idegraphics inc (ide Orders Online)
Welcome to idegraphics inc, which is on IDE Order Online’s platform. These Terms of Service (“Terms”) govern your use of IDE Orders Online (the “Service”) offered by idegraphics inc, also known as IDE Orders Online,” “we,” “our,” or “us”). These terms apply to the service relationship between you, the customer (“Customer”) and IDE Orders Online, its subsidiaries, and affiliates (collectively, and herein after “IDE Orders Online”) and contain important legal disclosures that impact the relationship between IDE Orders Online and the Customer using IDE Orders Online’s Services (as defined in the Terms below), and the Electronic Signature Agreement. Your agreement to these Terms constitutes a contract, (the “Agreement”). If you are using the Service on behalf of a business or entity, you acknowledge and agree that you have authority to bind such business or entity and that such business or entity accepts these terms.
The effective date (Effective Date”) of the Agreement is the date Customer signs up for IDE Orders Online’s Services. Customer hereby acknowledges that it has read and understood these Terms, that it agrees to the Terms and conditions of this Agreement, and that it has the legal capacity to enter into this Agreement and become bound by its terms, and the prices, charges, and conditions provided herein. Customer hereby agrees to these Terms, and the General Terms in exchange for using IDE Orders Online’s and Services.
PLEASE BE AWARE THAT IN THE EVENT THE PARTIES ARE UNABLE TO REACH A FAIR AND EQUITABLE SOLUTION AFTER GOOD FAITH NEGOTIATIONS WITH EACH OTHER, THIS AGREEMENT CONTAINS A “BINDING ARBITRATION CLAUSE” AND “CLASS ACTION WAIVER”. THESE PROVISIONS GOVERN HOW CLAIMS THAT YOU MAY HAVE AGAINST IDE ARE RESOLVED. THE ARBITRATION PROVISION IS A WAIVER PERMITTING YOU TO ONLY PURSUE CLAIMS AND SEEK RELIEF AGAINST IDE ON AN INDIVIDUAL BASIS. PURSUANT TO THIS PROVISION YOU MAY NOT SEEK RELIEF AGAINST IDE FOR ANY CLAIM YOU MAY HAVE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THIS PROVISION IN ITS ENTIRETY SO THAT YOU MAY BE INFORMED OF YOUR RIGHTS.
1. Terms. Customers, Users and Use of Services. These Terms apply to any and all IDE Orders Online Customers and users of IDE Orders Online’s Services, including but not limited to individuals, small and large businesses, and nonprofit organizations, who utilize the Services, as well as all others who access the Services, including but not limited to website or mobile application visitors and users of affiliate websites which allow access to IDE Orders Online including each user’s heirs, assigns and successors. If Customer uses the Services on behalf of a business entity, Customer represents and warrants that Customer has the authority to bind that entity, Customer’s acceptance of the Terms will be deemed an acceptance by that entity, and “Customer” herein shall refer to that entity.
2. Our Services – Description of IDE Orders Online’s Services. IDE Orders Online Service provides software for Customer use which plays the role of financial conduit between the sender (You) and the receiver (Stripe).
Stripe is a technology company that builds economic infrastructure for the internet. Businesses of every size from new startups to public companies use Stripe software to accept payments (and manage their businesses online, merchants (“Restaurant(s)”) to allow you, the Customer to pay for restaurant Orders (“Sales”) of food and beverages which are placed online.
IDE Orders Online’s Service provides the software allowing the Customer to send funds to Stripe which is then transmitted to the Restaurant to pay for Sales through the use of Stripe. Customers may use the Service to open an account with Stripe. Customers will be able to send funds to Restaurant if they have a linked bank account or credit card.
2.1 Ordering. IDE Orders Online interacts with the receiver, Stripe, and provides the Service to Customer in facilitating credit card and bank draft payment options to Stripe.
2.2. Delivery. IDE Orders Online does not offer delivery services. Restaurant may offer such services to Customer independent of IDE Orders Online.
2.3. IDE Orders Online’s License. IDE Orders Online’s Services and all content contained therein is owned and licensed by IDE Orders Online. IDE Orders Online retains sole control over IDE Orders Online’s Services and software, including the use of any materials.
3. Customer Acknowledgment. Customer hereby acknowledges and agrees that:
3.1. Services Provided. IDE Orders Online’s Services operates as a conduit (the Service) between the Customer and the receiver, Stripe. Stripe transmits funds received to Restaurant for the payment of Restaurant Sales.
