"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Data" means the data that is acquired by Us and Non-DinerlQ Applications in connection with Our Services.
"Malicious Code" means "viruses," "worms," "time bombs," "lock-ups," "trap doors," SQL Injections, Cross-site scripting, Trojan horses or other similar, harmful or malicious programming code, devices, data, files, scripts, agents or programs.
"Non-DinerIQ Applications" means online applications and offline software products that are provided by entities or individuals other than Us and that interoperate with the Services.
"Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You purchase under an Order Form, as distinguished from those provided pursuant to a pilot.
"Services" means (i) the PayMyTab and DinerIQ Application software included as part of the Services including, without limitation the PayMyTab mobile (iOS and Android) Guest App where guests can review, split, tip and pay their tabs directly from their smartphone, (ii) the tableside server EMV app, where servers can accept and process compatible EMV chip cards to pay open tabs and (iii) the DinerIQ dashboard where authorized users can update settings, process refunds and update settings and marketing information.
"Software" means the PayMyTab and DinerIQ Application software included as part of the Services including, without limitation.
"User Guide" means the online user guide for the Services, accessible via login at https://help.paymytab.com, as updated from time to time.
"Users" means Your employees, consultants, contractors and agents, who are authorized by You and Us to use the Services.
"We," "Us" or "Our" means DinerlQ Inc. as described in Section 15 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which You are accepting this Agreement.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
THIS MASTER SERVICE AGREEMENT (THIS "AGREEMENT") GOVERNS YOUR USE OF OUR SERVICES.
IF YOU REGISTER FOR A PILOT FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT PILOT. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE FOLLOWING TERMS AND CONDITIONS, YOU MUST NOT INDICATE ACCEPTANCE OF THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES. IF YOU A PILOT OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT PILOT.
You may not access Our Services if You are Our direct competitor, except with Our prior written consent. In addition, You understand and agree that You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking for competitive purposes.
This Agreement was last updated on May 22, 2018. It is effective between You and Us as of the date You execute this Agreement.
If You are given pilot access to Our Services, We will make one or more Services available to You on a trial basis until the earlier of (a) the end of the trial period or (b) the start date of any Purchased Services ordered by You.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR PILOT WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE PILOT OR PURCHASE UPGRADED SERVICES. AFTER THE EXPIRATION OF THE PILOT YOU MUST HAVE AN ACTIVE ACCOUNT TO ACCESS ANY DATA ENTERED.
NOTWITHSTANDING SECTION 10 (WARRANTIES AND DISCLAIMERS), DURING THE PILOT, THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms which shall specify the Prepaid Package Amount or Subscription Term, the Minimum Monthly Usage agreed upon, and the respective Pricing Tier. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
User Subscriptions. Unless otherwise specified in the applicable Order Form, Our Services are purchased by locations, devices and/ or transactions and may be accessed by an unlimited number of Users during the subscription term.
User Logins and Passwords. User logins and passwords are for designated Users who are the employees, contractors or other allowable designees of You and cannot be shared or used by more than one User You are responsible for the security of Your passwords and for any use of Your account. If You become aware of any unauthorized use of Your passwords or of Your account, You agree to notify Us immediately.
USE OF THE SERVICES
Our Responsibilities. We shall: (i) provide support for the Purchased Services to You at no additional charge. We shall provide Our support for the Purchased Services via telephone, email or online chat, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least three (3) days' notice via email and which We shall schedule to the extent practicable during the weekday hours from 4:00 a.m. to 8:00 a.m. Eastern Time, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, (iii) promptly provide to You all updates, releases and enhancements to the Software that We make available to other customers for the services You subscribe to (including all documentation provided by Us related thereto) and (iv) provide the Purchased Services only in accordance with applicable laws and government regulations.
