Welcome to IDE Order Online owned by IDE Graphics INC! To use these services, you must agree to these Terms of Service (“Terms”) outlined below. These terms apply to the service relationship between IDE Order Online, its subsidiaries, and affiliates (collectively, and herein after “IDE Order Online”) and contain important legal disclosures that impact the relationship between IDE Order Online and the restaurant (“Restaurant”) signing up for IDE Order Online’s Platform and Services (as defined in these Terms). The terms constitute a contract (the “Agreement”) between IDE Order Online and Restaurant. Pursuant to Restaurants’ Agreement with the Terms, Restaurant may access and use IDE Order Online’s Platform and Services and related website, application, or software. The effective date (Effective Date”) of the Agreement is the date Restaurant signs up for IDE Order Online’s Platform and Services. Restaurant 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. Restaurant hereby agrees to these terms, and the following Terms and Conditions for the offer of your, its, or their products through IDE Order Online’s Platform 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. Our Services – Description of IDE Order Online’s Services and Platform. IDE Order Online agrees to allow customers to order food and beverages from Restaurant through IDE Order Online’s unique meal-ordering and billing website at: IDE Order Online; and its web-based mobile application (“IDE Order Online’s Platform”). IDE Order Online offers Restaurant Ordering Services, referred to as “Services”.
We will be responsible for all interaction with customers on our Web sites, including all ordering, billing, and customer support. We will also be responsible for the display of your products on our Web site.
1.1. Ordering. IDE Order Online places Restaurant on IDE Order Online’s Platform, allowing customers to access Restaurant and place orders through IDE Order Online. IDE Order Online then communicates the orders to Restaurant for customer pickup or by Restaurant’s in-house delivery services.
1.2. Delivery. At the present time, IDE Order Online does not offer delivery services. This Agreement may be amended at a future time to add delivery services if they become available. Restaurant will be notified of this amendment and its terms if and when applicable, and Restaurant will have the option continue using IDE’s services pursuant to IDE Order Online’s amended Terms of Service.
1.3. IDE Order Online’s Platform. IDE Order Online’s Platform and all content contained therein is owned and licensed by IDE Order Online. IDE Order Online retains sole control over IDE Order Online’s Platform, including the use of any materials, including but not limited to: menus, photographs, logs, and information provided by Restaurant (“Restaurant Data”). Restaurant grants IDE Order Online an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use the Restaurant Data on IDE Order Online’s Platform, and in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant for the duration of the Agreement. Restaurant consents to allow IDE Order Online to list Restaurant as a client of IDE Order Online and a user of IDE Order Online’s Platform without having to obtain any further consent from Restaurant. Restaurant owns all rights and interests in and to the Restaurant Data, subject to the license granted to IDE Order Online under the Agreement. IDE Order Online may, at any time and within its sole discretion, remove Restaurant Data from its Order Online Platform if it believes that such Restaurant Data: (i) may harm IDE Order Online or IDE Order Online’s Platform; (ii) it violates any applicable laws; (iii) or infringes upon any third-party rights.
2. Restaurant – Your Responsibilities, Duties, and Obligations. We ask you to do a few things for us:
2.1. Obligations. Restaurant represents, warrants, and covenants that it will timely and properly prepare all orders placed via IDE Order Online’s Platform consistent with the menu descriptions, photographs, or other content it has provided to IDE Order Online’s Platform. Restaurant further represents, warrants, and covenants, that the Products are of good quality and merchantable, and that it will comply with all applicable health and safety codes, and will prepare all orders received during its hours of operation. Restaurant represents, warrants, covenants, and agrees to provide up-to-date, accurate, and current menu(s) , hours of operation, address(es), pricing, and promotions, required for IDE Order Online to perform the Services. Restaurant represents, warrants, covenants, and agrees to provide IDE Order Online to provide a list of Products it would like IDE Order Online to place on our Platform. Restaurant may update the Product List from time to time as applicable. All Products on the Product List are subject to the following conditions:
(i) All listed Products must be legal for sale in the United States.
(ii) All listed Products must be generally available for sale, and not custom or limited availability unless otherwise noted on the Product List. You agree to notify us in writing thirty (30) days prior to the date you intend to discontinue the sale of any Product.
(iii) IDE Order Online has final say over what products are sold through its Platform.
