We reserve the right at any time, with or without cause, to:
change the terms and conditions of this Agreement;
change the Applications, including eliminating or discontinuing any Information or Services or other feature of the Applications; or
deny or terminate your use of and/or access to the Applications.
Permitted Use of Services and Information
The services made available on, by or through the Applications, which include or may include, without limitation, MenuMe registration, restaurant ordering or message boards, (collectively, the "Services"), as well as any information provided on, by or through the Applications or as part of or in connection with the Services or otherwise, including but not limited to data, text, graphics, designs, logos, images, audio/visual materials, links and references (collectively, the "Information"), are provided for personal use only. Without the written consent of MenuMe, no Information or any other MenuMe materials or property may be copied, reproduced, displayed, republished, downloaded, posted, digitized, translated, modified, transmitted, distributed or commercially exploited in any way, except as expressly permitted herein.
MenuMe permits you to view and print a reasonable number of copies of web pages located on the Applications for your own personal use, but not for any for-profit or commercial purpose or for resale, provided that (a) you retain all trademark, copyright, and other proprietary notices contained in the original materials, (b) you provide attribution to MenuMe, (c) the material is printed in its entirety without modification, reformatting or adaptation of any kind, and (d) any such copies are subject to the terms and conditions of this Agreement. You understand and agree that you may not authorize any Information to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any third party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of the Information. You agree to advise MenuMe promptly of any such unauthorized use of which you are aware. Failure to abide by these conditions will immediately terminate this permission and may result in the infringement of the copyrights and/or trademarks and other proprietary rights of MenuMe or others.
Postings and Other Submissions
MenuMe acknowledges and agrees that you, or your licensors as applicable, retain ownership of any and all copyrights in the Content, subject to the non-exclusive rights granted to MenuMe in the paragraph above, and that no ownership of such copyrights is transferred to MenuMe under these terms.
By posting or providing any Content on the Applications, you represent and warrant to MenuMe that you own or have the right to use and permit us to use and license such Content in the manner stated in this Agreement.
MenuMe may enable you to provide restaurant ratings consisting of a thumbs up, thumbs down or heart (your “Reviews”). Reviews are considered Content. You may not post any Reviews about a restaurant or any of their products or services if you are (a) an employee, contractor, officer or director of the restaurant; (b) an employee, contractor, officer or director of a competitor of the restaurant; or (c) related to the management or operator of the restaurant in any way, including blood, adoption or by marriage. By posting a Review, you acknowledge and agree that such Content is based upon your first-hand experience with the restaurant or product or service that is the subject of the Review.
Reviews are solely the opinions of the users that post them and none of the Reviews contain or reflect any opinions or views of MenuMe.
You agree not to post or provide any Content that belongs to any person other than yourself or that contains the name, voice or likeness of any person other than yourself unless you first obtain permission to do so, and to grant to us the rights granted in this agreement, from that person.
You further agree that we may use the posted or provided Content in any manner that we deem appropriate or necessary. We reserve the right to edit or abridge any Content for any reason, and to edit, refuse to post or remove any Content submitted by you or others. We cannot and do not guarantee that we will post all Content submitted or that such content will not be offensive, defamatory or objectionable. Although we reserve the right to remove without notice any Content for any reason, we have no obligation to delete Content that you personally may find objectionable or offensive. We do not control in real time the Content posted via the Services and as such do not guarantee the accuracy, integrity or quality of such Content. In addition to other disclaimers found in this Agreement, we do not endorse or make any warranties or representations with respect to the accuracy, completeness or timeliness of any Content posted on the Applications.
Third-Party Products and Services
You may be provided the opportunity to purchase food and beverage products (“Products”) through the Services from third-party restaurants (“Restaurants”). Although MenuMe facilitates a marketplace for such purchases, you agree and understand that all contracts for the purchase of food and beverages made via the Services are contracts between you and the applicable Restaurant, that MenuMe is not a party to such contracts, and that MenuMe has no responsibility or liability for the Restaurant’s or your performance under such contracts. The information provided for Product listings is provided by the Restaurants, and, while we require Restaurants to provide complete, accurate and non-misleading Product information, we do not represent, warrant or guarantee that such Product descriptions are accurate, complete, reliable, current, or error-free, and we are not responsible for, and disclaim any liability arising from or relating to, such Product listing information.
Descriptions or images of, or references to, third-party Products on the Applications do not imply our endorsement of such Products, and we are not responsible for, and disclaim any endorsement of, any such Product.
Restaurants, not MenuMe, are solely responsible for honoring any confirmed orders for Products and making available any Products ordered through the Applications. If you choose to order Products, you agree and understand that you are entering into an agreement with the third-party Restaurant, and you acknowledge and agree that MenuMe is not a party to such agreements, and that MenuMe disclaims all liability to you arising from or related to any such agreements.
