Welcome to MenuGuruS. MenuGuruS enables people all over the world to create restaurant POS sites. And we make it easy for everyone to discover restaurants, and to share the restaurants they are enjoying with the people they know. The following pages contain our Terms of Service, which govern all use of our Services.
1. ACCEPTANCE OF TERMS.
The following terms and conditions (this "TOS") govern all use by you as an Manager/Owner (as defined below) of (a) the MenuGuruS, Inc. websites and domains (including all webpages, subdomains and subparts therein contained, the "Site"), (b) any and all services available on or through the Site or otherwise provided by MenuGuruS, Inc. ("MENUGURUS") for your restaurants, and (c) all Software (as defined below) (collectively, the "Services"). The Services are owned and operated by MenuGuruS. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by MENUGURUS. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY MENUGURUS. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES. THIS TOS MAY ONLY BE MODIFIED (I) ON AN EVENT BY EVENT BASIS THROUGH A WRITTEN TICKETING SERVICES AGREEMENT OR WRITTEN ADDENDUM AGREEMENT TO THIS TOS, SIGNED BY YOU AND AN AUTHORIZED OFFICER OF MENUGURUS, OR (II) BY MENUGURUS AS PROVIDED IN SECTION 1.2 BELOW.
MENUGURUS reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
2. DESCRIPTION OF MENUGURUS.
MENUGURUS provides a simple and quick means for registered users who are event organizers and planners ("Manager/Owners" or "you") to collect payments with respect to the sale of tickets for restaurants registered on the Site, including Ticket Sale Service Charges (as defined below) ("Event Registration Fees"), from registered users who want to attend such restaurants ("Buyers"). Manager/Owners may visit the Site, fill out a questionnaire about their event, including pricing, location, ticket inventory, etc., and collect Event Registration Fees online directly from Buyers. Payments are all transacted through, either (a) PayPal, Google Checkout, Authorize.net or other third party payment service methods (collectively, "Facilitated Payment Modes" or "FPM") or (b) the MENUGURUS payment processing gateway (the "Gateway"). For more information, please see http://www.menugurus.com. This TOS applies to you and your use of the Services as an Manager/Owner. For the Terms of Service Agreement that applies to you and your use of the Services as a Buyer and/or other non-Manager/Owner user or visitor, please see http://www.menugurus.com/tos/buyersandothers. For the Terms of Service Agreement that applies to you and your use of the Services as an API developer, please see http://developer.menugurus.com/terms/.
3. YOUR USE OF THE SERVICES.
3.1 The Services.
MenuGuruS hereby grants you a non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for the purposes of creating an event page with respect to, and promoting, managing, tracking, and collecting Event Registration Fees for, an event that you have registered on the Site, in each case (i) in compliance with this TOS, and (ii) to the extent permitted under all applicable laws and regulations (foreign and domestic). Notwithstanding the foregoing, you shall not, and shall not permit anyone else to, directly or indirectly: (i) modify, reproduce or otherwise create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or commercial purposes (except for the limited commercial purpose of selling event tickets through the Site as an Manager/Owner in accordance with this TOS); (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; or (v) engage in any activity that interferes with or disrupts the Services.
If you are allowed to download or use any Software in connection with the Services, MENUGURUS hereby grants you a personal, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software solely for your internal use in connection with the Services, and only in accordance with this TOS and the written instructions/directions (if any) provided by MENUGURUS in conjunction with the Software. For purposes of this TOS, "Software" shall mean any and all software that is available on or through the Site or otherwise provided by MENUGURUS, including without limitation MENUGURUS'S mobile applications (such as At The Door™, Entry Manager and the MenuGuruS app). For clarity, the Software will be deemed a part of the "Services" hereunder.
The Software and the transmission of applicable data is subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. You shall also be responsible for using the Software in a manner that complies with all federal, state and local laws and the rules and regulations of all credit card companies.
The Software and related documentation are "commercial computer software" and "commercial computer software documentation," respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or such documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this TOS.