2.2. Consent to Communications. Restaurant consents to receiving communications from IDE Order 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 Order Online that may relate to IDE Order Online’s Platform, IDE Order Online’s Services, the Agreement, or Terms.
2.3 Customer Privacy – Confidentiality of Data. Restaurant agrees to maintain the confidentiality of all non-public Customer Data it acquires through IDE Order Online’s Platform and IDE Order Online’s Services. “Customer Data” means customer information collected by IDE Order Online or Restaurant through IDE Order Online’s Platform or Services, including but not limited to: customer names, addresses, email addresses, phone numbers, payment information, credit cards, customer orders, and any other identifying or personal customer information. Restaurant will use Customer Data only to meet its obligations pursuant to the Agreement, and not for any other purpose. Restaurant will not engage in misappropriation of customer Customer Data. Misappropriation is defined as the disclosure, or use of Customer Data without express authority or consent by the customer to use said data. Restaurant will further use best practices to protect and secure Customer Data. Restaurant will notify IDE Order Online immediately in the event of a security breach of Customer Data or any reasonable suspicion thereof. Restaurant will assist IDE Oder Online concerning any remedial measures and notification to affected parties. In the event of termination of the Agreement, Restaurant agrees to maintain the confidentiality of Customer Data and the terms of the Agreement.
2.4. Customer Terms of Service. Restaurant agrees that the terms and conditions of this Agreement are confidential, and Restaurant will not share or disclose them to anyone other than those within Restaurant’s organization with a need-to-know or with Restaurant’s professional business, legal, or financial advisors. Under no condition will Restaurant disclose the terms of the Agreement to any third-party, including upon termination of the Agreement by either party.
3. Restaurant’s Representations and Warranties.
3.1. Warranties. Restaurant represents, warrants, and covenants that all Products and materials submitted to IDE Order Online’s Services will not infringe any proprietary or commercial right of any third party. Products and Materials include, but are not limited to: photographs, logos, and designs.
Restaurant further represents, warrants, and covenants that it will abide by all applicable federal, state, and local laws, rules, regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, privacy, promotions, intellectual property, food preparation, health and safety codes, labor laws, and unfair business practices.
Restaurant agrees to defend, indemnify and hold harmless IDE, IDE Order Online, and our officers, directors, agents and representatives from any and all claims, suits, actions, liabilities, damages, losses, penalties, or expenses, including attorneys’ fees, incurred by IDE, IDE Order Online by reason of any infringement or alleged infringement of any of the foregoing rights. Restaurant represents, warrants, and covenants, that it has sufficient power and authority to enter into this Agreement, and to meet its obligations of the Agreement, and to grant the licenses granted herein. Restaurant acknowledges, understands, and agrees, that it is responsible to determine whether the applicable laws of any state or other jurisdiction require Restaurant to collect, pay or remit a sales, use, transfer or other tax (‘Taxes’) with respect to or as a consequence of the marketing, sale or delivery of Restaurant’s products to a customer or customers who make or complete purchase through IDE Order Online, as applicable. If the applicable laws do require Restaurant to collect, pay or remit any such Taxes, Restaurant will pay the Taxes out of Restaurant’s proceeds. Restaurant further acknowledges that it will provide accurate tax rates and calculations to IDE Order Online; and it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. Restaurant should include an awareness of any such taxes in its determination of pricing.
3.2. Alcohol. If Restaurant includes alcohol in its menu on IDE Order Online’s Platform, Restaurant represents, warrants, and covenants, that it will abide by the applicable alcohol control laws in its jurisdiction, and when a customer places an order that includes alcohol, Restaurant will abide by said laws. This includes, but is not limited to: Restaurant checking customer ID’s at the time of delivery to confirm that customer is permitted to purchase and receive the alcohol, and that it maintains valid and active applicable licenses permitting for the sale and distribution of alcohol.
3.3 Liability. Restaurant understands, acknowledges, and agrees that IDE Order 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 Order Online’s Platform. This includes, but is not limited to: lost income, profits, loss of use, or any claim based on indemnity or contribution.