IDE Orders Online’s Services do not include Restaurant services, Restaurant food or beverage preparation, Restaurant delivery, or any quality control over the food and beverages sold to Customer by Restaurant through the Stripe using the Service. Restaurant is solely responsible for providing food and beverages. Restaurant is solely responsible for ensuring that quality meets customer expectations and that safety standards in the preparation and service (if applicable) of said food and beverages and are met.
IDE Orders Online’s Services do not include maintenance, service, financial accounting, reimbursements, or any other financial affairs. The financial portion of the transaction is handled exclusively through Stripe which then transmits Customer funds to Restaurant. If any charges are made in error or otherwise unauthorized by Customer, Customer must contact Stripe or Restaurant.
Services provided by IDE Orders Online are limited to providing software for use by Customer, knowns as the Service, which allows Customer with a linked bank account or credit card to make payment through Stripe for food and beverage Sales Ordered from Restaurant.
3.2. Linked Bank Account or Credit Card. Customer understands, acknowledges, and agrees, that Customer may need to register an account with IDE Orders Online in order to utilize the Services, including access to Stipe to place Restaurant Orders. Customer understands, acknowledges, and agrees that once Customer links an account (“Eligible Account”), Customer will be able to make payment for Orders placed to Restaurant using Stripe. Note that Customer’s account or linked credit card will not be an “Eligible Account” until Customer has provided certain information to IDE Orders Online and the information provided has been verified. This includes, but is not limited to: verification of Customer identity, and verification of account or credit card. This means that until Customer has provided IDE Orders Online with this information, Customer will not be able to use Stripe to transmit funds to Restaurant.
3.3. Transfer. As a party initiating a transfer (“Sender”), Customer will send funds to Stripe, which are then forwarded by Stripe to the selected recipient Restaurant by designating the Restaurant and the transfer amount to Stripe (a “Payment Instruction”). IDE Orders Online’s Service cannot be used by Customer without Customer’s Payment Instruction.
3.4. Initiation of Payment. Customer understands and agrees that when Customer initiates a Payment Instruction using the Service, Customer funds will pass through Stripe to Restaurant. The Initiation of Payment terms can be found under Stripe terms and Conditions.
3.5. Liability. Customer acknowledges, understands, and agrees that IDE Orders Online shall incur no liability if Stripe is unable to complete any transaction because of: (i) insufficient funds in your Eligible Transaction Account or Eligible Credit Account; (ii) malfunction of the Service or Stripe due to circumstances beyond IDE Orders Online’s control or due to circumstances that Customer was already aware of at the time Customer initiated Payment Instruction; (iii) inaccurate or insufficient Payment Instructions; or (iv) failure of the Restaurant to claim Payment. Customer further acknowledges, understands, and agrees that IDE Orders Online is not responsible for any errors, omissions, or defects in transactions caused by Stripe. Customer further acknowledges, understands, and agrees that IDE Orders Online does not retain Customer funds, with the exception of the Fee, as described herein, and any overages, errors or unauthorized charges must be resolved between Customer and Stripe. Terms regarding Liability can be found under Stripe’s Terms and Conditions.
3.6. Confidentiality of Customer Account. Customer understands, acknowledges, and agrees that Customer is responsible for maintaining the confidentiality of Customer’s account, username, and password and for restricting access to Customer’s computer or devices. If there has been unauthorized use of Customer’s password or account, Customer must notify Stipe immediately. Customer is responsible for providing and maintaining current, complete, accurate and truthful information on Customer’s account. Customer agrees to accept responsibility for all activities that occur with Customer’s permission or authorization under Customer’s account, username and/or password. If Customer is accessing and using the Services on someone else’s behalf, Customer represents that Customer has the authority to bind that person as the principal to all Terms provided herein, and to the extent Customer does not have such authority, Customer agrees to be bound to these Terms and to accept liability for harm caused by any wrongful use of Stripe or the Services resulting from such access or use. IDE Orders Online reserves the right to refuse Service without prior notice if these Terms are violated or if IDE Orders Online decides, in its sole discretion, that it would be in its best interest to do so.
