium) subject to the compliance by each party with the applicable trademark guidelines of the other party. The Parties may agree to issue a joint press release in a form mutually agreeable to the Parties announcing the formation of the relationship between the Parties. The text of such press release and announcements, and any future announcement or publication concerning the existence or terms of this agreement, shall be mutually agreed to by the Parties prior to publication, except that either Party may re-publish information contained in a previously approved press release, including on a Party’s website and in marketing materials.
13 Term.
The term of this agreement (“Term”) shall be as specified in the agreement and will commence on the date the Merchant executes the agreement and accepts these Terms a. Effect of Termination. Upon expiration or termination of these Terms for any reason, (i) Merchant shall immediately cease the use of the rights licensed hereunder, and shall immediately cease all provision of the Services to its customers; (ii) Merchant shall make payment to menuchain of all amounts due hereunder as of the date of termination; and (iii) Merchant shall cease the use of all menuchain Application and Property and shall promptly return to menuchain all equipment and also promptly return all copies of menuchain Confidential Information or destroy same, at menuchain’ discretion. b. Survival. Sections 2 (License), 5 (Intellectual Property), 6 (Customer Data), 8 (Confidentiality), 9 (Warranties; Indemnification; Disclaimer), 10 (Customer Opt-outs and Indemnification), 11 (Limitation of Liability) any accrued and unpaid payments, and this Section 12 shall survive the termination or expiration of these Terms for any reason.
14 Merchant Agreement.
(“You” refers to a customer as defined in clause 1 of this document). In order to manage your loyalty program, you will be provided with: (a) Access to the online dashboard, from where you can track and modify the various features of your program and possibly (b) An optional Android device (handset or tablet) for each location. These devices will serve as your on-site check-in for your club members as they walk in. By accepting these terms, you agree to the following: (a) To run your loyalty program in a fair and non-abusive manner, (b) To keep the provided Android devices (handsets or tablets) safe and secure, (c) To maintain necessary and sufficient WIFI service at your location and (d) To permit menuchain to send you text messages at any mobile phone number that you provide. In the case of a lost or stolen Android device (if it was provided by menuchain), you will be charged a one-time additional fee of $129.95 for the Android device. You understand that while menuchain grants you access to its platform, the responsibility for managing your loyalty club and WIFI service lies with you. Pricing: You agree to the menuchain pricing plans as presented and agreed to by signing your Agreement/Contract and/or your Pricing Proposal.
15 Miscellaneous.
menuchain and Merchant are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other. Neither party nor any officer or employee thereof shall, in any event, have any right collectively or individually, to bind the other party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other party, except as authorized in writing by such other party in its sole discretion. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. menuchain may assign its rights or obligations pursuant to these Terms. Merchant agrees not to assign any rights under these Terms; any attempted assignment shall be null and void and shall result in the termination of these Terms. As a menuchain customer, you agree to receive both SMS and email communications related to your program. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. These Terms shall be governed by the laws of the State of Florida, and the competent courts in the city of Boca Raton shall have exclusive jurisdiction to hear any disputes arising hereunder.
16 Services.
Some of the Services offered on the Website require payment of fees (“Charged Services”). If you elect to sign up for Charged Services, you shall pay all applicable fees, as described on the Website in connection with such Charged Services selected by you. menuchain reserves the right to change its prices at any time. You authorize menuchain directly or through third parties, to make any inquiries it considers necessary to validate your account and financial information that you provided while signing up for such Services. Please note that according to internal agreements, menuchain is entitled to collect fees from Users on behalf of the Charged Services, to process any payments and/or refunds and/or take any billing actions as required in connection with the collection of the fees on behalf of the Charged Services. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay any such taxes that might be applicable to your use of the Services and payments made by you to menuchain. All fees related to using Charged Services are charged automatically using the payment method as determined in the Website. If menuchain does not receive a request by the user, through email for Charged Services termination you acknowledge and understand that menuchain will continue to charge you for the Charged Services as long as your account remains active regardless if the Charged Services are used or not. If, at any time, you contact your bank or credit card company and decline or otherwise reject the charge of any payable fees, this act will be considered a breach of your obligation hereunder and your use of the Charged Services will be automatically terminated. Your use of the Charged Services will not resume until you re-subscribe for any such Charged Services. Users purchasing Charged Services shall pay any and all prices and fees due for such Services. All prices and fees are non-refundable unless otherwise expressly noted, even if such Charged Services are suspended, terminated, or transferred prior to the end of the Services term. menuchain expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at the Website and effective immediately without need for further notice to any user. Any changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below. IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MOST SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION AUTOMATICALLY RENEWS THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE ORIGINAL SERVICE PERIOD. FOR EXAMPLE, IF YOUR ORIGINAL SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL BE FOR ONE YEAR. WHILE THE DETAILS OF THE AUTOMATIC RENEWAL OPTION VARY FROM SERVICE TO SERVICE, THE SERVICES THAT OFFER AN AUTOMATIC RENEWAL OPTION TREAT IT AS THE DEFAULT SETTING. THEREFORE, UNLESS YOU CANCEL YOUR SUBSCRIPTION menuchain WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL, AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH menuchain AT THE THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. YOU MAY CANCEL YOUR SUBSCRIPTION FROM SUCH SERVICES PRIOR TO THE AUTOMATIC RENEWAL AT ANY TIME. IN SUCH EVENT THE SERVICES SHALL BE DISCONTINUED UPON THE EXPIRATION OF THE RESPECTIVE PERIOD YOU HAVE PAID FOR AND YOU SHALL NOT HAVE ANY CLAIMS TOWARDS menuchain IN RELATION TO THE DISCONTINUATION OF THE SERVICES.