TERMS OF AGREEMENT
Effective Date: July 6, 2017
This is an agreement (“Agreement”) between Bin10 Technologies, LLC (“we”, “us”, “Presto Order”) and you, an end user (“you”, “user” or “subscriber”) of Presto Order service and software (the “Service”) as described herein. By establishing, activating, using, or paying for the Service, you acknowledge that you have read and understood these terms, you agree to the terms and conditions in this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms, and to the prices, charges, and conditions provided to you in association with your enrollment, including marketing materials and the Presto Order website, which are incorporated herein by reference. This Agreement governs the Service and any website, application or software used in conjunction with the Service.
SERVICE DESCRIPTION AND TOS
Presto Order provides software and services for restaurants. The Service is a paid service. The paid Service is offered on a transactional basis, whereby Presto Order charges the restaurant $1.25 (base charge not including SMS or Fax service) per online order. We may alter, expand, or reduce the features of the service from time to time without notice. You acknowledge that not all Services can be guaranteed to perform acceptably from all locations due to reliance on Internet communications.
You may cancel the Service at any time, a written notification is required.
Termination for Cause
Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, Presto Order, may terminate this Agreement and/or suspend the provision of the Service immediately for: illegal, fraudulent, excessive or improper use of the Service or if deemed reasonably necessary by Presto Order to prevent interruption or disruption to the Presto Order system, its business or other customers; if any portion of an invoice not reasonably disputed in good faith as herein provided remains unpaid when due; or for breach, not subject to cure. Presto Order shall not be liable to you or any third party should we exercise our right to discontinue Service, in whole or in part, or terminate this Agreement pursuant to this section.
USE OF SERVICE
Responsibility for Account Information
In connection with your use of the Service, you will be asked to provide an email address in connection with your use of the Service and website. You are entirely responsible for maintaining confidentiality of your password and account information, and all identification and security codes that control access to the Service and website. You are responsible for all uses of the Service in association with your account, whether or not authorized by you.
Responsibility for Communications and Content
You are the sole owner of content and solely responsible for the content of all communications using your account. You must comply with all laws while using the Service; you must not transmit any communication that violates any law, court order or regulation; you must not violate any third party rights in using the Service; and you must not use the Service in any way that damages, interferes with, or disrupts Presto Order’s system or other users. We may suspend any such communications. You understand and agree that your use of the Service and any content is solely at your own risk.
Consent to Receive Email
By establishing an account with Presto Order, you consent to receive email communication from us concerning services including without limitation, signup confirmation, installation guides, notices of service updates and other correspondence required for administration of the Service. We expect to communicate with you as necessary via email and the Presto Order website.
Resale and Transfer
You are expressly prohibited from reselling or transferring the Service and/or software to any other person for any purpose, without express written permission from Presto Order in advance.
Unlawful and Prohibited Use
You agree to use the Service only for lawful purposes. You are expressly prohibited from using the Service to transmit or receive any communication or material of any kind when in Presto Order’s sole judgment the transmission, receipt, or possession of such communication or material would constitute, or encourages conduct that would constitute, a criminal offense, give rise to a civil liability, or otherwise violate any applicable laws. You are expressly prohibited from using the Service for any abusive or fraudulent purpose, including using the Service in a way that interferes with our ability to provide the Service to you or other customers or avoids your obligation to pay for communications services. Presto Order, in its sole discretion, may terminate your Service without advance notice if it believes you have violated the aforementioned restrictions, or if you act in a manner that is threatening, obscene, harassing, or abusive to Presto Order personnel. You are liable for any and all use of the Service by any person using the Service provided to you and agree to indemnify and hold harmless Presto Order against any and all liability for any such use. If Presto Order, in its sole discretion, believes that you have violated the aforementioned restrictions, Presto Order may forward personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
Unauthorized Commercial Use
The Service is for internal business purposes only, or for the direct benefit of you, your company or affiliated organization. You agree that will not make the Service available to unaffiliated persons, whether or not you generate income from this practice.
Theft of Service
You agree to notify Presto Order immediately if you become aware at any time that your Service is being stolen or fraudulently used, or access to your identification codes or security codes has been compromised. You must provide a detailed description of the circumstances of the theft or stolen or fraudulent use of the Service and supply any additional documentation reasonably requested by Presto Order. Failure to do so in a timely manner may result in the termination of your Service and additional charges.
Copyright, Trademark, and Unauthorized Use
The Service and any software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents, and materials on Presto Order’s website are protected by copyright, trademark, or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “Marks”) of Presto Order are and shall remain the exclusive property of Presto Order and nothing in this Agreement shall grant you the right or license to use such Marks.
Copyright Agent: Presto Order
Audit and Law Enforcement
Presto Order reserves the right to audit your use of the Service to enforce the provisions of this Agreement. Presto Order reserves the right to track and monitor your Service and usage subject to the requirements of the United States Patriot Act and other laws and appropriate law enforcement processes. You acknowledge and agree that this Agreement is sufficient notice to you of such monitoring to the extent any notice is required under applicable federal or state law.
CHARGES AND PAYMENTS
Price and Price Changes
Prices and charges relating to the Service are posted on the Presto Order website. We may change the prices and charges for the Service from time to time. Price changes will take effect for new users immediately. Existing users will continue with the price they originally agreed upon. If an existing user opts to change their pricing tier, the price in-effect at the time will be charged.