Therefore, Customer agrees to take steps to ensure that others do not gain access to its password and email account. Customer further agrees, acknowledges, and understands that any misuse of Customer’s account by an unauthorized user shall be the responsibility of Customer and that Customer shall pursue any said misuses, as appropriate, against the responsible party. Should any claims arise, IDE Orders Online agrees to assist Customer, as is practical and possible, in finding the source of the misuse, should that information be within IDE Orders Online’s possession. Customer agrees to provide IDE Orders Online notice in a commercially reasonable time, and to work with IDE Orders Online in good faith to resolve the issue.
4. Customer Obligations. Customer hereby grants to IDE Orders Online, for the term of this Agreement, a limited, non-exclusive, non-transferable, non-refundable, non-assignable right and license (“License”) to provide the Service to facilitate payment to Stripe as will be passed to the Restaurant for Customer Orders. IDE Orders Online may not grant any sub-licenses to the License.
4.1. Consent to Communications. Customer consents to receiving communications from IDE Orders Online, including phone calls, faxes, emails, SMS and MMS text messages, messages through electronic apps or platforms, and any other communications made by and on behalf of IDE Orders Online that may relate to IDE Orders Online’s Services, the Agreement, or Terms.
4.2. Use of Services. Customer may not use the Services in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
Customer agrees to only use the Service and any related documentation in a manner that complies with all applicable laws in the jurisdictions in which it uses the Service and documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. Customer shall not assign this Agreement, and any attempt by Licensee to assign it shall be void from the beginning.
4.3. Electronic Signature Agreement and Payment. Customer’s use of IDE Orders Online’s Services includes the ability to enter into agreements and/or to make purchases electronically. Customer acknowledges that Customer’s electronic submissions constitute Customer’s Agreement and intent to be bound by and to pay for such Agreements and purchases. Customer agrees to pay for any and all Services, Orders, or Sales purchased through Stripe. CUSTOMER IS RESPONSIBLE FOR PAYMENT OF ALL FEES AND FOR PROVIDING IDE Orders ONLINE WITH VALID ELIGIBLE ACCOUNT DETAILS FOR PAYMENT OF ANY SUCH FEES. All fees will be charged from the Eligible Account Customer has designated. If there is a change in Customer’s Eligible Account or status, Customer must change Customer’s Eligible Account information contained in Customer Account. IDE Orders Online may disable or terminate the Service if Customer fails to maintain an Eligible Account.
4.4. Fees: Stripe App; Taxes. In consideration for Customer’s right to use the Service, Customer shall pay a fee of $0.99 (the “Ordering Fee”) per Orders that Customer places. IDE Orders Online immediately collects the 99 cent Fee from Customer when Customer places an Orders and makes payment to Stripe. The 99 cent fee is transferred directly to IDE Orders Online. All other amounts paid by Customer, including but not limited to: charges for Sales, Taxes, Delivery, Service Charges, or other fees using the Service are Fee’s relating to Stripe and Restaurant and do not involve IDE Orders Online’s Service.
Customer understands that IDE Orders Online collects the 99 cent Fee as a convenience Fee pursuant to an independent agreement with IDE Orders Online and the Restaurant. By making payment to Stripe using the Service,
Customer also agrees to and accepts the 99 cent fee paid by him, her, it, or they.
4.5. Stripe and Fee’s Collected. IDE Orders Online’s Fees to Customer for the use of the Service, will post through Stripe. IDE Orders Online may change its Fee from time to time. Changes will take effect immediately for new all Customers. Customers with existing accounts will be notified of the Changes at least 3 (three) days (the “Notice Period”) prior to the Change taking place. Said Customers will continue with the price Customer originally agreed upon during the Notice Period. If, after the Notice Period, a Customer with an existing account does not opt out of IDE Orders Online’s Services, the Change in price will take effect as to that Customer at the time the Notice Period ends.
4.6. IDE Orders Online and Stripe Liability. Customer understands, acknowledges, and agrees that IDE Orders Online is NOT LIBABLE for transactions occurring through the use of Stripe.
4.7. Manner of Payment. The fees specified in paragraphs 3.3 and 3.4 are payable in United States dollars through Stripe. Fees paid by Customer are due and paid to IDE Orders Online at the time Customer places an Orders.
