PLEASE SCROLL DOWN AND CAREFULLY READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AND SERVICES AGREEMENT. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS WITH REGARD TO THE CERTISTAR MENUSTAR APP PROGRAM. IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE MENUSTAR APP PROGRAM.
RECITALS
A. All references herein to “this Agreement” mean this License and Services Agreement, as the same may be amended from time to time. All references herein to “CertiStar” mean CertiStar, Inc., a Delaware corporation. All references herein to “User” mean the person or entity that is entering into this Agreement with CertiStar through the submission by such User of a subscription or promo code (collectively a “Subscription Application”) which shall be deemed to incorporate this Agreement by reference.
B. CertiStar owns and operates MenuStar, a web-based tool that provides restaurants and other food service companies with sources of information regarding compliance with governmental regulations pertaining to the disclosure of the nutritional value of the food and beverages services available to the customers of such entities. MenuStar also provides unique safety and allergy product and service information needed to better serve customers that have food allergies and offers on-going technical and administrative support for Users and services to assist Users in the training of personnel and implementation and updating of the MenuStar application for the User’s facilities .
C. User desires to use the MenuStar app in its operation in accordance with the terms and condition of this Agreement and CertiStar agrees to provide access to this app in accordance with such terms.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement agree as follows:
1. RIGHTS AND OBLIGATIONS OF USER.
(a) License. CertiStar hereby grants to User, and User accepts, a limited, non-transferable, non-exclusive, revocable license to use the MenuStar App and the results of its use solely for assisting patrons of User’s facilities identified in the Subscription Application (the “Facilities”) and in accordance with the terms of this Agreement. User shall not have the right to use the MenuStar App for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works. User further agrees not to decompile, reverse engineer, disassemble, decrypt or otherwise attempt to misappropriate the intellectual property imbedded in any portion of the MenuStar App, and agrees not to rent, sell, lease, sublicense, assign, distribute or otherwise transfer any rights to use or receive any resources included in the MenuStar App.
CertiStar retains ownership of the MenuStar App, and the services, materials, trademarks, copyright and other information provided in connection therewith and, except as expressly set forth herein, no other rights or licenses are granted or to be implied with respect to any CertiStar intellectual property. All CertiStar trademarks, service marks, trade names, logos, domain names, and any other features of the MenuStar App are the sole property of CertiStar or its licensors.
Third party software (for example, open source software libraries) included in the MenuStar App services are licensed to User either under this Agreement or under the relevant third party software library’s license terms as published on CertiStar’s website.
(b) User Support. CertiStar provides the following Technical and Administrative Assistance and offers optional Menu and Inventory Input Support and Personnel Training:
(i) Technical and Administrative Assistance. – For User assistance with technical program performance issues and account- and payment-related questions (“Customer Queries”), please submit a ticket to CertiStar’s Customer Service department using the Customer Service contact form on the About Us section of CertiStar’s website. CertiStar will use reasonable endeavors to respond to all Customer Queries within a reasonable time frame, but makes no guarantees or warranties of any kind that any Customer Queries will be responded to within any particular time frame and/or that CertiStar will be able to satisfactorily resolve or answer any such queries.
(ii) Menu and Inventory Input Support. – CertiStar offers support services for Users needing help in entering necessary data in loading the Menu App with the applicable menu items and underlying ingredient and related details. CertiStar may, at its sole discretion, also offer other support services as may be agreed by the parties. Such services would be in addition to the web based tutorials that are available to Users and such standard optional services set forth the Subscription Application (collectively, “Support Services”).
(iii) User Personnel Training. – CertiStar offers training programs for all levels of Users’ personnel. The standard training programs being offered are set forth in the Subscription Application. Other training programs may, at CertiStar’s sole discretion, also be offered as may be agreed to by the parties (collectively, Training Services”).
User acknowledges and agrees that: (i) User is solely responsible for the accuracy and completeness of the services identified in this SubSection (b) above provided by CertiStar or its agents or subcontractors; and (ii) User’s responsibilities, indemnifications and disclaimers of warranties and CertiStar’s disclaimers set forth in Sections 2, 4 and 5 below shall apply to any and all such services.