4. Indemnification. Restaurant shall indemnify, defend, and old harmless IDE Order 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 Indemnities or any one of them in connection with any claims, suits, actions, demands, or judgments arising or resulting from Restaurant’s breach of this Agreement or Restaurant’s misuse of IDE Order Online’s Platform or Services. IDE shall provide notice to Restaurant of any such claim, suit, or proceeding and agrees to assist Restaurant, at Restaurant’s expense in defending against any such claim, suit or proceeding. Restaurant 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 Order Online, provided that IDE Order Online may use counsel of its choice at its own expense. Restaurant agrees not to settle or compromise any claim or consent to the entry of any judgment without the written consent of IDE Order Online and IDE Order Online will not unreasonably withhold its consent to the same. The provisions of this paragraph and Restaurants’ obligations hereunder shall survive the expiration or termination of this Agreement.
5. Restaurant’s IDE Order Online Account. Restaurant is solely responsible for maintaining the confidentiality of its password and email account, all identification and security codes that control access to IDE Order Online’s Platform and Services, and all content and communications from said account, and for any and all statements made and acts or omissions that occur through the use of Restaurant’s password and email account, including any mail sent and any charges incurred. Therefore, Restaurant agrees to take steps to ensure that others do not gain access to its password and email account. Restaurant will promptly notify IDE Order Online of any misuse of Restaurant’s account by an unauthorized user. Restaurant agrees to provide notice in a commercially reasonable time, and to work with IDE Order Online in good faith to resolve the issue.
6. Compliance with Applicable Laws. This provision is a supplemental representation from Restaurant regarding compliance will all applicable laws and regulations as it goes about satisfying its obligations under the Agreement. In particular, Restaurant agrees under this provision, that it will comply with all applicable laws while using IDE Order Online’s Platform or Services. Restaurant further agrees that it will not violate the rights of any third-party, and will not damage, interfere with or disrupt IDE Order Online’s Platform or Services. In the event that IDEO Order Online determines, in its sole discretion, that Restaurant has violated this provision, IDE Order Online may suspend or terminate Restaurant’s account without notice to Restaurant. Restaurant agrees and consents to allow IDE Order Online to audit its use of the Services and IDE Order Online Platform to enforce this provision of the Agreement.
7. Fees: Clover Market App; Taxes.
7.1. Fees. In consideration for Restaurant’s right to use IDE Order Online’s Platform and IDE Order Online’s Services, Restaurant shall pay an agreed upon fee of $0.99 per each customer order placed using IDE Order Online’s Ordering Services (“Ordering Fee”). For Delivery Services, if applicable, Restaurant shall pay IDE Order Online’s Ordering Fee plus a commission service fee based upon the total charge for the customer order, not including any customer discounts, coupons, sales tax, or delivery fee charged by Restaurant. (“Delivery Commission”). IDE Order Online will charge the Ordering Fee on all orders placed through IDE Order Online’s Platform. IDE Order Online may, upon its sole discretion, amend the Ordering Fee or the Delivery Commission by providing Restaurant with written notice (3) days prior to the amendment taking effect. IDE Order Online will offer the Products to customers at the prices set by Restaurant in the Product List provided to IDE Order Online subject to any sales or other promotional price discounts.
7.2. Clover App Marketplace. IDE Order Online’s Ordering Fees, Delivery Commissions, prices, and other charges to Restaurant relating to IDE Order Online’s Platform, will post on the Clover App Market website. IDE Order Online may change the Ordering Fees, Delivery Commissions, prices or charges from time to time. Changes will take effect immediately for new all Restaurants. Restaurants with existing accounts will continue with the price it originally agreed upon. If a Restaurant with an existing account opts to change its pricing tier, the price in-effect at the time will be charged.
7.3. Manner of Payment. The fee specified in paragraph 7.1 and 7.2 are payable in United States dollars through Clover App Market’s website. Fees paid by Restaurant are due by the end of the month in concurrence with Restaurant’s accounting cycle, but in no event shall fees be paid any later than the last day of each month.
7.4. Taxes. For every order placed through IDE Order Online’s Platform, Restaurant will provide IDE Order Online accurate, current, and complete tax rates due and owing to any governmental authority, such as sales tax, VAT, and use taxes, applicable to all orders. Restaurant will report and pay all sales tax collected through IDE Order Online’s Platform to the applicable taxing authorities.
8. Term and Termination
8.1. Effective Date and Termination. This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with Section 8. IDE Order Online or Restaurant 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 Order Online, may suspend the Services or Restaurant’s access to IDE Order Online’s Platform at any time, and with no notice, if it believes Restaurant breaches the Agreement. Upon termination, IDE Order Online will remove Restaurant’s Products from its Platform. Restaurant and IDE Order Online agree to cooperate in fulfilling all orders placed prior to the effective termination date.