Fees payable (“Fees”) will be displayed to you before you confirm and send an order to a Restaurant. You acknowledge and agree that, notwithstanding the fact that MenuMe is not a party to the agreement between you and the Restaurant, MenuMe acts as the Restaurant’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Restaurant. Accordingly, you agree to pay MenuMe the Fees (including any applicable taxes) for any order for Products confirmed by the applicable Restaurant. In order to establish an order pending the applicable Restaurant’s confirmation of your requested order, you understand and agree that MenuMe, on behalf of the Restaurant, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), to verify your credit card. Once MenuMe receives confirmation of your order from the applicable Restaurant, MenuMe will collect the Fees on behalf of the Restaurant in accordance with this Agreement and the pricing terms set forth in the applicable order for Products. Please note that MenuMe cannot control any fees that may be charged to you by your bank or other financial institution related to MenuMe’s collection of the Fees, and MenuMe disclaims all liability in this regard.
If your use of the Applications includes MenuMe applications for mobile devices, you hereby consent to and grant us permission to access (but not store or transfer, unless separately authorized by you) photos on your mobile device (including metadata) in order to enable tagging (e.g., date, location) of your posted Content;
You agree that we may send you communications (via email or through the Services) regarding your use of the Services and the Applications and certain features or applications of the Services and the Applications you may be interested in. To the extent you have opted to receive communications, newsletters or offers from us regarding third-party Products and services, you hereby authorize MenuMe to deliver such communications to you via email or through the Services.
Acceptable Use Policy
You agree not to use the Information, Services or the Applications to take any action or actions or to post any Content that:
1.are contrary to MenuMe's public image, goodwill or reputation;
2.infringe on our or any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
3.express or imply that any of your statements, activities or causes are endorsed by us, without our prior written consent in each instance;
4.violate any applicable law, statute, ordinance or regulation, or encourage any conduct that could constitute a criminal offense or give rise to civil liability;
5.are libelous, defamatory, threatening, harassing, invasive of privacy, abusive, tortious, hateful, discriminatory, pornographic or obscene;
6.transmit any trade secret or other material, non-public information about any person, company or entity without the authorization to do so;
7.restrict or inhibit any other visitor from using the Applications, including, without limitation, by means of "hacking" or defacing any portion of the Applications;
8.modify, adapt, sub-license, translate, sell, reverse engineer, decompile, or disassemble any portion of the Applications or Information;
9.remove any copyright, trademark, or other proprietary rights notices contained in or on the Information, Applications, or Services;
10.sublicense, sell, rent, lease, transfer, assign, or convey any rights under this Agreement to any third party, or otherwise commercially exploit or profit from the Information or content of the Applications, or any portion thereof, in any manner whatsoever, except as expressly permitted herein;
11."frame" or "mirror" any part of the Applications without our prior written authorization;
12.distribute any virus, worm or other similar or deleterious files, scripts or programming routines;
13.interfere with or disrupt any services or equipment with the intent of causing an excessive or disproportionate load on the infrastructure of MenuMe or its licensors or suppliers;
14.involve the preparation or distribution of junk mail, spam, chain letters, pyramid schemes, or other deceptive or unsolicited bulk or commercial email, or violate in any way the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act of 2003);
15.use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine" the Applications or in any way reproduce or circumvent the navigational structure or presentation of the Applications or its contents, authentication and security measures;
16.forge headers or otherwise manipulate identifiers in order to disguise the origin of any submission;
17.execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Applications' servers or any data not intended for you; and/or
18.harvest or collect information about any Applications visitors or members without their express consent.
Improper use of the Information, Services and Applications may result in termination of your access to and use of the Applications, and/or civil or criminal liabilities.
The Applications are owned and operated by MenuMe and its licensors, and the Information and Services (and any intellectual property and other rights relating thereto) are and will remain the property of MenuMe and its licensors and suppliers. The Information and Services are protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. Except as set forth in this Agreement, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sub-license, sell, reverse engineer, decompile, or disassemble any part of the Applications or any Service or Information without our prior written permission. The Information, Applications, and Services may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by MenuMe or, if so indicated in writing by MenuMe, its licensors or suppliers. Use of the Applications or any Services or Information for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Applications or any Services or Information.
The trademarks, logos, and service marks displayed on the Applications (collectively, the "Trademarks") are the registered and unregistered trademarks of MenuMe, MenuMe licensors and suppliers, and/or others. Nothing contained in this Agreement or the Applications should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark(s) without the express written permission of MenuMe, MenuMe licensors or suppliers, or the third party owner of any such Trademark, except as set forth in the following paragraph.