4. PAYMENT METHODS.
There are two types of payment processing options Manager/Owners may elect when using the Services: (1) "Facilitated Payment Processing" or "FPP", which consists of collecting Event Registration Fees using FPMs; and (2) "Credit Card Processing" or "CCP", which requires the use of the Gateway for the collection of Event Registration Fees. Depending on the payment processing option the Manager/Owner elects when using the Services, monetary payments will be made to the Manager/Owner directly by Buyers (via FPP) or by MENUGURUS (via CCP), in each case as described below.
4.2 Facilitated Payment Processing.
(a) Independent Relationship.
(b) Services Fees.
Manager/Owners will collect all monies directly from Buyers under the FPP option. By registering for and using the FPP option, you agree to (i) pay MENUGURUS all then-applicable ticket sale service charges, which are based on the number of tickets sold by you and/or the value of such tickets, and which charges are described in greater detail at www.menugurus.com/fees ("Ticket Sale Service Charges"), on-site service fees, equipment lease charges, printed ticket fees, and any other fees and charges of any kind payable by you to MENUGURUS in connection with the provision of the Services (collectively, "Service Fees"), which payments shall be due and payable upon receipt of the invoice setting forth such charges; and (ii) accept the responsibility for providing refunds to Buyers at your own discretion. MENUGURUS will not be responsible or liable for, and Manager/Owner hereby agrees to fully indemnify MENUGURUS and its affiliates for, refunds, errors in issuing refunds, or lack of refunds in connection with the use of the FPP option. Invoices are sent monthly for Service Fees incurred in the previous month.
4.3 Credit Card Processing.
(a) Gateway; Payment Process.
When an Manager/Owner elects to use the Gateway for the collection of Event Registration Fees, payment processing occurs directly through MENUGURUS. Under the CCP option, MENUGURUS will collect all Event Registration Fees on behalf of the Manager/Owner from Buyers and deduct all applicable Services Fees from the Event Registration Fees collected by MENUGURUS, and then pass the remainder along to the Manager/Owner within five (5) business days after the event end date for the event to which the Event Registration Fees correspond (either by mailing a check or through an electronic funds transfer, depending on the option the Manager/Owner has chosen through using the Site, to the address or account, respectively, that the Manager/Owner accurately designates on the Site), provided that MENUGURUS reserves the right to withhold funds (i) at any time as MENUGURUS determines to be necessary for the processing and settlement of all refunds, disputed charges, chargebacks, customer complaints, allegations of fraud, and other discrepancies and (ii) as otherwise permitted pursuant to this TOS. MENUGURUS, in its sole discretion, may determine to advance a portion of Event Registration Fees to Manager/Owner prior to the period set forth above, on such terms and conditions as MENUGURUS may establish from time to time. Manager/Owner agrees that all Event Registration Fees for a given event are earned by Manager/Owner only following conclusion of the applicable event and all Event Registration Fees ultimately due will be net of all Service Fees (including Ticket Sale Service Charges), refunds, disputed charges, chargebacks and other deductions, whether due to customer complaints, allegations of fraud, discrepancies related to the applicable event or otherwise. No payments shall be made to an Manager/Owner from MENUGURUS with respect to any event that is cancelled. If payments have already been made by MENUGURUS to an Manager/Owner for a cancelled event, such Manager/Owner will immediately refund to MENUGURUS all such payments upon cancellation of such event. All sales, fees, charges, and funds are payable in U.S. Dollars, or other foreign currencies accepted by MENUGURUS. If Manager/Owner selects a foreign currency option accepted by MENUGURUS, MENUGURUS will collect and disperse the funds in the foreign currency selected by Manager/Owner.