Our Use of Your Data. You hereby grant Us a non-exclusive, worldwide license to use, modify and reproduce the Data You provide to Us for the purposes of: (i) providing the Services, (ii) preventing and addressing service or technical problems with the Services, (iii) providing You with customer support and (iv) enhancing the Services. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Data provided to Us. Our use of Your Data extends only to those uses specifically authorized herein. We agree that Your Data shall at all times remain Your property. We shall require all persons to whom any of Your Data is disclosed, including Our employees, to comply with the same obligations of nondisclosure and related restrictions herein.
Your Responsibilities. You agree to provide accurate, truthful, and complete registration information when You register to use Our Services. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not, and shall not authorize any third party to (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or any of the servers or networks that are connected to the Services, or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. You may not access or use the Services if You are one of Our competitors, except with Our prior written consent. We may reference You as a user of the Services and use Your name and logo in Our marketing materials as is applicable.
Usage Limitations. Services may be subject to other limitations as specified on Our Order form or User Guide.
Modifications and Service Limitations. Our Services may change as We refine Our algorithms, user interfaces, and add new functions to address the needs of Our users. Subject to our obligations under this Agreement, We shall not be liable to You for any damages related to any changes or modifications We make to the Services. In the event of significant, adverse impact as the result of any changes made by Us - You are required to notify Us in writing of the nature and condition of the adverse impact and We will have 30 days to remedy or cure any concerns or issues. In the event there is mutual agreement that there is not a remedy then this Agreement is cancelable by either party via formal written notice.
Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in the Data and the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or as noted on Our Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof, (v) attempt to disable or circumvent any security mechanisms used by the Services, or (vi) access the Services in order to build a competitive product or service, or copy any features, functions or user interfaces of the Services.
Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
Acquisition of Non-DinerIQ Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-DinerIQ Applications and implementation, customization and other consulting services. Any acquisition by You of such non-DinerIQ products or services, and any exchange of data between You and any non-DinerIQ provider, is solely between You and the applicable non-DinerIQ provider. We do not warrant or support non-DinerIQ products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified on Order Form. Subject to Section 6.3 (Integration with Non-DinerIQ Services), no purchase of non-DinerIQ products or services is required to use the Services except a supported POS, POS 3rd Party Interface, computing device, operating system, web browser and Internet connection.
Non-DinerIQ Applications and Your Data. If You install or enable Non-DinerIQ Applications for use with Our Services, You acknowledge that We may allow providers of those Non-DinerIQ Applications to access Your Data as required for the interoperation of such Non-DinerIQ Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-DinerIQ Application providers.
Integration with Other Non-DinerIQ Services. The Services may contain features designed to interoperate with other Non-DinerIQ Applications. To use such features, You may be required to obtain access to such Non-DinerIQ Applications from their providers. If the provider of any such Non-DinerIQ Application ceases to make the Non-DinerIQ Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
Effect of Company Bankruptcy. All rights and licenses granted by Us under this Agreement shall be deemed to be rights and licenses to "intellectual property," and the subject matter of this agreement, including all Company Content or Certified Build and related documentation, is and shall be deemed to be "embodiment[s]" of "intellectual property", for purposes of and as such terms are used in and interpreted under section 365(n) of the United States Bankruptcy Code (the "Code") (11 U.S.C. § 365 (n)). You shall have the right to exercise all rights and elections under the Code and all other applicable bankruptcy, insolvency and similar laws with respect to this Agreement, and the subject matter hereof and thereof.
FEES AND PAYMENT FOR PURCHASED SERVICES
Fees. You hereby agree to pay all fees specified on all Order Forms hereunder. If You elect in the Order Form to prepay for a specific number of transactions, then You will pay the fees specified in such Order Form for such transactions upon submitting the Order Form to Us. Unless otherwise stated in the Order Form, any unused transactions will expire at the end of a period of twelve (12) months from the purchase date, and cannot be refunded. If You elect to opt-in for an auto-renew prepaid plan, Your prepay package will be replenished, based on a pre-defined threshold, and an invoice will be sent for payment.
