Master Terms and Conditions

Last Modified: April 9, 2020

 

Important Information About These Master Terms and Conditions.  These Master Terms and Conditions constitute a binding contract between CUSTOMER and CardFree, Inc., a Delaware corporation (“CARDFREE”) and are referred to herein as the “Terms and Conditions.”  CUSTOMER accepts these Terms and Conditions by making a purchase from, placing an order with, or otherwise requesting products from CARDFREE, or engaging CARDFREE to perform or procure any services.  These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on the CARDFREE website at the time of the Effective Date of the Order-Ahead or Other Services Order Form (the “Order Form” and together with the Terms and Conditions, the “Agreement”) or the Effective Date of a SOW, whichever is applicable, will govern the transaction in question.  Any capitalized terms used in these Terms and Conditions and not otherwise defined herein shall have the meanings herein as in the Order Form.

  1. LICENSE FOR THE USE OF THE ORDER-AHEAD AND OTHER SERVICES. CUSTOMER is granted a non-exclusive, non-transferable, non-assignable, restricted, and revocable license to incorporate “Order-Ahead” and other applicable services, which enables consumers to pay their checks via their mobile devices (the “Service”), into CUSTOMER’s POS System at the Location(s) during the Term to be used by CUSTOMER’s consumers, as more fully set forth herein.   
  1. OBLIGATIONS OF CUSTOMER.
    1. CUSTOMER agrees and acknowledges that it shall conduct its business in its own name and maintain its own, separate POS System to integrate the Service. 
    1. CUSTOMER agrees and acknowledges that it shall, in good faith and at its own expense: (i) observe all instructions provided by CARDFREE in regard to the Service; (ii) immediately notify CARDFREE in writing of any complaint or adverse claim regarding the Service.  
    1. CUSTOMER agrees and acknowledges that it shall disclose and include in its point of sale reports to its consumers that the Service is “Powered by CARDFREE®,” or similar CARDFREE trademarks, branding and other indicia of origin (the “CARDFREE Marks”), as mutually agreed upon by the parties.  In accordance with this disclosure requirement, CUSTOMER is hereby granted and shall have a nonexclusive, royalty-free, revocable, non-transferrable license to use the CARDFREE Marks (the “Limited License”) subject to the terms of the Agreement.  The Limited License shall terminate upon the termination of the Agreement. 

  

    1. CUSTOMER agrees and acknowledges that CARDFREE’s End User Terms of Service as set forth on Exhibit A (the “End User Terms”) shall apply to CUSTOMER under the Agreement subject to applicable law, and CUSTOMER shall be required to incorporate the End User Terms into the Service as provided by CardFree.  In the event of any conflict between the Agreement and the End User Terms, the provisions of the Agreement shall govern.
    1. CUSTOMER agrees and acknowledges that it shall provide CARDFREE with information for a case study to be conducted by CARDFREE regarding CARDFREE’S Service, including but not limited to CUSTOMER’S key metrics such usage of the Service, frequency, check and tip size (collectively, the “Case Study Metrics”). Any case study will present aggregate data and not specifics of any end user. 
    1. CUSTOMER shall be solely responsible for the payment of all of its sales, use, property, value-added, withholding or other federal, state or local taxes arising out of or related to this Agreement.  In the event CARDFREE is required to pay any such taxes in connection with the subject matter of this Agreement, such taxes shall be billed to CUSTOMER and CUSTOMER shall reimburse CARDFREE for such taxes within thirty (30) days of receipt of the invoice for such taxes.  CUSTOMER further acknowledges and agrees that CARDFREE shall not in any way be responsible for any withholding or tax information that is provided to CUSTOMER.
  1. OBLIGATIONS OF CARDFREE.  
    1. CARDFREE shall provide technical support services to CUSTOMER provided, that the parties acknowledge and agree that the Service may be unavailable at certain times, including during unanticipated or unscheduled downtime or unavailability or as a result of system failures or force majeure events; provided, further that following any such interruption, CARDFREE will use commercially reasonable efforts to provide information regarding any such interruptions and the restoration of, use of, and access to, the Service and technical support.  In no event shall CARDFREE be liable for any downtime, unavailability, or related damages.   
    1. THE SERVICE IS PROVIDED “AS IS” AND CARDFREE MAKES NO WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  CARDFREE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  CARDFREE DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.  
