This Online Service Agreement ("Agreement") is entered into between Real Time Ordering LLC ("Company") and _____________________________________ ("User). The parties agree as follows:
1. Acceptance.
By accepting this Agreement and using Company's Online Services ("Services"), User agrees to be bound by all the terms and conditions of this Agreement.
2. Provision of Services.
Company has been hired by User for the specific project of developing and creating an online ordering site for the User's restaurant and host User’s online ordering site at Company’s website.. In addition to developing the website, Company agrees to provide User with website hosting services to allow consumers to order food/beverage online from User’s restaurant. These website hosting services consist of website server space, e-mail capability, internet access to User’s site, domain name registration (if applicable), and such additional services as may be provided by Company from time to time. Company reserves the right to change or modify the features of User's service plan from time to time on 30 days written or e-mailed notice to User. User's continued use of Company's services after receipt of such a notice of modification shall constitute User's acceptance of and agreement to be bound by the Company's modification of the terms and conditions of this Agreement.
3. Agreement Term.
The initial term of this agreement shall commence on the date of execution of this Agreement and shall continue through the remainder of the calendar month in which this Agreement was executed (the "Initial Term"). After the initial term, this Agreement shall be automatically renewed for successive monthly periods until terminated by one of the parties as provided in this Agreement. If User chooses to pay Company quarterly, semi-annually, or annually, the renewal term shall continue for each quarter (three months), semi-annual (six-months), or annual period (twelve months) that he or she pays for Company's services.
4. Termination Without Cause.
(a) User may terminate this Agreement at any time, for any reason, by contacting Company in writing and requesting that User's account be canceled. In the event of a cancellation, Company will not refund amounts already billed for the current monthly or other term service period in which User terminates the Agreement. Any amounts paid in advance by User for future service terms following the current monthly or other term service term will be promptly refunded by Company.
(b) Company may terminate this Agreement at any time, for any reason, by providing written notice of termination to User's primary contact address no less than 30 days prior to the service termination.
5. Termination for Cause.
User agrees to abide by the terms of this Agreement and by Company's general use policies as set forth in this Agreement, as those policies may exist from time to time. Company may change its use policies on 30-day written notice to User by e-mail message, mail, or facsimile transmission. Any violation by User of the terms of this Agreement or of Company's general use policies shall be grounds for immediate termination of User's account for cause. If Company terminates User's account for a violation of this Agreement under this Paragraph, Company shall not be required to refund any amounts billed for the billing period in which Company terminates User's services.
6. Payment Terms.
Website Setup.
(a) Company shall provide to User the services described herein. Exhibit A includes the timelines for the website setup on that Company shall provide under this Agreement.
(b) As compensation for Company's services of website setup as specified in Exhibit A, User agrees to pay Company the amounts set out in Exhibit A. Payment plus any additional costs incurred shall be due and payable upon completion of the website setup.
(c) Additional costs incurred by Company shall be in addition to the amount specified in Exhibit A. "Additional costs" shall consist of any additional time spent on new elements or requirements introduced by the User in addition to those specified in Exhibit A, or resulting from requests for changes or modifications to the specifications in Exhibit A. Additional time shall be billed at $25.00 per hour, in half hour increments.
(d) All payments are due and payable net 30 days from the date of invoice.
(e) All dates specified above and on Exhibit A are dependent on the timeliness of delivery of materials and information by the User. In the event materials are not timely delivered, the specified setup dates are automatically extended by the number of dates in which the User's materials are late. In the event that Company becomes unable to setup the website on the completion date because of events outside of Company's control, or if the User, after execution of this Agreement, orders options or creates the necessity for overages, then Company shall give reasonable assurance of the new completion date. All payments are non-refundable except in the case of a breach of this Agreement by Company.
(f) Completion of Setup. The completion of the website setup by sending the final invoice indicates that all work has been completed under this Agreement in terms of website setup. Upon completion of the setup, User agrees that every aspect of the websites appearance and function has been approved by the User and that all work has been completed in terms of the website setup.