Invoicing and Payment. To facilitate payment for Our Services, You will indicate preferred method of payment which includes wire transfer or ACH along with supporting details as designated on the Order Form. You authorize Us to process payment for all Services listed in the Order Form for the Prepaid or Subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated on the Order Form. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated on the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 8.2 (Invoicing and Payment).
Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 60 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days' prior notice that Your account is overdue, in accordance with Section 15 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction), before suspending services to You.
Payment Disputes. We shall not exercise Our rights under Section 8.3 (Overdue Charges) or 8.5 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Taxes. Unless otherwise stated, Our quoted prices do not include any shipping, taxes, levies, duties or similar assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable based on Our income, property and employees.
Definition of Confidential Information. As used herein, Confidential Information"means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services and the Data contained therein; the Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
WARRANTIES AND DISCLAIMERS
Each party represents and warrants to the other that: (i) it is a corporation or limited liability company duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization; (ii) it has all requisite corporate power and authority to enter into and perform its obligations under this Agreement; and (iii) the signing and performance of this Agreement by such party will not violate the terms and conditions of any other agreement or understanding that such party currently has with any other third party.
We represent and warrant that: (i) the Software will not contain any Malicious Code that may damage, interfere with, intercept, lock out, destroy or expropriate any hardware, system, program, content, data, information, material, network, personal information or function whatsoever; (ii) during the term of this Agreement, the Software will be free and clear of all liens, restrictions, security interests and other encumbrances that might adversely affect or impact Your use of the Software; and (iii) the Software, or use thereof, does not infringe, misappropriate, violate or interfere with any intellectual property of any third party.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AVAILABILITY, SECURITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS", AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR DATA ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, COMPLETE, OR OTHERWISE ACCURATE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF THE FOREGOING, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA.
Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Beta Services"). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.
ADDITIONAL COVENANTS AND AGREEMENTS
Capacity. We agree that we shall maintain our capability to meet Your requests for the provision of the Services as requested by You hereunder. We shall, at all times, retain technical expertise and know-how to provide the Services in accordance with this Agreement and the applicable Order Form(s).
Insurance. During the term of this Agreement and until the second (2nd) anniversary of the date of termination of this Agreement, We agree to procure and maintain in full force and effect, valid insurance policies in connection with Our activities as contemplated hereunder. Upon Your request, We shall provide to You a certificate of coverage or other written evidence reasonably satisfactory to You of such insurance coverage.
Regulatory Compliance. Each party agrees to comply with all applicable laws, rules and regulations in performing its obligations and exercising its rights under this Agreement, including, without limitation, complying with the Foreign Corrupt Practices Act and any applicable export laws. Without limiting the foregoing, each party agrees to comply with any applicable export laws and regulations of the U.S. and any other country where the Software is to be delivered and/or installed. We agree to provide reasonable assistance to You to understand and comply with any such laws.
Transferable Warranties. We agree that We will pass through to You any transferable warranties, indemnities, and remedies provided to Us by third party financial institutions, product suppliers, including any warranties and indemnities for intellectual property infringement.
INDEMNIFICATION Indemnification. Each party shall indemnify, defend and hold the other party, its parent company, subsidiaries, Affiliates, officers and employees harmless from and against any and all claims, actions, suits, demands, assessments or judgments asserted and any and all losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees to the extent permitted by law, accounting fees and investigation costs) that may be sustained, suffered or incurred, whether or not arising from the assertion of a claim of a third party, arising directly or indirectly out of or relating to (i) any breach of any representation, warranty, covenant or obligation under this Agreement or the Order Form(s), (ii) acts or omissions of such party or any of its employees or agents in the exercise of such party's rights or the performance or observance of its obligations under this Agreement or (iii) such party's negligence or willful misconduct.