  1. PAYMENT.  CUSTOMER agrees to pay all fees and amounts set forth in the Order Form and any SOW.  CARDFREE shall invoice in advance for all recurring fees and in arrears with respect to transaction and non-recurring fees as described in the Order Form and any SOW. Payment is due net thirty (30) days of the date of the invoice. In the event an undisputed invoice is not properly paid when due, CARDFREE may, in its sole discretion and without prejudice to any other rights or remedies it may have, charge interest at a rate of ten percent (10%) per annum on the outstanding fees then due, or the highest legal rate allowed by applicable law from the date such fees became due.  CUSTOMER shall be liable for any costs reasonably incurred by CARDFREE in the collection of unpaid fees.  Recurring fees are subject to an annual escalator of five percent (5%), effective on the annual anniversary of the Effective Date of the Order Form and each year thereafter.  CARDFREE reserves the right to increase recurring support fees for custom integrations or modifications requested by the CUSTOMER that require ongoing or recurring support services provided by CARDFREE.  In addition to the fees and other amounts payable under any SOW, CUSTOMER shall reimburse CARDFREE for any and all pass-through-costs for the services provided, including a mark-up of ten percent (10%).  Such pass-through-costs shall include but not be limited to SMS, CDN, e-mail providers, etc.  In the event the services provided to CUSTOMER consumes a larger than normal portion of the CARDFREE platform resulting in additional pass-through-costs, CARDFREE, after providing notice to CUSTOMER of its larger than normal usage, may charge Customer additional fees for such consumption.
  1. OWNERSHIP.  The parties hereby agree and acknowledge that CARDFREE is the sole owner of Order-Ahead and the other Services, Intellectual Property Rights therein and the Feedback (as such terms are defined below) and CARDFREE retains all right, title and interest to the Service, Intellectual Property Rights and Feedback.  Intellectual Property Rights” means any and all tangible and intangible (a) rights associated with the works of authorship throughout the universe, including copyrights and moral rights, (b) trademark, service mark, trade dress, domain name and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms, mask works and other industrial property rights, (e) all other intellectual property rights (of every kind and nature whether now known or hereafter recognized, throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, including, but not limited to, rights of publicity, privacy, or reputation, and (f) all registrations, initial applications, renewals, extensions, conditions, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing), which are contained in the Service.  In the event the Service and the Intellectual Property Rights are determined by an arbitrator or court of law to not be the sole property of CARDFREE, but rather the property of CUSTOMER based upon the Agreement, CARDFREE is hereby granted by CUSTOMER a royalty-free, irrevocable, perpetual, worldwide license to use, make, modify, exploit and sell such Service in any manner or way whatsoever for the sole benefit of CARDFREE.  CUSTOMER shall not decompile, disassemble or otherwise reverse engineer the Service, or attempt to do so.  Feedback” means any comments, recommendations or suggestions (including, without limitation, suggestions for improvements, modifications and new features) regarding any of CARDFREE’s products or services including, without limitation, the Service, transmitted to CARDREE whether by mail, electronic transmission, telephone or other form of communication.
  1. CUSTOMER DATA.  CUSTOMER shall ensure that any and all privacy policies of CUSTOMER permit CARDFREE and its contractors, vendors, representatives, agents and service providers (the “CARDFREE Vendors”) to use any CUSTOMER data, including personally identifiable information provided by or on behalf of CUSTOMER or its consumers to CARDFREE, if any (the “CUSTOMER Data”) is necessary to perform duties in the Agreement.  CUSTOMER shall ensure that its data collection procedures and privacy policies are in compliance with applicable law and third-party contracts.  CUSTOMER hereby agrees that CARDFREE shall have the right to disclose CUSTOMER Data to CARDFREE’s directors, officers, employees, agents and CARDFREE Vendors that need to be in possession of the CUSTOMER Data in order to comply with the terms of the Agreement.  CUSTOMER further agrees that CARDFREE shall have the right to collect, use, store, process, access, transfer and disclose any CUSTOMER Data as reasonably necessary to perform the Agreement.  In addition, CARDFREE Vendors have the right to use CUSTOMER Data in a non-personally identifiable form in connection with operating and improving their respective products and services and to use CUSTOMER Data as otherwise expressly requested or agreed by CUSTOMER or the consumer to whom the CUSTOMER Data relates.  