4.8. Alcohol. If Customer purchases alcohol from Restaurant using the Service and making payment through Stripe, Customer represents, warrants, and covenants, that it will abide by the applicable alcohol control laws in its jurisdiction. Customer acknowledges, agrees, and understands that IDE Orders Online does not monitor Orders placed using the Service and paid by Customer to Stripe. If Customer should use the Service in violation of the applicable alcohol control laws in its jurisdiction IDE Orders Online shall inure no responsibility resulting therefrom.
4.9. Liability. Customer understands, acknowledges, and agrees that IDE Orders Online will not be liable under any circumstances for any consequential, incidental, special, or exemplary damages arising out of or related to the aforementioned Terms and Conditions of this Agreement or arising out of or related to the use of IDE Orders Online’s Service, or through payment by Customer transmitted to Stripe. This includes, but is not limited to: lost income, profits, loss of use, or any claim based on indemnity or contribution.
5. Customer’s Representations and Warranties.
5.1. Warranties. Legal Right, Power, and Authority. Customer represents, warrants, and covenants that Customer has the full legal right, power, and authority to enter into and perform this Agreement.
5.2. Signatory Authority. Customer represents, warrants, and covenants that any individuals signing this Agreement, including by electronic signature, on their behalf are authorized to execute this Agreement.
5.3. No Violation of Law, Governmental Rule, Regulation, or Orders
Customer represents, warrants, and covenants that its execution, delivery and performance of this Agreement does not violate any law or governmental rule, regulation, or Orders applicable to Customer, and does not and will not contravene any provision, or constitute a default under, any indenture, mortgage, contract, or other instrument to which it is bound.
5.4. Indemnification. Customer shall indemnify, defend, and old harmless IDE Orders Online and its Affiliates and their directors, officers, employees, and agents and their respective successors, heirs and assigns (the “Indemnities”) against any liability, damage, loss, or expense (including reasonable attorney’s fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands, or judgments arising or resulting from Customer’s breach of this Agreement or Customer’s misuse of IDE Orders Online’s Services. IDE Orders Online shall provide notice to Customer of any such claim, suit, or proceeding. Customer will assume the defense of any cause of action so brought and handle any such claim or demand with attorneys of its selection, and reasonably acceptable to IDE Orders Online, provided that IDE Orders Online may use counsel of its choice at its own expense. Customer agrees not to settle or compromise any claim or consent to the entry of any judgment without the written consent of IDE Orders Online and IDE Orders Online will not unreasonably withhold its consent to the same. The provisions of this paragraph and Customers’ obligations hereunder shall survive the expiration or termination of this Agreement.
6. IDE Orders Online Representations and Warranties.
6.1. Warranties. Legal Right, Power, and Authority. IDE Orders Online represents, warrants, and covenants that it has the full legal right, power, and authority to enter into and perform this Agreement.
6.2. Authority to Perform. IDE Orders Online represents, warrants, and covenants that it has the requisite authority, permits and licenses to execute this Agreement and any other document, agreement, certificate or instrument necessary to consummate the transaction and perform its obligations hereunder.
6.3. No Violation of Law, Governmental Rule, Regulation, or Orders
IDE Orders Online represents, warrants, and covenants that (i) the performance of the Services by IDE Orders Online will not violate any proprietary rights of third parties including, without limitation, patents, copyrights or trade secrets, (ii) IDE Orders Online’s providing the Services to Customer will not violate any applicable law, rule, regulation or judicial Orders, or violate any contractual obligation or confidential relationship which IDE Orders Online may have to or with any third party, and (iii) any information IDE Orders Online may supply Customer or utilize with respect to performing the Services will have been obtained by IDE Orders Online lawfully.
6.4. Indemnification. IDE Orders Online shall indemnify, defend, and old harmless Customer and its respective successors, heirs and assigns (the “Indemnities”) against any liability, damage, loss, or expense (including reasonable attorney’s fees and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands, or judgments arising or resulting from IDE Orders Online’s breach of this Agreement. Customer shall provide notice within a commercially reasonable time to IDE Orders Online of any such claim, suit, or proceeding. IDE Orders Online will assume the defense of any cause of action so brought and handle any such claim or demand with attorneys of its selection, and reasonably acceptable to Customer, provided that Customer may use counsel of its choice at its own expense. IDE Orders Online agrees not to settle or compromise any claim or consent to the entry of any judgment without the written consent of Customer and Customer will not unreasonably withhold its consent to the same. The provisions of this paragraph and IDE Orders Onlines’ obligations hereunder shall survive the expiration or termination of this Agreement.