No Use by Children Under 13
You hereby affirm that you are over the age of 13, as the Applications are not intended for children under 13. If you are under 13 years of age, then you may not use the Applications. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
The Digital Millennium Copyright Act (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. MenuMe also reviews claims of trademark infringement. If you believe in good faith that materials hosted by MenuMe infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or if multiple copyrighted works or trademarks located on the Applications are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow MenuMe to locate the material on the Applications; (d) the name, address, telephone number, and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that MenuMe will not respond to complaints that do not meet these requirements. If MenuMe determines that the materials alleged to infringe your copyright or trademark rights do not require removal, MenuMe will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which MenuMe may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name).
Notices and counter-notices with respect to the Applications must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
Agent to Receive Notices of Claimed Infringement
2711 Centerville Road, Suite 400
Wilmington, DE 19808
Term & Termination
This Agreement is effective from the date that you first access the Applications or submit any information to MenuMe, whichever is earlier, and shall remain effective until terminated in accordance with its terms. MenuMe may immediately terminate this Agreement, and/or your access to and use of the Applications, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. MenuMe may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Applications shall immediately cease, and you shall destroy all copies of information that you have obtained from the Applications, whether made under the terms of this Agreement or otherwise. All disclaimers and all limitations of liability and all MenuMe rights of ownership shall survive any termination.
We reserve the right at any time and from time to time to modify, discontinue, temporarily or permanently, the Applications, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Applications, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate MenuMe to maintain and support the Applications, or any part or portion thereof, during the term of this Agreement.
THE APPLICATIONS, INCLUDING BUT NOT LIMITED TO THE INFORMATION AND SERVICES, ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE INFORMATION AND APPLICATIONS ARE CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE APPLICATIONS, OR YOUR USE OF THE APPLICATIONS, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE APPLICATIONS, OR ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THE APPLICATIONS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE APPLICATIONS EITHER IN TERMS OF ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE OR EQUIPMENT, AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE APPLICATIONS AND/OR SERVICES AND INFORMATION AND YOUR RELIANCE THEREON.
MENUME MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY RESTAURANTS OR OTHER THIRD-PARTY SELLERS ON THE APPLICATIONS, AND MENUME SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY RESTAURANT OR OTHER THIRD-PARTY SELLER IN CONNECTION WITH SUCH OFFERS OR SALES.
Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER MENUME NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE APPLICATIONS, INFORMATION, SERVICES AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THE APPLICATIONS, THE INFORMATION, SERVICES, OR ANY LINKED WEBSITE IS TO STOP USING THE APPLICATIONS, SERVICE, OR LINKED WEBSITE, AS APPLICABLE. NEITHER MENUME NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF (1) ANY INACCURACY, INCOMPLETENESS OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS OR SUBMISSIONS PROVIDED OR POSTED ON THE APPLICATIONS BY THIRD PARTIES OR (2) YOUR PURCHASE OF ANY THIRD-PARTY PRODUCTS OR SERVICES THROUGH THE APPLICATIONS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to fully indemnify, defend, and hold MenuMe, our licensors, suppliers, agents, successors, and assigns and our and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of this Agreement, including but not limited to the Acceptable Use Policy; (b) any allegation that any materials you submit to us or transmit to the Applications infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Applications or other websites to which the Applications are linked; and/or (d) your negligence or willful misconduct.
MenuMe makes no representation that the Applications operate (or are legally permitted to operate) in all geographic areas, or that the Information, Applications, or Services are appropriate or available for use in other locations. Accessing the Applications from territories where the Applications or any content or functionality of the Applications or portion thereof are illegal is expressly prohibited. If you choose to access the Applications, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws.
Notice for California Users
Under California Civil Code Section 1789.3, California Applications users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
Dispute Resolution/Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by binding arbitration in accordance with California Code of Civil Procedure Section 1280 et seq., and the then current rules and procedures of JAMS. The arbitration shall be a confidential proceeding, closed to the general public. The arbitration will take place in San Francisco, California and be conducted in the English language. The decision rendered by the arbitrator will be binding upon the parties hereto, and any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties consent to the jurisdiction of all federal and state courts in California. Venue will lie exclusively in San Francisco, California. For the sake of clarity, nothing in this paragraph shall affect MenuMe's ability to seek from a court injunctive or equitable relief at any time.
If any arbitration or other proceeding is brought to enforce or interpret this Agreement or matters relating to it, the substantially prevailing party, as determined by the arbitrator's award, will be entitled to recover reasonable attorneys' fees and other costs and expenses incurred in such arbitration or proceeding from the other party, in addition to any other relief to which such prevailing party is entitled; provided that in no event will the arbitrator have the authority to award punitive damages.
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by MenuMe as provided herein or otherwise by written instrument signed by MenuMe. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegatable, or sublicensable by you except with MenuMe's prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. MenuMe may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
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