  1. ADDITIONAL SERVICES.  CUSTOMER and CARDFREE may choose to amend the Agreement at any time to include other services in addition to the Service offered by CARDFREE under such terms (including payment terms) and conditions to be mutually agreed between the parties.  CARDFREE may require CUSTOMER to enter into a Statement of Work (a “SOW”) before performing any additional services.
  1. INDEMNIFICATION. 
    1. CUSTOMER shall indemnify, protect, defend and hold CARDFREE and its affiliates and their officers, directors, employees, successors, assigns and representatives (the “CARDFREE Parties”) harmless from any and all losses, damages, costs, liabilities, claims, judgments, settlements, payments, fines and expenses (whether or not arising out of third-party claims), including reasonable attorney’s fees any amounts paid in settlement of the foregoing (“Losses”) suffered or incurred by CARDFREE Parties with respect to any threatened or actual claim of any nature at any time asserted or brought in any way relating to the subject matter of the Agreement, including with respect to any claim arising from a breach, violation or non-compliance of any law which may be applicable to CARDFREE by virtue of the Agreement. 
    1. CARDFREE shall indemnify, protect, defend and hold CUSTOMER harmless from any and all Losses suffered or incurred by CUSTOMER as a result of a defect or malfunction inherent in the Service; provided that, CARDFREE shall in no event whatsoever be liable to indemnify CUSTOMER for (i) any services provided to third parties in a different, changed or upgraded form other than as originally provided by CARDFREE to CUSTOMER under the Agreement; (ii) any services that are used by or provided to third parties in combination, conjunction or in addition to services, functions or formats not included in the services originally provided by CARDFREE to CUSTOMER under the Agreement; (iii) any services provided to third parties; or (iv) any front-end user interface services which may be provided with respect to the Service, irrespective of whether the foregoing services are in the original form as provided by CARDFREE to CUSTOMER (if applicable).
    1. For the purposes of this Section 8, all payments due from an indemnifying party shall be calculated by deducting any insurance proceeds, tax benefits or other similar payments received or reasonably expected to be received by the indemnified party in connection with such Losses.  
  1. LIMITATION OF LIABILITY.  In no event shall CARDFREE’S AGGREGATE LIABILTY ARISING OUT OF thE AGREEMENT Exceed the AGGREGATE AMOUNT OF ALL FEES ACTUALLY PAID TO CARDFREE UNDER THE AGREEMENT.  In no event shall either party be liable to any other Person for any special, consequential, incidental or indirect damages, INCLUDING BUT NOT LIMITED TO LOST PROFITS, INTERFERENCE WITH ACTUAL OR PROSPECTIVE BUSINESS OPPORTUNITIES, LOST BUSINESS OPPORTUNITIES, OR PUNITIVE DAMAGES however caused, CLAIMED OR ASSERTED, on any theory of liability, and notwithstanding any failure of essential purpose of any limited remedy.
  1. TERMINATION.
    1. Either party may terminate the Agreement for convenience at any time and for any reason upon providing no less than thirty (30) days prior written notice to the non-terminating party.  
    1. With ten (10) days prior written notice, the Agreement may be terminated by either party upon any of the following: 
      1. The other party has breached the Agreement and failed to cure such breach within ten (10) days of written notice provided by the non-breaching party to the breaching party of such breach; or
      1. Bankruptcy, insolvency, assignment for benefit of creditors, appointment of a trustee or receiver over substantial assets, liquidation or other similar event of a party.
    1. Upon the termination of the Agreement by either party, all services provided by CARDFREE shall be terminated immediately.  CUSTOMER shall be responsible for notifying its consumers of such termination.  
    1. Upon the termination of the Agreement, CUSTOMER shall immediately (i) pay to CARDFREE all amounts due to the other party as of the termination date with supporting documentation and (ii) provide to CARDFREE the Case Study Metrics as of the termination date.  Each party shall immediately, (i) cease providing any and all services to the other party, (ii) at the other party’s election, return to the other party or destroy all Confidential Information and all other material received from such other party, (iii) discontinue use of the CARDFREE Marks by CUSTOMER; and (iv) provide the other party with a signed written statement certifying that it has complied with the foregoing obligations, if requested.  