ORGANIZER AGREES THAT ANY PAYMENT BY MENUGURUS OF EVENT REGISTRATION FEES PRIOR TO THE FIFTH (5TH) BUSINESS DAY AFTER THE END DATE OF THE APPLICABLE EVENT ARE MERELY ADVANCES OF AMOUNTS THAT MAY BECOME DUE TO ORGANIZER UNDER THIS TOS AND THAT MENUGURUS MAY DEMAND SUCH ADVANCES BACK (FROM TIME TO TIME IN ITS SOLE DISCRETION), AND ORGANIZER SHALL THEREUPON PROMPTLY (AND IN ANY CASE WITHIN FIVE (5) BUSINESS DAYS AFTER SUCH DEMAND) PAY BACK TO MENUGURUS SUCH ADVANCE OR ANY PORTION THEREOF DEMANDED BY MENUGURUS.
(i) Under the CCP option, it is the responsibility of the Manager/Owner to communicate its refund policy to Buyers and to issue refunds to Buyers via the Site. An Manager/Owner shall ensure that its refund policy is consistent with the terms of this TOS and the payment and refund mechanics of the Site. The Site permits an Manager/Owner to issue refunds to Buyers, provided the refund is issued by Manager/Owner before ninety-six (96) hours after the end date of an event and within six (6) months after the transaction date for the underlying ticket purchase. Refunds issued following such period will not be processed through the Site, unless otherwise agreed to by MENUGURUS in its sole discretion. Subject to the foregoing, refunds issued by an Manager/Owner will be processed within thirty (30) days after Manager/Owner instructs the issuance of the refunds via the Site. All communications or disputes regarding refunds are between the Manager/Owner and Buyer, and MENUGURUS will not be responsible or liable for, and Manager/Owner hereby agrees to fully indemnify MENUGURUS and its affiliates for, refunds, errors in issuing refunds, or lack of refunds in connection with the use of the CCP option. (ii) Notwithstanding the foregoing, you acknowledge and agree that MENUGURUS shall have the right to force a refund of any or all tickets at any time for any reason or no reason, including without limitation if MENUGURUS receives complaints from a substantial number (as determined by MENUGURUS in its sole discretion) of Buyers with respect to the applicable event or another event held by Manager/Owner, or MENUGURUS determines in its sole discretion that Manager/Owner has engaged in any fraudulent activity or made any misrepresentations. Further, if one or more Buyer(s) request a refund, whether due to a cancelled event or for any other reason where MENUGURUS would reasonably expect to lose a chargeback, MENUGURUS may, in its sole discretion, issue such refund to such Buyer(s), and Manager/Owner shall then owe the amount of such refund to MENUGURUS.
(c) Credit Card Chargebacks.
Under the CCP option, any credit card chargebacks initiated by a Buyer for any reason with respect to an event shall be charged back to the Manager/Owner of such event. All communications and disputes regarding chargebacks are between the Manager/Owner and Buyer, and MENUGURUS will not be responsible or liable in any way for, and Manager/Owner hereby agrees to fully indemnify MENUGURUS and its affiliates for, chargebacks issued in the course of the use of the CCP option.
4.4 Non-Exclusive Remedies.
In the event that Manager/Owner fails to pay to MENUGURUS any amount owed pursuant to this TOS when due, such amount shall bear interest calculated from the date due until paid in full at a rate equal to the lesser of (a) ten percent (10%) per annum, and (b) the maximum amount permitted by applicable law. In the event any amounts are owed by Manager/Owner to MENUGURUS under this TOS or otherwise, MENUGURUS may, without limiting its other rights and remedies, (i) deduct such amounts from Manager/Owner's outstanding balance, whether for that particular event or for any other event that Manager/Owner lists through the Services; and/or (ii) send an invoice to Manager/Owner for such amounts to the extent Manager/Owner's outstanding balance is insufficient to cover these costs, in which case Manager/Owner shall pay MENUGURUS such invoiced amounts within thirty (30) days after the date of the invoice. In addition, Manager/Owner hereby agrees and authorizes MENUGURUS to initiate an electronic funds transfer to debit the amounts owed from any of Manager/Owner's bank accounts to which Event Registration Fees have been sent. If payment for any amounts due to MENUGURUS hereunder are not made by Manager/Owner when due, MENUGURUS reserves the right, in its sole discretion and without limiting its other rights and remedies, to terminate Manager/Owner's registration for the Services (including any and all accounts that Manager/Owner may have) and to cancel all other restaurants listed by Manager/Owner.