LIMITATION OF LIABILITY Limitation of Liability. IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT, OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT SUCH PARTY HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING SHALL NOT LIMIT ANY PARTY'S OBLIGATIONS UNDER SECTION Error! Reference source not found. HEREIN.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You accept it and continues for a period of thirty-six (36) months; provided, that, so long as You are not in breach in any material respect of Your obligations under this Agreement, You will have the right, but not the obligation to elect to extend the term for an additional twelve (12) months by delivering written notice to Us of such election to extend the term prior to the end of such thirty-six (36) month period. If You elect to use the Services for a pilot period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the pilot period.
Termination. This Agreement may be terminated as follows: (i) by either party upon 60 days written notice to the other party of a breach of any material obligations hereunder if such breach remains uncured at the expiration of such period (which cure period shall not apply if the breach is not capable of being cured), (ii) by either party if the other party becomes the subject of a petition in bankruptcy or other similar law or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, the filing by or against such other party of a proceeding for dissolution or liquidation the appointment of a receiver, trustee or custodian for all or part of such other party's assets, the attempt by such other party to make any adjustment, settlement or extension of such party's debts with such party's creditors generally, the insolvency of such other party or the filing or recording of a notice of lien or the issuance or the obtaining of a levy of execution upon or against a material portion of such other party's assets, (iii) by Us if We are required to do so by law; (iv) by You if We cease to offer or refuse to provide any material portion of the Services covered by this Agreement; or (v) for any other reason with or without prior written notice to You if You breach this Agreement with respect to the provisions of Section 5 in any material respect. Upon any termination of this Agreement, subject to any transition period as contemplated herein, You shall stop all use of the Services and return or purchase any hardware (tablets, readers, chargers, etc) provided by Us.
Effect of Termination. Upon any termination of this Agreement for any reason, You shall have a reasonable transition period of up to three (3) months to transition off use of the Software to an alternative solution. Upon Your request, We shall reasonably cooperate with You and your service providers to: (i) extract Your content and data out of the Software; and (ii) reasonably transition to an alternative solution, it being understood that You shall continue to pay the applicable fees provided herein during the period of such transaction services.
Refund or Payment upon Termination. Upon any termination of this Agreement for any reason, the parties will be obligated to each other for any payment or other obligations arising or occurring under this Agreement through the applicable date of termination.
WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled. If You are domiciled in:
The United States of America, Mexico, Canada, or a Country in Central or South America other than Brazil, the Caribbean, European Union or a Country in Europe, the Middle East or Africa, You are contracting with: DinerIQ Inc., a Delaware, USA corporation.
Notices should be addressed to:
333 Las Olas Way, Suite CU-04
Fort Lauderdale, FL 33301
The laws governing Our Master Service Agreement and other Agreements pursuant to the business relationship between You and Us are: The State of Florida and controlling United States Federal Law
The courts having exclusive jurisdiction are: Broward County, Florida, USA
Export Compliance. The Services, Data and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You may not use, export, import, or transfer the Services or Data except as authorized by U.S. law and any other applicable laws.
Anti-Corruption. You represent and warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Any waiver must be specific, in writing, and executed by the waiving party, and will not be continuing unless it so states explicitly.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
Attorney Fees. In the event of a dispute between the parties regarding the interpretation or enforcement of this Agreement which results in litigation, the prevailing party shall have its reasonable attorney fees and other costs incurred paid by the losing party.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Entire Agreement. This Agreement and Our Order Form constitute the entire agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and representations, written or oral, concerning such subject matter. No modification or amendment of this Agreement by You shall be effective unless in a writing that is signed by an authorized representative of each party. If there is any conflict or inconsistency between the provisions in the body of this Agreement, any Quotation or any Order Form, the terms of this Agreement will control unless otherwise expressly stated in the Order Form.
Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Force Majeure. We shall not be liable for any delay or failure to perform resulting from causes outside Our reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, materials or internet connectivity.
Section Headings. Section headings are for convenience only, and shall not be used to interpret this Agreement.