    1. Upon termination or expiration of the Agreement, all provisions shall immediately cease to be in effect, provided, that Sections 5, 8, 9, 10, 11, 12, 14, and 18 of these Terms and Conditions and Section 1 of the Order Form shall continue to survive.
  1. DISPUTE RESOLUTION. In the event of a dispute between the parties under the Agreement, the parties agree, at the request of either party, to appoint executive officers to meet in good faith within forty-five (45) days of such request, with a mediator experienced in the relevant dispute in order to resolve the dispute.  The parties shall act in good faith to resolve any such dispute. The mediator’s costs and fees will be split equally by the parties.  In the event that the parties are unable to resolve the dispute pursuant to the mediation procedure described above within thirty (30) days of commencement of such mediation, the parties agree that the dispute shall be settled by mandatory, final and binding arbitration in Santa Clara County, California under the Rules of Arbitration of the American Arbitration Association (“AAA”) by a single arbitrator appointed in accordance with the AAA rules.  The arbitrator appointed by the AAA shall apply California substantive law to the claims brought before the arbitrator and shall apply the procedural rules for arbitration provided by the AAA.  CARDFREE and CUSTOMER shall each have the right to take written discovery and depositions as provided under the California Code of Civil Procedure, as well as to subpoena witnesses and documents for discovery and arbitration.  Any disputes with respect to such discovery, deposition or witness matters shall be decided by the arbitrator.  The arbitrator appointed by the AAA shall have the power to grant all legal and equitable remedies and shall have discretion to award monetary and other damages, but only to the extent consistent with applicable law.  The arbitrator appointed by the AAA shall prepare in writing and provide to the parties an award indicating factual findings and the reasons on which the decision is based.  CARDFREE and CUSTOMER agree that this arbitration procedure will be the exclusive means of redress for any disputes relating to or arising out of the Agreement.  The parties hereto expressly waive the right to a jury trial and agree that the arbitrator’s decision and award shall be final and binding on the parties.  The final decision or decisions made by the arbitrator with respect to the arbitration may be entered in any court having jurisdiction thereof.  The successful or prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in such proceeding(s), in addition to any other relief to which it may be entitled, from the other party.
  1. INJUCTIVE RELIEF.  Notwithstanding any provision to the contrary, each party to the Agreement acknowledges and agrees that the other party would be irreparably damaged in the event that any of the terms or provisions of the Agreement are not performed in accordance with their specific terms or otherwise are breached.  Therefore, each party agrees that the other party shall be entitled to an injunction or injunctions to prevent breaches of any provisions of the Agreement and to enforce specifically the performance by such first party under the Agreement, and each party hereby agrees to waive the defense in any such suit that the other party has an adequate remedy at law and to interpose no opposition, legal or otherwise, as to the propriety of injunction or specific performance as a remedy, and hereby agrees to waive any requirement to post any bond in connection with obtaining such relief.  The equitable remedies in this Section 12 shall be in addition to, and not in lieu of, any other remedies at law or in equity that the parties may elect to pursue. 
  1. INDEPENDENT CONTRACTORS.  The parties are independent contractors with respect to each other.  Each party is not and shall not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other party.  
  1. CONFIDENTIALITY.  The parties shall and shall cause each of their affiliates and representatives to, maintain the confidentiality of the Agreement.  Each of the parties acknowledges that by virtue of the Agreement that it may have, or will have, access to confidential and proprietary information disclosed either orally, in writing or by inspection, including without limitation formulas, raw materials, technical information, product information, application processes and techniques, and information about each party’s formulas, products, projects, finances, manufacturing processes, techniques, marketing plans, business plans and operations (collectively, the “Confidential Information”). Confidential Information shall include all such information received by either party both prior to and subsequent to the Effective Date.  Each party shall take every reasonable precaution to maintain the confidentiality of such information, which shall be no less than the precautions it takes to protect its own Confidential Information.  The parties agree: (a) to receive and retain all Confidential Information in confidence; (b) to limit its disclosure to such of its employees, officers, directors and representatives as it, in good faith, believes necessary to have access to such information in order to properly fulfill its obligations under the Agreement; (c) to require its employees, officers, directors and representatives to receive and retain in confidence all such Confidential Information disclosed to them; and (d) not to use or disclose to others, or permit the use or disclosure of, any such Confidential Information, except as may be required by law; provided that CARDFREE may share the Case Study Metrics.  Without limiting the generality of the foregoing, CARDFREE agrees to use its best efforts to preserve the confidentiality of the Confidential Information in connection with sharing Case Study Metrics.  The parties agree that neither party shall make any announcement concerning the execution or content of the Agreement or the relationship of the parties without the other party’s express written consent.  