Website Hosting
(a) User agrees to pay Company the amount specified on Exhibit A for Company's hosting services. Company reserves the right to change or modify its charges for User's plan from time to time on 30 days notice written or e-mailed to User. User's continued use of Company's services after receipt of such a notice shall constitute User's acceptance of and agreement to be bound by the Company's modified charges for its services. Additional charges for add-on services not included in User's plan will be made as specified on Exhibit A.
(b) Service charges are payable in advance on a monthly, quarterly, semi-annual, or annual basis at User's option. Company will invoice User at the beginning of each payment period. Company will submit all invoices to User by e-mail, mail, or fax. Payment is due immediately upon receipt of invoice. Interest in the amount of 10 per month will be added to any outstanding invoices remaining unpaid for more than 30 days.
(c) User agrees to be billed for all recurring and one-time charges, including late charges, for any Services ordered by User and any fees owed to Company.
(d) Any charges for upgrading User's current hosting package, or performing add-on requests, will not be billed until the next invoice.
7. Taxes.
Company shall not be liable for any taxes and other govern mental fees related to purchases from the website that is setup and hosted for User by Company. User agrees that he or she will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to User by Company.
8. Materials and Products.
Any material and data User provides to company in connection with Services shall be in a form requiring no additional manipulation on the part of Company. Company shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Company, in its sole discretion, may reject material or data that User has placed on Company's servers or that User has requested that Company put on Company' servers. Company agrees to notify User immediately of its refusal of any material or data and provide User with an opportunity to amend or modify the material or data to meet the Company's requirements. User's failure to amend or modify the data or material as directed by Company within a reasonable time shall be a breach of this Agreement.
9. Violations of Network Security.
User is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of User's agreement. Company will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the User or logging into a server or account that the User is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, "flooding," "mail bombing," or "crashing".
(d) Forging any TCP/IF packet header or any part of the header information in any e-mail or news group posting.
(e) Taking any action in order to obtain services to which the User is not entitled.
10. Warranty Against Unlawful Use.
User warrants and represents that User shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of User's account for cause.
11. Liability.
No Warranty; Limitation of Damages;
(a) User expressly agrees that use of Services provided by Company is at User's sole risk.
(b) Company guarantees 90 percent uptime for its Web servers. If uptime for User's Web server falls below 75 percent during any given month, Company will credit User as follows: Company will prorate User’s charge to account for downtime. Any such credit shall be applied to future invoices. This credit shall be User's sole and exclusive compensation for any downtime or other unavailability of Company's services under this Agreement. COMPANY SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY DAMAGES OR LOSS ARISING AS A CONSEQUENCE OF SUCH DOWNTIME OR UNAVAILABILITY.
(c) COMPANY, ITS AGENTS, AFFILIATES, LICENSORS OR THE LIKE, DO NOT REPRESENT OR
WARRANT, EXPRESSLY OR IMPLIEDLY, THAT THEIR SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THEIR SERVICES OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THEIR SERVICES, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.
(d) COMPANY, ITS OFFICERS, AGENTS, OR ANYONE ELSE IN VOLVED IN PROVIDING SERVICES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSE QUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABIL ITY TO USE SERVICES; OR FOR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANS MISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO COMPANY'S RECORDS, PROGRAMS, OR SERVICES.
(e) Company will exercise no control over the content of the information passing through Company's network except those controls expressly provided herein.
(f) COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING. COMPANY ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY USER, INCLUDING LOSS OF DATA RESULTING FROM DELAYS OR NON-DELIVERIES.
(g) IN NO EVENT SHALL COMPANY'S LIABILITY RELATED TO ANY OF THE SERVICES PERFORMED UNDER THIS AGREEMENT, EXCEED THE TOTAL FEES PAID BY USER FOR THE SUCH SERVICES. COMPANY SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS.
12. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights.
(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to User. User agrees that all right, title, and interest in any product or service provided to User belongs to Company. These products and services are only for User's use in connection with Services provided to User as outlined in this Agreement.
(b) User expressly warrants to Company that User has the right to use any patented, copyrighted, or trademarked material which User uses, posts, or otherwise transfers to Company servers.
(c) If content developed or used in connection with the development of the website setup by Company becomes the subject of a claim of infringement or misappropriation of a patent, copyright, trademark, or proprietary right of a third party, User, shall use its best efforts to:
i. Promptly replace such content with compatible non-infringing content; or
ii. Promptly modify the content to make it non-infringing without materially impairing the ability to use the content as intended; or
iii. Promptly protect Company’s right to continue using the content.
13. User's Representations.
User represents as follows:
(a) That all artwork, design, logos or photos as supplied by User are supplied with proper permission.
(b) That any work supplied by User does not infringe on any copyright or trademark.
(c) That User will indemnify and hold Company harmless from any and all claims arising out of Company's use of materials supplied by User in connection with work performed by Company on User's website.
(d) That User gives permission to Company to refuse at any time to print or place on the website any artwork or any kind that Company, in Company's sole discretion, believes is an invasion of privacy, degrading, libelous, unlawful, obscene, pornographic, in bad taste, or which in the sole judgment of Company is an infringement on a trademark or copyright belonging to others; provided that Company shall have no affirmative obligation to review the website for any such infringement.
14. Breach or Cancellation.
(a) In the event of any uncured default in payment within 10 business days after notice by the Company, the User shall be deemed to be in default under this Agreement. Upon such Agreement default, or if the User gives notice of cancellation of the Agreement without any default on the part of Company, the Company is immediately entitled to all payments previously made and to invoice for all work including overage, to the date of cancellation or breach. There shall be no right to a refund to any payments already made. Company shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.
(b) In the event of any uncured default by the Company within five business days after notice by User concerning the website setup completion date, the Company shall be deemed in default under the Agreement and the User shall be entitled to a refund of payments made at which time the Agreement is canceled, the work is deemed that of Company, without any warranties by the Company.
15. Hardware, Equipment, and Software.
User is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to use Company services. Company makes no representations, warranties, or assurances that User's equipment will be compatible with Company Services.
16. Ownership.
The services provided by Company under this Agreement and all materials, products, and modifications developed by or prepared for User by Company under this Agreement are the property of Company and all right, title and interest therein shall vest in Company exclusively throughout the universe.
17. Age.
User expressly represents and warrants that User and any person to whom User grants access to User's Company account are at least 18 years of age.
18. Indemnification.
User agrees to defend, indemnify, and hold Company harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fees, asserted against Company, its agents, servants, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by User, User's agents, employees, or assigns. User further agrees to defend, indemnify, and hold harmless Company against liabilities arising out of:
(a) Any liability to Company arising by virtue of any use of Company's services by User for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to User;
(c) Any material supplied by User infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by User, or violation by User of intellectual property rights of any other party; and
(e) Any defective product which User sold or distributed by means of Services.
User agrees that the liability limit of Company shall in no event be greater than the aggregate dollar amount which User paid during the terms of this Agreement. Company shall not be responsible for any attorneys' fees and court costs paid by User under any such circumstance.
19. Attorneys' Fees.
If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
20. Notice.
User agrees to keep Company informed of all current contact information for User's account, Changes in User's account information may be reported to Company by e-mail at customersupport@realtimeordering.com. Failure to maintain or keep current all contact information shall be a ground for Company to terminate User's account for cause.
21. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the state of California. User agrees, in the event any suit is brought in connection with Company's provision of Services to User, to submit to the jurisdiction of the state of California, venue in Riverside County.
22. Severability.
In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
25. Waiver.
No waiver by Company of any breach by User of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such a writing.