6.5. Limitation of Services Performed. The Services to be performed hereunder software Services for use of Stripe. IDE Orders Online does not warrant in any form the results or achievements of the Services provided under this Agreement. The Company only warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
6.6. DISCLAIMER OF WARRANTIES FOR SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5, (i) THE SERVICE AND THE DATA AND INFORMATION INCLUDED THEREIN IS PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, AND NEITHER IDE Orders ONLINE NOR ANY EXCHANGE OR INFORMATION PROVIDER OR SOFTWARE LICENSOR MAKES ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE SEQUENCE, ACCURACY, TRUTH, TIMELINESS OR COMPLETENESS OF THE SERVICE OR ANY QUOTATIONS FURNISHED HEREBY, MARKET INFORMATION OR OTHER INFORMATION OR DATA FURNISHED HEREUNDER; (ii) IDE Orders ONLINE MAKES NO WARRANTY, REPRESENTATION OR GUARANTY, EITHER FOR ITSELF OR FOR ANY THIRD PARTY VENDORS OR MANUFACTURERS REGARDING ANY EQUIPMENT (INCLUDING ANY IDE Orders ONLINE EQUIPMENT OR SUBSCRIBER EQUIPMENT); (iii) NEITHER THE IDE Orders ONLINE NOR ANY SOFTWARE LICENSOR MAKES ANY WARRANTY, REPRESENTATION OR GUARANTY THAT ANY SOFTWARE WILL MEET CUSTOMERS’ REQUIREMENTS OR THAT OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS CAN BE CORRECTED, AND (iv) IDE Orders ONLINE MAKES NO WARRANTY, REPRESENTATION OR GUARANTY, EITHER FOR ITSELF OR FOR ANY THIRD PARTY PROVIDER REGARDING ANY MAINTENANCE. THE WARRANTIES SET FORTH IN SECTION 5 ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED WITH RESPECT TO THE SERVICE, THE EQUIPMENT (INCLUDING ANY IDE Orders ONLINE EQUIPMENT AND CUSTOMER EQUIPMENT), ANY AND ALL SOFTWARE AND ANY MAINTENANCE. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY IDE Orders ONLINE, EACH INFORMATION PROVIDER AND OTHER THIRD PARTY SUPPLIER. No employee, salesperson, vendor or other agent or purported agent of the IDE Orders Online is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of IDE Orders Online.
7. Term and Termination
7.1. Effective Date and Termination. This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with Section 6. IDE Orders Online or Customer may terminate the Agreement for any reason, or no reason, by giving no less than three days (3 days) written notice to the other party. Notwithstanding the foregoing, IDE Orders Online, may suspend the Services or Customer’s access to IDE Orders Online’s Service, including Customer’s access to Stripe by use of IDE Orders Online’s Service at any time, and with no notice, if it believes Customer has breached the Agreement. Upon termination, IDE Orders Online will remove any and all of Customer’s information, if any, relating to Customer’s use of the Service.
7.2. Survival. The obligations of Customer will survive the termination of this Agreement. Said obligations include, but are not limited to: Indemnification;, Customer’s Warranties; Binding Arbitration; Class Action Waiver; Limitations of Liability, and Miscellaneous Provisions; and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement.
8. Binding Arbitration. In the event of a dispute between IDE Orders Online, and Customer, either party shall have the option to resolve the dispute by way of binding Arbitration. If this option is exercised, Arbitration will be the exclusive remedy available in resolving all disputes in any manner relating to or arising out of this Agreement between IDE Orders Online and Customer shall be resolved through binding arbitration, with a neutral arbitrator under the auspices of the American Arbitration Association, or such other arbitration association as specified by IDE Orders Online. This binding Arbitration shall be governed by the Federal Arbitration Act (“FAA”). IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. The decision of the neutral arbitrator will be final except for a limited right of appeal under the FAA. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Raleigh, North Carolina, unless otherwise agreed. A North Carolina court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
9. Class Action and Jury Waiver. Customer understands, acknowledges, and agrees that any claim or dispute in any arbitration or proceeding shall be brought on an individual basis only, and not as a class action or collective action, and there is no right or authority for any dispute or claim to be brought in a purported representative capacity on behalf of the general public or any other persons. Customer further understands, acknowledges and agrees that it has the right to seek legal counsel prior to entering into this Agreement. Additionally, regardless of any terms, conditions, or language used herein, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator.