  1. ASSIGNMENT.  Neither party may assign or delegate the Agreement or any SOW, or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other, and any such purported assignment or delegation shall be void.  Notwithstanding the foregoing, CARDFREE may assign the Agreement and any SOW in connection with the sale or other transfer of all or substantially all of such party’s business or assets to which the Agreement or any SOW relates.  Subject to the foregoing, the Agreement and SOW’s will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.  
  1. FORCE MAJEURE.  Except with respect to obligations to make payments hereunder, neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law.
  1. NOTICES.  All notices, requests, demands and other communications called for or contemplated hereunder shall be in writing and shall be deemed to have been duly given when: (a) personally delivered; (b) five (5) days after having been mailed by United States certified mail, postage prepaid, return receipt requested; (c) two (2) days following delivery by an overnight courier service properly addressed to the receiving party and confirmed as having been delivered by such overnight courier service; or (d) upon acknowledgment of receipt by the receiving party of facsimile transmission following correct dispatch or e-mail.  All such notices, requests, demands and other communications shall be addressed to the parties at the addresses set forth in the Order Form or SOW, whichever is applicable, unless otherwise changed pursuant to this Section 17.
  1. MISCELLANEOUS.  These Terms and Conditions, the Order Form and any SOW constitute the entire agreement between the parties concerning the subject matter hereof and thereof, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral.  To the extent that the terms set forth in these Terms and Conditions are inconsistent or in conflict with the terms set forth in the Order Form or a SOW, the terms set forth in the Order Form and the SOW, whichever is applicable, shall apply.  The Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of laws pertaining to conflict of laws. If any provision of the Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable.

EXHIBIT A – END USER TERMS OF SERVICE

CardFree End User Terms of Service

  1. General. Access to ____________________’s (the “Service Provider”) services via your mobile device is powered by the mobile technology and software solution owned by CARDFREE, Inc. (the “Licensor”) or its licensors. The Licensor is not the provider of any of the services available to you through the Software (defined below in Section 2) (collectively the “Third-Party Materials”).  You acknowledge and agree that the Licensor is not responsible for any of the Third-Party Materials, including their accuracy, completeness, timeliness, validity, compliance, legality, decency, quality, or any other aspects of information, products or services made available to you through the Software. Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.  In addition, the Licensor is not responsible for any errors, mistakes or defects affecting or otherwise relating to payments and/or the earning or redemption of points.
  1. Ownership. You acknowledge and agree that the Licensor (or its licensors) is the owner of all right, title and interest in and to the mobile technology solution and software made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the “Software”). By accessing the Software or using the services powered by the Software, you agree to be bound by these End User Terms (this “Agreement”), which (i) constitute your agreement with Licensor, and (ii) shall be deemed to override and supersede any conflicting or contradictory provisions set forth in any other agreement to which you are a party or otherwise binding on you.
  1. License. Subject to the terms and conditions of this Agreement, you are hereby granted a personal, nonexclusive, revocable, nontransferable license to use the Software (in machine readable object code form only) in accordance with this Agreement and solely for its intended purpose. This is not a sale of the Software. All rights not expressly granted to you by this Agreement are hereby reserved by the Licensor. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance or updates to the Software. This license may be terminated at any time, for any reason or no reason, by you or the Licensor. Upon termination, (i) all rights granted to you under this Agreement will also terminate, (ii) you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or otherwise in your possession or control, and (iii) termination will not limit any of the Licensor’s rights or remedies at law or in equity.
  1. Restrictions. You shall not: (i) use the Software in any manner other than for its intended purpose; (ii) use the Software in any illegal or inappropriate manner or for any illegal or inappropriate purpose; (iii) modify, revise or create any derivative works of the Software; (iv) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (v) redistribute, sell, rent, lease, sublicense, transfer rights to, or otherwise commercially exploit the Software; or (vi) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
  1. Updates. The terms of this Agreement will govern any updates that replace and/or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern. The Licensor shall not, by virtue of this Agreement, be required to provide or make available to you any updates, improvements or additional modules.  Notwithstanding the foregoing, Licensor may from time to time in its sole discretion develop and provide certain updates, which may include upgrades, bug fixes, patches, other error corrections and/or new features.  Such updates may also modify or delete in their entirety certain features and functionality of the Software.  You agree that Licensor has no obligation to provide any updates or to continue to provide or enable any particular features or functionality of the Software.