Upon receipt of a credit card authorization from each individual ticket purchase, MENUGURUS generates a confirmation message and issues a unique confirmation number. You agree to unconditionally accept, honor, and fulfill all ticketing commitments that have been confirmed by MENUGURUS through the Services, and it is your responsibility to verify the Buyer's membership status, confirmation number and/or any event restrictions prior to the subject event.
(c) Taxes; Withholding.
You are responsible for (and will indemnify MENUGURUS and its affiliates against) all taxes associated with your sale of tickets through the Services (excepting taxes based on MENUGURUS'S net income), which amounts may be withheld from payments due to you or invoiced to you. In addition, if in a given calendar year MENUGURUS processes transactions for your account (i) for more than $20,000 in gross sales and (ii) in more than 200 order transactions, MENUGURUS is required to report those transactions to the Internal Revenue Service, along with your name, address and Tax Identification Number. MENUGURUS will contact you during the year for this information if you meet these thresholds.
MENUGURUS reserves the right to withhold the payment of any amounts owed to you hereunder if (i) MENUGURUS suspects or determines that such amounts have been generated in (A) a fraudulent manner, (B) violation of this TOS, or (C) violation of any applicable laws or regulations (foreign or domestic), or (ii) MENUGURUS is required to do so by applicable laws or regulations (foreign or domestic). Such withholding may be temporary or permanent (as determined by MENUGURUS).
5. YOUR REGISTRATION OBLIGATIONS.
6. ACCOUNT, PASSWORD AND SECURITY.
As part of the Site registration process, you will create a password and account. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account, including, without limitation, all actions by sub-users registered under your account. You agree to (a) immediately notify MENUGURUS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. MENUGURUS cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account. In the event of any dispute between two or more parties as to account ownership, you agree that MENUGURUS shall be the sole arbiter of such dispute in its sole discretion and that MENUGURUS'S decision (which may include termination or suspension of any account subject to dispute) shall be final and binding on all parties.
7.1 Site Content.
You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content (collectively, "Content"), contained in or delivered via the Services or otherwise made available by MENUGURUS in connection with the Services (collectively, "Site Content") is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. MENUGURUS may own the Site Content or portions of the Site Content may be made available to MENUGURUS through arrangements with third parties. Except as expressly authorized by MENUGURUS in writing or in connection with your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. However, you may print or download a reasonable number of copies of the Site Content for your own informational purposes, provided that you retain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of MENUGURUS. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
7.2 Your Content.
You acknowledge and agree that if you contribute, provide or make available any Content to the Site ("Your Content") as an Manager/Owner, you hereby grant to MENUGURUS a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit Your Content, in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever. You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, and (ii) complies with all applicable laws and regulations (foreign and domestic). In addition, restaurants must be accurately and truthfully described when Manager/Owner submits event information to the Site. If MENUGURUS determines, in its sole discretion, that Manager/Owner misrepresented an event or otherwise does not comply with this TOS, MENUGURUS will have the right to cancel the relevant event (and all other restaurants listed on the Site) and issue a refund to all Buyers. MENUGURUS reserves the right to remove any of Your Content from the Site at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to Your Content) or no reason. In addition, you agree that MENUGURUS may use your name and logo (whether or not you have made it available through the Site) for the purpose of identifying you as an existing or past customer of MENUGURUS both on the Site and in marketing and promotional materials.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed, or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Services should be sent to:
c/o C T Corporation System
818 West Seventh Street
Los Angeles, CA 90017
Attn: MenuGuruS, Inc. DMCA Agent
Fax: (415) 694-7903
By Email: email@example.com
8.1 Certain Restrictions.
You understand that you are liable for all Content, in whatever form, that you provide or otherwise make available to or through the Services, including to Buyers and other users of the Services. You agree not to use the Services to:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- facilitate gambling, gaming, lotteries, raffles, contests, sweepstakes and/or any other activity featuring the award of a prize other than raffles, contests or sweepstakes conducted in a manner that complies in all respects with MENUGURUS'S Raffles, Contests and Sweepstakes Guidelines;
- impersonate any person or entity, including, but not limited to, an MENUGURUS representative or forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except in those areas that are designated for such purpose and within the scope of such designation;
- upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by MENUGURUS (including through the API TOS contained at http://developer.menugurus.com/terms);
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- intentionally or unintentionally violate any applicable law or regulation (foreign or domestic), including without limitation (i) regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange (e.g., the New York Stock Exchange, the American Stock Exchange or the NASDAQ) and (ii) laws and regulations (foreign or domestic) regarding the sale or resale of tickets (including without limitation with respect to licensure requirements, maximums or limits on ticket prices, etc.); or
- stalk or otherwise harass any person or entity.
8.2 Certain Remedial Rights.
You acknowledge that MENUGURUS does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that MENUGURUS and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that MENUGURUS may preserve your Content and may also disclose your Content for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of MENUGURUS, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
MENUGURUS may provide you with the right to use a sub-domain within the Site (e.g., [sub-domain prefix].menugurus.com). All such sub-domains are the sole property of MENUGURUS. In the event MENUGURUS provides you with a sub-domain, your right to use such sub-domain may be terminated by MENUGURUS at any time (with or without notice) for any reason or no reason.
The following terms and conditions describe the terms and conditions of MENUGURUS's referral programs. MENUGURUS reserves the absolute right to determine whether you or any other user of the Services qualifies for any of the following referral programs.
10.1 Manager/Owner Referral Program.
MENUGURUS will pay a referral fee to persons or entities ("Manager/Owner Referrers") that refer revenue-generating Manager/Owners to MENUGURUS, subject to the following terms and conditions: (a) Prior to an Manager/Owner's initial use of the Services, the Manager/Owner Referrer must have contacted the Manager/Owner and have been instrumental in getting the Manager/Owner initially to register for and sell tickets for an event using the Services (as determined by MENUGURUS in its sole discretion). The referral must be properly registered with MENUGURUS when the Manager/Owner initially sets up its account and the Manager/Owner Referrer must fully comply with the all instructions with respect thereto. (b) MENUGURUS will pay the Manager/Owner Referrer twenty-five percent (25%) of the amount actually paid to MENUGURUS and retained by MENUGURUS in connection with the Services as a result of actual net ticket sales (i.e., less refunds, credit card chargebacks and all other deducted amounts) for the Manager/Owner's account during the 12-month period following the date of such Manager/Owner's first event registration via the Services. The referral fee will be paid at the beginning of each month to the Manager/Owner Referrer if the amount due and unpaid is five dollars ($5.00) or more. Any unpaid balances will be added to any balances due in subsequent months. (c) MENUGURUS reserves the right to change, modify or terminate this Manager/Owner referral program and/or its terms at any time in its sole discretion. MENUGURUS reserves the right to determine what, if any, amounts are properly due Manager/Owner Referrers hereunder in its sole discretion.