8.2. Duties Upon Termination. Upon termination of this Agreement, all Ordering Fees and Delivery Fees due to IDE Order Online shall be paid within thirty (30) days from the date of termination. All rights and licenses granted under this Agreement will cease upon notice of termination. Restaurant agrees to return any original documents belonging to IDE Order Online disclosing the technology used and any copies or portions thereof, in any form or media, along with any Hardware to IDE Order Online within thirty (30) days from the date of termination.
8.3. Survival. The obligations of Restaurant will survive the termination of this Agreement. Said obligations include, but are not limited to: Indemnification; Confidentiality of Data; Confidentiality of Agreement, Restaurant’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.
9. Binding Arbitration. In the event of a dispute between IDE Order Online, and or IDE Order Online’s Platform or the Services Provided by IDE Order Online and Restaurant, 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 Order Online, and/or IDE Order Online’s Platform, or the Services provided by IDE Order Online and Restaurant 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 Order 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.
10. Class Action and Jury Waiver. Restaurant 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. Restaurant 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.
11. Disclaimer. IDE Order Online CANNOT GUARANTEE THE IDE Order Online PLATFORM WILL BE AVAILABLE AT ALL TIMES. RESTAURANT AGREES AND UNDERSTANDS THE IDE Order Online PLATFORM, AND SERVICES PROVIDED BY IDE Graphics Inc, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IDE Order Online WILL NOT BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE IDE Order Online PLATFORM, SERVICES, OR RESTAURANT CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, IDE Order Online DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE IDE Order Online PLATFORM, THE SERVICES, 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.
12. Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IDE Order Online WILL NOT BE LIABLE TO RESTAURANT 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 Order Online WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IDE Order Online’s MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF ORDERING FEES AND DELIVERY COMMISSIONS EARNED BY IDE Order Online 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 Order Online further DISCLAIMS ANY AND ALL EXPRESS WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
IDE Order 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.
13. Miscellaneous Provisions
13.1. The Parties Are Independent Contractors. This Agreement does not create an agency, franchise, joint venture, partnership, or any other relationship other than that between IDE Order Online and Restaurant as two independent contractors. Furthermore, IDE Order Online and Restaurant are not joint employers of any individual. Neither party has authority of any kind to bind the other party in any respect whatsoever. The 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.
13.2. 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 Order Online or the Terms and Conditions of Services shall be filed in a court of competent jurisdiction in Wake County, North Carolina. Further, if at any time while in the scope of this Agreement, IDE Order Online should offer for use its Services or Platform to Restaurant in an international capacity, this Agreement, and all terms and conditions herein, shall nonetheless be construed according to the laws of the State of North Carolina without giving consideration to principles of conflict of laws. Restaurant understands, acknowledges and agrees, that the effect of the governance of law by the State of North Carolina in an international capacity is that The Convention/Contract for the International Sale of Goods WILL NOT APPLY. IDE Order Online and Restaurant 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
13.3. Entire Agreement. This Agreement contains the entire, exclusive and complete Agreement between IDE Order Online and Restaurant with respect to IDE Order Online’s Platform and IDE Order 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.
13.4. Right to Update Terms and Agreement. Restaurant agrees that IDE Order Online has the right to amend, update and modify these Terms at any time in its sole discretion by posting updated Terms on IDE Order Online’s Platform. The Agreement may not be amended by Restaurant unless such amendment is signed by an authorized representative of IDE Order Online.
13.5. Right to Monitor and Remove Unacceptable Sites
IDE Order Online has the right to monitor its Platform, and in its sole discretion to remove any content that IDE Order Online finds objectionable for any reason, without prior notice to Restaurant.
13.6. 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.
13.7. 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.
13.8. Assignment. This Agreement may not be assigned by Restaurant, or by operation of law to any other person, firm, or entity without the express written approval of IDE Order Online.
13.9. 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.
14. Agreement Confidential. The terms and conditions of this Agreement are confidential, and Restaurant is not to share them with anyone other than those within its organization with a need-to-know and its professional business, legal, or financial advisors.
14.1 Required Disclosures. In the event that Restaurant or any person to whom they or their representatives transmit or have transmitted Confidential Information become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information, Restaurant shall provide IDE Order Online with prompt written notice so that IDE Order Online may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that IDE Order Online is unable to obtain a protective order or other appropriate remedy, or if it so directs Restaurant, Restaurant shall furnish only that portion of the Confidential Information that Restaurant is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.