  1. Consent to Use of Data. You agree that the Licensor may collect and use technical data and related user information, including but not limited to technical and personal information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software. By downloading, installing, using and providing information to or through the Software, you hereby grant us a perpetual, non-exclusive, royalty free right and license to copy, modify and use any information and data supplied by you or collected on your behalf so that we may enhance the Software and to reasonably perform under its agreement with Service Provider.  The Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies.  The Licensor has implemented internal privacy protections for personally identifiable information, however, you acknowledge that any personally identifiable information transmitted or disclosed online can be intercepted by others and used unlawfully.  Licensor shall comply with all applicable laws and regulations; however, Licensor is not responsible to ensure that Service Provider also comply with all applicable laws and regulations.
  1. Text Messages. Text messaging services, emails or other similar pass through fee services (collectively referred to as the “Pass Through Services”), if any are offered, are provided by the Service Provider and not by Licensor.  You and the Service Provider are solely responsible for the content transmitted through text messages sent between you and the Service Provider. You must provide source indication in any text messages you send (e.g. mobile telephone number, “From” field in text message, etc.).  You are responsible for any fees charged by third parties with respect to any Pass Through Services.
  1. Purchase of Alcoholic Beverages.  By using Licensor’s mobile technology solution and software, you acknowledge and agree that (a) federal and state law require that the purchaser of alcoholic beverages be at least 21 years of age and alcoholic beverages may not be sold, delivered or given away to persons who are under 21 years of age, (b) you are 21 years of age or older and (c) you must be able to provide a valid form of identification to the Service Provider at the time of service.  You further acknowledge and agree that the Licensor is not affiliated with the Service Provider and the Service Provider has the discretion to refuse service to anyone.  Any issues in connection with your ability to purchase alcoholic beverages are solely between you and the Service Provider.  
  1. Export Restrictions. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will comply with all applicable United States laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to any exporting or re-exporting of the Software.
  1. U.S. Government Restricted Rights. The Software is commercial computer software, as such term is defined in 48 CFR §2.101.  Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 CFR §227.7201 through 48 CFR §227.7204, with respect to the Department of Defense and their contractors, or (b)  48 CFR §12.212, with respect to all other U.S. Government licensees and their contractors.
  1. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT OF USE OF THE SOFTWARE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERORMANCE, USAGE OR TRADE PRACTICE. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED.  NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL MEET YOUR SYSTEM REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OF THE SERVICES TO BE PROVIDED ON THE SOFTWARE WITHOUT INTERRUPTION.  YOU ACKNOWLEDGE THAT LICENSOR IS NOT RESPONSIBLE FOR ANY ERRORS RELATED TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION DOWNTIME, AND ANY SERVICES PROVIDED BY THE SERVICE PROVIDER.  LICENSOR IS NOT RESPONSIBLE FOR THE ACTIONS OF THE SERVICE PROVIDER, INCLUDING BUT NOT LIMITED TO ITS COMPLIANCE WITH ALL APPLICABLE LAWS.  YOUR USE OF THE SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
  1. Indemnification. You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney’s fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through the Software.
  1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS AFFILIATES OR LICENSORS (“LICENSOR PARTIES”) BE LIABLE FOR ANY LOSSES, DAMAGES, FEES AND COSTS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED.  FOR THE AVOIDANCE OF DOUBT, LICENSOR PARTIES SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, FEES AND COSTS IN CONNECTION WITH THE PURCHASE, SALE OR CONSUMPTION OF ANY ALCOHOL.  IN ANY CASE, THE LICENSOR PARTIES’ LIABILITY ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
  1. Miscellaneous. This Agreement constitutes the entire agreement between you and the Licensor concerning the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software. This Agreement will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this Agreement are subject to the exclusive jurisdiction and venue of the Superior Court of San Francisco County or the United States District Court for the Northern District of California, and you expressly consent to jurisdiction and venue thereof and therein. This Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.