10. Disclaimer. IDE Orders Online CANNOT GUARANTEE THE Service WILL BE AVAILABLE AT ALL TIMES. CUSTOMER AGREES AND UNDERSTANDS IDE Orders Online’s Services PROVIDED BY IDE Graphics Inc, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IDE Orders Online WILL NOT BE LIABLE TO CUSTOMER FOR DAMAGES RESULTING FROM THE FAILURE OF IDE Orders Online’s Services, RESTARUANT, OR STRIPE CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, IDE Orders Online DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, IDE Orders Online Service, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION DISCLAIMS ANY AND ALL STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IDE Orders Online WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO: LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, REGARDLESS OF WHETHER IDE Orders Online WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IDE Orders Online’s MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF ORDERING FEES EARNED BY IDE Orders Online FROM CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IDE Orders Online further DISCLAIMS ANY AND ALL EXPRESS WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
IDE Orders Online WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES, OR, OTHER THAN AS SET FORTH IN THIS AGREEMENT, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RESTAURANT ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF RISKS UPON IT (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.
12. Miscellaneous Provisions
12.1. The Parties. This Agreement does not create an agency, joint venture, partnership, or any other relationship other than that between IDE Orders Online and Customer as two independent parties to the Agreement. This Agreement is not intended to benefit any third party. A waiver of a breach of one or more of the terms of this Agreement does not constitute a waiver of any future or other breaches. The invalidity of any particular clause of this Agreement shall not affect the validity of any other particular clause, or of the Agreement as a whole.
12.2. Governing Law. Except for the Arbitration Agreement, which is governed by the FAA, this Agreement, and all terms and conditions herein, shall be construed according to the laws of the State of North Carolina without giving consideration to principles of conflict of laws. Any lawsuit regarding the services provided by IDE Orders Online or the Terms and Conditions of Services shall be filed in a court of competent jurisdiction in Wake County, North Carolina. IDE Orders Online and Customer further hereby submit to jurisdiction of and venue in the State of North Carolina in any legal proceeding necessary to interpret or enforce this Agreement or any part of this Agreement
12.3. Entire Agreement. This Agreement contains the entire, exclusive and complete Agreement between IDE Orders Online and Customer with respect to IDE Orders Online’s Services, and supersedes all previous or contemporaneous agreements, whether written or oral. In the event of any conflict between the Agreement and any other contract or agreement, the terms of the Agreement will control.
12.4. Right to Update Terms and Agreement. Customer agrees that IDE Orders Online has the right to amend, update and modify these Terms at any time in its sole discretion by posting updated Terms on IDE Orders Online’s website. The Agreement may not be amended by Customer.
12.5. Severability. If any provision of this Agreement is declared void or unenforceable, such provision shall be limited, or severed from this Agreement, to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect.
12.6. Exceptions. A party will be excused for any failure of or delay in the performance of its obligations under this Agreement for the period that such failure or delay is due to causes beyond its reasonable control and to the extent they act diligently to remedy the cause of the delay or failure where possible.
12.7. Undefined Terms
Terms that are not specifically defined in this Agreement are used as set forth in the State of North Carolina, Uniform Commercial Code.
13. Restrictions on Copying. Customer shall not copy the whole or any portion of the Technology provided by IDE Orders Online whether such Technology is in written, graphic, electronic or any other form under this Agreement.
14. Retention of Legal Rights. IDE Orders Online retains all rights and remedies with respect to the Confidential Information afforded it under the patent and other laws of the United States and the States both during and after the term of this Agreement, including without limitation any trade secret or other laws designed to protect proprietary or confidential information.
15. Restrictions on Information. Customer understands, acknowledges, and agrees that the confidential information of IDE Orders Online is within the sole ownership, dominion, and control of IDE Orders Online. Customer shall HAVE NO RIGHTS to demand, inspect, copy, or otherwise obtain; in any manner, the confidential information of IDE Orders Online. IDE Orders Online’s confidential information includes, but is not limited to: accounting of profits and or losses, customer lists, databases, billing and billing information, expenses, debts, accounts, accounts receivable, deposit accounts, chattel papers, promissory notes, property both tangible and intangible, general intangibles, inventory and equipment held, non-public asset information of IDE Orders Online, and all other financial and confidential information without limitation.