You acknowledge and agree that credit allowances for interruption of the Service will not be provided.
You may cancel the Service at any time, a written notification is required. Presto Order may take down a website or remove it from current distribution due to: (a) an allegation or actual infringement of any intellectual property right or right of publicity or privacy of any third party, (b) an allegation or actual defamation, (c) ceasing to do business, or (d) filing a petition in bankruptcy, dissolving or otherwise failing or unable to pay your debts as they become due. A website may be removed at any time if it is determined that the website: (i) may infringe or otherwise violate the intellectual property rights or any other rights of any third party; (ii) violates any applicable law, regulation, card association rule, or is subject to an injunction; (iii) may create liability for Presto Order; or (iv) may contain a virus, malware or spyware, or may have an adverse impact on Presto Order’s systems.
Your Account Obligations
In consideration of your use of the Service, you agree to: provide true, accurate, and current information about yourself when creating an account; maintain the confidentiality of your account and password and restrict access to your computer; and accept responsibility for all activities that occur under your account or password. If you provide any information that is untrue, inaccurate, or not current, we reserve the right to suspend or terminate your account and refuse any and all current and future use of the Service. You further agree to immediately notify us of any unauthorized use of your password or account or any other breach of security.
You agree to defend, indemnify, and hold Presto Order, its affiliates, and agents and any other service provider who furnishes services to you or enables us to furnish services to you in connection with this Agreement or the Service, harmless from claims or damages relating to or arising out of the Service or this Agreement, including, but not limited to: (1) your use of the Service (including without limitation, any person accessing the Service using your account; (2) any actual or alleged violation of this Agreement or any applicable law, rule or regulation by you or any person accessing the Service using your account; or (3) any actual or alleged infringement or violation by you or any person accessing the Service using your account of any intellectual property, privacy right, or other right of any person or entity. You agree that Presto Order should not be and is not responsible for any third party claims against us that arise from your use of the Service. Further, you agree to reimburse us for all of our costs and expenses related to the defense of any such claims, including attorneys’ fees, unless such claims are based on our willful misconduct or gross negligence. Presto Order and its affiliates do not have any responsibility or liability to a subscriber of an website in any way with respect to the subscriber’s use of an website.
This Service may, on occasion, provide links to a third party’s website. These links allow you to leave the Site, and we encourage you to be aware when you leave the Site and to read the terms and conditions and privacy statements of each and every third party website that you visit. The linked website are not under our control and we are not responsible for the contents of any linked website or any link contained in a linked website. Presto Order is not responsible for examining or evaluating such website, does not warrant or endorse them, and is not affiliated with the offerings, content, or practices of any third party website.
Limitations of Liability
BY ENROLLING IN, ACTIVATING, USING, OR PAYING FOR THE SERVICE, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE LIMITATIONS OF PRESTO ORDER SERVICE DESCRIBED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF PRESTO ORDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, NOT TO EXCEED THE TOTAL AMOUNTS PAID BY YOU IN THE TWELVE MONTHS UNDER THIS AGREEMENT IMMEDIATELY PRECEDING THE CLAIM.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, PRESTO ORDER, ON BEHALF OF ITSELF AND ITS AFFILIATES AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER PRESTO ORDER NOR ITS AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WARRANTS THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. NEITHER PRESTO ORDER INC NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR USE OF SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, PRESTO ORDER EMPLOYEES, AGENTS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
This Agreement does not provide any third party with a remedy, claim, or right of reimbursement. Failure by Presto Order to enforce any provision(s) of this Agreement shall not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between us and supersedes all prior agreements, understandings, statements, or proposals concerning the Service, including representations, whether written or oral. No written or oral statement, advertisement, or service description not expressly contained in the Agreement will be allowed to contradict, explain, or supplement it. Neither you nor Presto Order is relying on any representations or statements by the other party or any other person that are not included in this Agreement. If any provision in this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
This Agreement, and all other aspects of the use of the Service and the Presto Order website, shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its choice of law rules. This governing law provision applies no matter where you reside, or where you use or pay for the Service. You agree to submit to the exclusive jurisdiction of the state or Texas courts located in or with responsibility for Rockwall County, Texas to resolve any disputes arising hereunder. ANY CAUSE OF ACTION BY USE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER IT AROSE OR BE FOREVER WAIVED AND BARRED.
Events Beyond Our Control
Presto Order will not be responsible to you for any delay, failure in performance, loss, or damage due to fire, explosion, power blackout, earthquake, volcanic action, flood, the weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond our reasonable control.
We can assign all or part of our rights or duties under this Agreement without notifying you. If we do that, we have no further obligations to you. You may not assign this Agreement or the Service without our prior written consent.
The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations, billings, and your obligations to pay for the Service provided, including any additional usage charges, shall survive any termination of this Agreement or termination of the Service.
Failure by Presto Order to insist upon strict performance of any terms or conditions of this Agreement or failure or delay to exercise any rights or remedies provided herein or by law shall not release you from any of the warranties of obligations of this Agreement, and shall not be deemed a waiver of any right of Presto Order to insist upon strict performance hereof or any of its rights and remedies.
Changes to this Agreement