15. Trade Secrets.
15.1. Protection of Trade Secrets. The Technology used and received pursuant to this Agreement is a valuable trade secret of IDE Order Online and any information regarding the Technology acquired by Restaurant shall be maintained by Restaurant in the strictest confidence. Restaurant shall implement sufficient safeguards to protect the confidentiality of the trade secret in light of its own operating activities, including:
(i) Restaurant shall keep all documents and information supplied under this Agreement segregated in a retention area designated for such material.
(ii) Restaurant shall limit access to all Trade Secret material to those employees with a need to use such materials.
(iii) Restaurant will not permit any person to operate, maintain, or have access to the Trade Secret so that such person could receive information with respect to the Trade Secret without IDE Order Online’s prior written consent.
15.2. Restrictions on Copying. Restaurant shall not copy the whole or any portion of the Technology provided by IDE Order Online whether such Technology is in written, graphic, electronic or any other form under this Agreement.
15.3. Notice to IDE Order Online. Restaurant shall immediately notify IDE Order Online of any information about which it becomes aware that does or might indicate that there has been any loss of confidentiality of the Trade Secret. In such event, Restaurant shall take all steps within its power to limit the spread of such information, including taking whatever legal action is possible to terminate such dissemination.
15.4. Retention of Legal Rights. IDE Order 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.
16. Restrictions on Information. Restaurant understands, acknowledges, and agrees that the confidential information of IDE Order Online is within the sole ownership, dominion, and control of IDE Order Online. Restaurant shall HAVE NO RIGHTS to demand, inspect, copy, or otherwise obtain; in any manner, the confidential information of IDE Order Online. IDE Order 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 Order Online, and all other financial and confidential information without limitation.
17. End User License Agreement. Restaurant understands, acknowledges, and agrees that IDE Online Order is the owner of all U.S. and foreign copyrights and all other intellectual property rights pertaining to IDE Order Online’s Platform in this Agreement. Restaurant further acknowledges that it uses IDE Order Online’s Platform to offer Restaurant’s food and beverages to Customers pursuant to the terms of IDE Order Online’s “Product License”. Restaurant desires to obtain Marketing Assistance from IDE Order Online to promote the offering of Restaurant’s food and beverages. Restaurant further desires for IDE Order Online to offer its products, as “End-Users” following the execution of a Product Lease, certain “Services” relating to the use of the Products, including installation, assistance, training, data entry and conversion, and custom program modification. IDE Order Online desires to provide such Marketing Assistance to Restaurant for use by its Customers, and to offer such Services to End-Users of the Products. Restaurant desires to market Restaurant’s food and beverage items using IDE Order Online’s Services under the terms of this Agreement. .
17.1. Binding effect of the End User Licensing Agreement. The parties hereto, intend to be legally bound, and hereby agree as follows:
(a) DEFINITIONS When used in this Agreement, the definitions set forth in this Article shall apply to the respective capitalized terms:
(i) “ Products.” Programs and equipment that supplement the Products and are offered directly to End-Users for its use, by IDE Order Online marketer, including IDE Order Online’s Platform to include its Mobile App, any other program or equipment that may be approved from time to time by IDE Order Online for offering as part of Marketing Assistance.
(ii) “Services.” Installation services, training and instruction, data entry and conversion, program modification, and error correction, all relating to the Products and to be performed by IDE Order Online.
(iii) “End-Users.” A person or entity that has licensed a Product pursuant to a Product License.
(iv)“Marketing Assistance.” Performance by IDE Order Online of the following functions:
a. Providing the Platform and Mobile application for use by Restaurant to offer its food and beverages to Customers;
b. At its sole discretion, IDE Order Online may plan, prepare, and conduct demonstrations of its Platform and Mobile Application for the benefit of Restaurant for use by its Customers and other preliminary marketing contracts
17.2. “Product License.” The standard version of Restaurant’s End-User License Agreement covering each Product, as in effect from time to time, and the current version of the same. Nothing in this Agreement shall prevent IDE Order Online from revising its standard from of Product License in its discretion, from modifying or amending such form to meet the needs of any End-User, or from discontinuing its offering of any Products or services at any time.
17.3. “Product(s).” Program materials of IDE Order Online consisting of IDE Order Online’s Platform and Mobile Application(s) in object code form and related user documentation.