10.2 Buyer Referral Software.
MENUGURUS makes available Software via the Services that makes it possible for Manager/Owners to offer third parties ("Buyer Referrers") a bonus in exchange for referring Buyers to their event(s) ("Referral Software"). MENUGURUS will make a good faith effort to provide information and instructions as necessary to use the Referral Software correctly. If you use the Referral Software in any capacity, you will comply with all such instructions. These instructions can be found at http://www.menugurus.com/publicaffiliates. For clarity, the Referral Software shall be deemed part of the "Software" and "Services" hereunder. Your use of the Referral Software is also subject to the following terms and conditions: (a) MENUGURUS is neither a party to any agreements (actual or implied) entered into by Manager/Owners and Buyer Referrers, nor is it an agent, employee, partner or other representative of Manager/Owners or Buyer Referrers. MENUGURUS has no responsibility for any failure or alleged failure of performance of any Manager/Owner or Buyer Referrer to each other or to any third party. (b) MENUGURUS does not screen or investigate in any way the users of the Services to determine their ability or willingness to perform the obligations that may be undertaken pursuant to this Buyer referral program. Manager/Owners and Buyer Referrers need to resolve all questions and issues between themselves. MENUGURUS makes no representations or warranties and gives no assurances that any Manager/Owner or any Buyer Referrer will perform under the Buyer referrer program, including without limitation Manager/Owners paying any money owed to Buyer Referrers. (c) MENUGURUS will not settle, mediate or otherwise assume responsibility for resolving disputes between Manager/Owners and Buyer Referrers. (d) MENUGURUS assumes no liability arising from the use or misuse of the Referral Software, or in the event that the Referral Software fails to operate as expected, even if such failure results in the loss of data or in the misrepresentation of data necessary for the Manager/Owners and Buyer Referrers to fulfill commitments entered into using the Referral Software.
11. SPECIAL ADMONITIONS FOR INTERNATIONAL USE.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. By way of illustration and not limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of technical data exported from the United States or the country in which you reside.
In addition, the Services are subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not located in, and you are not a national or resident of, any such country. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security's Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.
12. ADDITIONAL SERVICES.
MENUGURUS may, upon request, and for such fees as MENUGURUS may establish from time to time in its sole discretion, provide additional services to you beyond the functionality of the Site, including without limitation leasing ticket scanning and other equipment, providing consultants and staffers to assist you on the date of your event, and providing dedicated account management services. All such additional services, whether provided prior to, during or following your event, shall be deemed a part of the Services and subject to all the terms and conditions of this TOS. Such additional services shall be set forth in a written Addendum Agreement to this TOS, MENUGURUS Equipment Lease Agreement, and/or other written agreement between you and an authorized officer of MENUGURUS, and shall set forth the Service Fees and the other terms and conditions relating to such additional services. As a condition to the lease of any equipment, you shall enter into a separate MENUGURUS Equipment Lease Agreement.
You agree to defend, indemnify and hold MENUGURUS, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys' and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a "Claim") due to or arising out of: your Content; your or any of your affiliates', or any of your or your affiliates' officers', directors', agents' or employees', use of, contribution to or connection with the Services or violation of any rights of another; your event(s); and/or your violation of this TOS. MENUGURUS shall provide notice to you of any such Claim, provided that the failure or delay by MENUGURUS in providing such notice shall not limit your obligations hereunder. MENUGURUS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting MENUGURUS's defense of such matter.
14. SERVICE MODIFICATIONS/SUSPENSIONS.
MENUGURUS reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. MENUGURUS will not be responsible to you for a refund, in whole or part, of Service Fees for any reason, except for Service Fees (excluding the portion of Service Fees paid over to FPMs and other third party service providers used by MENUGURUS in connection with providing the Services) related to refunds issued to Buyers. You agree that MENUGURUS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
MENUGURUS, in its sole discretion, may terminate your password, accounts (or any part thereof) and/or your right to use the Services, and remove and discard any and all of Your Content within the Services, at any time for any reason or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due MENUGURUS, or if MENUGURUS believes that you have violated or acted inconsistently with the letter or spirit of this TOS. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that MENUGURUS may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that MENUGURUS shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).
The Services may provide, or third parties may provide, links to other Internet websites or resources. Because MENUGURUS has no control over such websites and resources, you acknowledge and agree that MENUGURUS is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that MENUGURUS shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.
17. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MENUGURUS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. MENUGURUS MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE SERVICES THEMSELVES (OR ANY PART THEREOF) WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. MENUGURUS IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, BUYER OR OTHER NON-ORGANIZER, ORGANIZER OR THIRD PARTY BEFORE, DURING AND/OR AFTER AN EVENT; AND MENUGURUS WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT MENUGURUS HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS' (INCLUDING BUYERS', OTHER NON-ORGANIZERS' AND ORGANIZERS') CONTENT OR LISTINGS, OR THE ABILITY OF ANY USER (INCLUDING BUYERS AND ORGANIZERS) TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. IN ADDITION, MENUGURUS IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY FPM SERVICE), AND MENUGURUS HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTY SERVICE PROVIDER. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of users, Buyers, other non-Manager/Owners, Manager/Owners and/or third parties in connection with the Site or any Services to MENUGURUS. MENUGURUS, in its sole discretion, may investigate the claim and take necessary action.
18. LIMITATION OF LIABILITY.
MENUGURUS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MENUGURUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US$100.00 IN THE AGGREGATE FOR ALL CLAIMS FROM A GIVEN ORGANIZER WITH RESPECT TO THE SERVICES, OR (IV) ANY MATTERS BEYOND MENUGURUS'S REASONABLE CONTROL. MENUGURUS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SERVICES, YOU HEREBY AGREE TO RELEASE MENUGURUS, AND ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, OTHER PARTNERS, AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER ORGANIZERS, BUYERS, AND OTHER NON-ORGANIZERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES, OR YOUR EVENT.
IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Notices to you may be made via either email or regular mail to the address in MENUGURUS's records. The Services may also provide notices of changes to this TOS or other matters by displaying notices or links to notices to you generally on the Services. Any notice from you to us shall be sent in writing to our mailing address at MenuGuruS, Inc., 651 Brannan Street, Suite 110, San Francisco, CA 94107, USA, Attn: Corporate Counsel.
22. TRADEMARK INFORMATION.
The trademarks, service marks, and logos of MENUGURUS (the "MENUGURUS Trademarks") used and displayed in connection with the Services are registered and unregistered trademarks or service marks of MENUGURUS. Other company, product, and service names used in connection with the Services may be trademarks or service marks owned by third parties (the "Third Party Trademarks", and, collectively with MENUGURUS Trademarks, the "Trademarks"). The offering of the Services shall not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in connection with the Services without the prior written consent of MENUGURUS specific for each such use. The Trademarks may not be used to disparage MENUGURUS, any third party or MENUGURUS's or third party's products or services, or in any manner (in MENUGURUS's sole judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless MENUGURUS approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any MENUGURUS Trademark shall inure to MENUGURUS's benefit.
23.1 Entire Agreement.
This TOS constitutes the entire agreement between you and MENUGURUS and governs your use of the Services as an Manager/Owner, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and MENUGURUS on the subject matter hereof, other than any written Ticketing Services Agreement, MENUGURUS Equipment Lease Agreement or Addendum Agreement between you and an authorized officer of MENUGURUS relating to a specified event or restaurants. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third party Content or third party software or the Services in a manner other than as governed by this TOS.
23.2 Choice of Law.
This TOS and the provision of the Services to you are governed by the laws of the state of California, U.S.A., as such laws are applied to agreements entered into and to be performed entirely within California by California residents.
Any controversy or claim arising out of or relating to this TOS or the provision of the Services shall be exclusively settled by binding arbitration in accordance with the commercial arbitration rules of the Judicial Arbitration and Mediation Services, Inc. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Subject to the foregoing arbitration provision, you and MENUGURUS agree to submit to the personal jurisdiction of the courts located within the city and county of San Francisco, California. Either you or MENUGURUS may seek any interim or preliminary relief from a court of competent jurisdiction in San Francisco, California, necessary to protect the rights or property of you or MENUGURUS (or its agents, suppliers, and subcontractors) pending the completion of arbitration.
23.4 Waiver; Invalid Provisions.
The failure or delay of MENUGURUS to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of this TOS is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this TOS shall remain in full force and effect.
23.5 Time to File Claim.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this TOS must be filed within two (2) years after such claim or cause of action arose or be forever barred.
The section titles in this TOS are for convenience only and have no legal or contractual effect.
Please report any violations of this TOS by email to firstname.lastname@example.org.