16. Technical Services.
16.1. “Service.” IDE Orders Online’s Service Agreement covering certain technical services furnished to Customers in connection with Customer’s purchase of Restaurant products, including: error correction, maintenance, further programming releases, and special options to receive available enhancements, as in effect from time to time. Nothing in this Agreement shall prevent IDE Orders Online from revising its standard form of Service Agreement in its discretion, from modifying or amending such form to meet the needs of any Customer, or from discontinuing its offering of any Products or services at any time.
17. No Creation of Ownership Rights. Nothing in this Agreement, nor any action taken by Customer, including, without limitation, any payment of monies by Customer to IDE Orders Online, shall be construed to convey to Customer any right, title or interest in IDE Orders Online’s Confidential Information, or any license to use, sell, exploit, copy or further develop in any way any Confidential Information. No license is hereby granted or implied under any patent, copyright or trademark, any application for any of the foregoing, or any trade name, trade secret, or other proprietary information, in which IDE Orders Online has any right, title or interest. Nothing in this Agreement requires the disclosure of any Confidential Information. Nothing in this Agreement requires IDE Orders Online to proceed with any transaction in connection with which the Confidential Information may be disclosed.
18. Counterparts. This Agreement may be authenticated in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
19.1. Notices to Customer. IDE Orders Online may send Customer a notice, communication, offer, request, consent, or reply (collectively referred to here as “Notice”) by sending an email message to the email address listed in Customer’s registration or contact information or by sending a letter via United States postal mail to the contact address listed in Customer’s registration or contact information. Notices shall become effective immediately.
19.2. Notices to IDE Orders Online. Any notice, communication, offer, acceptance, request, consent, reply, or advice (collectively referred to here as “Notice”), provided or permitted to be given, served, made, or accepted by IDE Orders Online, hereunder must be in writing, addressed to IDE Orders Online at the address set forth below on this Agreement, or such other address of which IDE Orders Online has notified Restaurant, in writing pursuant to the terms of this Section, and must be served: (1) by facsimile or another similar electronic method with a hard copy of such notice sent no later than the next business day as specified under (2) below; (2) by depositing the same in the United States mail, certified or registered mail, return receipt requested and postage-paid; or (3) by personal delivery. Notice shall be effective: (i) twenty-four (24) hours after being transmitted by facsimile or another similar electronic method, provided a hard copy is sent as specified in (1) above; (ii) seventy-two (72) hours following being properly mailed; or (iii) immediately upon personal delivery. Notice otherwise given is effective only if and when received. All notices to IDE Orders Online will be sent to the below unless otherwise provided by IDE Orders Online:
IDE Graphics Inc
4801 Glenwood Ave.
Raleigh, NC 27502
20.3. Notice to Existing Customers Regarding Terms. EXISTING CUSTOMERS, PLEASE TAKE NOTICE: Customers who had procured services with IDE Orders Online prior to this Agreement (“Existing Customers”) have the right to opt-out and not be bound by this Agreement by sending written notice to IDE Orders Online clearly indicating Existing Customer’s intent to opt-out of this Agreement and including the name, phone number, and email address associated with Existing Customer account—via email at: email@example.com
or U.S. Mail at:
IDE Graphics Inc
4801 Glenwood Ave.
Raleigh, NC 27502
Existing Customer opt-out notice must be sent to IDE Orders Online within 30 days of Existing Customer receiving notice of this Agreement. If Existing Customer opts-out of this Agreement within the 30-day period, it will not affect any other, previous Agreements that Customer may have with IDE Orders Online.
If Existing Customer does not opt-out of this Agreement within the 30-day period, Existing Customer and IDE Orders Online shall be bound by the terms of this Agreement in full. Further, if Existing Customer does not opt-out, the Existing Customer’s continued use of IDE Orders Online’s Service will confirm the Existing Customer’s acceptance of these Terms. If the Existing Customer does not agree to the Terms, the Existing Customer must stop using the Services and the Existing Customer account will be deleted.
20. Amendments. The terms, conditions, covenants, and other provisions of this Agreement may only be modified, amended, supplemented, or otherwise changed from time to time at any time by way of a written instrument, (including e-mail or similar electronic transmissions) that specifically purports to do so and references this Agreement and that is executed by duly authorized representatives IDE Orders Online.