17.4. “Service Agreement.” IDE Order Online’s Service Agreement covering certain technical services furnished to End-Users in connection with 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 Order Online from revising its standard form of Service Agreement in its discretion, from modifying or amending such form to meet the needs of any End-User, or from discontinuing its offering of any Products or services at any time.
17.5. Authorization to Market to Customers. Restaurant hereby authorizes IDE Order Online to provide Marketing to Customers and to offer and provide Services and Products to End-Users, all in connection with the offering and license of Restaurant’s food and beverages and ancillary to the Product License subject to territorial limitations.
17.6 OBLIGATIONS OF IDE Order Online. Subject to the terms and conditions of this Agreement, IDE Order Online shall undertake the following obligations:
(i) Provide, at its sole discretion when necessary, training sessions relating to the Products for employees of IDE Order Online.
(ii) Provide Restaurant with a description of the Products, to be used solely for marketing, demonstration, and training. Except as otherwise provided in this Agreement, all Products furnished to Restaurant, including all programs and documentation, shall be subject to the terms of the Product License.
(iii) It is agreed that IDE Order Online in the performance of its Services for End-Users that obtain the Products from Restaurant under the Product License, is hereby licensed and authorized to exercise, on behalf of the End-Users, the rights of the End-Users under the Product License to make modifications to the Products.
17.7. OBLIGATIONS OF Restaurant. Subject to the terms and conditions of this Agreement, Restaurant shall undertake the following obligations.
(i) Employ and schedule for training relating to the Products, and maintain a trained work force.
(ii) Offer and provide Services to all End–Users of IDE Order Online.
(iii) Contract directly with End-Users for Services and collect any fees and charges assessed against End-Users directly from them.
(iv) Offer, as appropriate, Products to End-Users.
17.8. INDEMNITIES. Restaurant shall defend, indemnify, and hold harmless IDE Order Online from and against any claims by Customers or End-Users relating to (1) the Products’ failure to perform in accordance with the Specifications, or (2) a breach by Restaurant of the Product License [and/or the Service Agreement]. Restaurant shall defend, indemnify, and hold harmless IDE Order Online from and against any claims relating to (1) the Marketing, Services, or Products offered or provided by IDE Order Online, its agents, or its employees; or (2) any statements, actions, or services of IDE Order Online not expressly authorized by this Agreement.
17.9. TERM AND TERMINATION. This Agreement shall become effective on , the date entered into, and shall continue until effective termination by either party. Either party may terminate this Agreement at any time, without cause, upon at least thirty (30) days’ prior written notice to the other party. In the event of termination, the parties shall work together to complete all Customer orders prior to the termination taking effect. IDE Order Online may terminate this Agreement at any time, which shall be immediately effective, in the event that Restaurant breaches its obligation under this Agreement in any material respect. Termination for cause shall relieve IDE Order Online of the obligation of continued performance under this Agreement, but shall not affect any existing obligations under contractual arrangements with Customers and End-Users. To avoid future problems, Restaurant must understand, acknowledge, and agree that, notwithstanding these cooperative efforts, each party is acting independently. Specifically, IDE Order Online’s obligations and responsibilities regarding the Products, and Restaurants obligations to IDE Order Online, including payment for the use of its Products, and Services the Agreement. Restaurant understands, acknowledges, and agrees that IDE Order Online is not responsible for any performance by Restaurant.
18. No Creation of Ownership Rights. Nothing in this Agreement, nor any action taken by Restaurant, including, without limitation, any payment of monies by Restaurant to IDE Order Online, during any discussions prior to the consummation of the proposed acquisition or other business Agreement shall be construed to convey to Restaurant any right, title or interest in the 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 Order Online has any right, title or interest. Nothing in this Agreement requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at IDE Order Online’s option. Nothing in this Agreement requires IDE Order Online to proceed with any transaction in connection with which the Confidential Information may be disclosed.
19. 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.
20. Notices. 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 Order Online, hereunder must be in writing, addressed to IDE Order Online at the address set forth below on this Agreement, or such other address of which IDE Order Online has notified Restaurant, in writing pursuant to the terms of this Section, and must be served: (1) by facsimile or other 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 other 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 Order Online will be sent to the below, unless otherwise provided by IDE Order Online:
IDE Graphics Inc
4801 Glenwood Ave.
Raleigh, NC 27502