(c) Limitations and Confidentiality. User understands and agrees that participation in the MenuStar App is voluntary and does not create a legal partnership or agency relationship between User and CertiStar, nor does such participation obligate CertiStar to provide User with any services or materials other than those specifically agreed to under the terms of this Agreement. User agrees that it will grant access to the MenuStar App only to those employees, contractors and agents who are legally bound to observe the confidentiality and use restrictions imposed by this Agreement and who need the MenuStar App for use at the Facilities in aiding patrons seeking allergy related menu choices. Unless otherwise permitted by CertiStar in writing, User shall not share or transfer any services, information or materials User receives from CertiStar in connection with being a MenuStar App participant. The ID and password User uses to log in as a MenuStar App participant shall not be shared with any other person or entity. User is responsible for maintaining the confidentiality of its ID and password, as well as for any activity in connection with User’s account. User is responsible for any damages caused by the violation of any of the use, disclosure and related obligations owed to CertiStar hereunder or any other CertiStar agreements caused by any of User’s employees, contractors or agents.
(d) Use and Disclosure of Information to Patrons. User is permitted to disclose to its patrons in the Facilities the results from the MenuStar App based upon information received from such patrons, provided that such patrons are informed as to the limitations of the results and the need for such patrons to exercise proper safeguards associated with the potential inadvertent ingestion of or exposure to allergy laden foods.
(e) License Fees. In consideration of the grant of the license to User as provided herein, User agrees to pay the fees set forth in the Subscription Application (as may be modified from time to time) during the term of this Agreement.
(f) Term of the Agreement. This Agreement shall continue so long as User continues to timely pay the fees set forth in the Subscription Application or until User receives a notice of termination from CertiStar as provided for under Section 3 below.
(g) Modifications. CertiStar may modify the terms and conditions of this Agreement and/or the MenuStar App or services provide by CertiStar at any time and from time to time by publishing the new terms and conditions on the CertiStar web page. Additionally, User agrees to promptly implement any modifications and changes that CertiStar may make to the MenuStar App or related services during the term of this Agreement. User understands that these modifications and changes may be incompatible with previous modifications and could include substantial changes to the MenuStar App or related CertiStar services.
2. USER RESPONSIBILITIES REGARDING ACCURACY AND NOTIFICATION OF CERTISTAR’S DISCLAIMERS AND USER AND ITS CUSTOMERS RESPONSIBILITIES
a. Input of Information. User understands and agrees that it is User’s sole responsibility to accurately input and continue to update the ingredients, food contact surfaces, kitchen equipment and other information and activities called for under the MenuStar App and related services. CertiStar does not independently verify or otherwise attest to or assume responsibility for the accuracy or completeness of any such information or activities.
b. Preparation. Relying solely on the information contained in the MenuStar App and verified by User or User’s customers, the MenuStar App makes recommendations on (i) which food items are acceptable to eat given the inputted food allergies; and (ii) modifications to the recipe and/or food preparation alterations to certain recipes to accommodate the inputted food allergies. User understands and agrees that it is User’s sole responsibility to accurately prepare each food item as expressly suggested by the MenuStar App, including using the ingredients, food contact surfaces and kitchen equipment that are appropriate for each of the inputted food allergies.
c. Posting of CertiStar Plaque. User agrees to place and maintain in a conspicuous public place of each of its food serve facilities a CertiStar provided plaque that includes the responsibilities of the User and its customers in using the MenuStar App.
3. TERMINATION. CertiStar reserves the right to revoke User’s license and participation in the MenuStar App at any time for any or no reason, and this Agreement may be terminated at any time, with or without cause, by either party upon written notice. In the event that CertiStar revokes the license without cause, a pro-rated portion of any prepaid license fees will be refunded to User. If this Agreement is terminated, User shall immediately cease use of the MenuStar App. Within seven days of termination, or earlier if requested by CertiStar, User will return, cease all use of, and/or destroy all Confidential Information (as defined below) in its possession or control. Following termination of this Agreement, the restrictions and obligations set forth in Sections 1 and 4 through 8 shall continue to be applicable to User and its employees, contractors and agents
4. DISCLAIMER OF WARRANTY. CERTISTAR ENDEAVORS TO PROVIDE THE BEST SERVICE IT CAN, BUT USER UNDERSTANDS AND AGREES THAT THE MENUSTAR APP (INCLUDING ANY SOFTWARE, IF ANY, AND DOCUMENTATION) AND RELATED SERVICES ARE PROVIDED HEREUNDER “AS IS.” CERTISTAR MAKES, AND USER HAS RECEIVED, NO WARRANTIES IN CONNECTION WITH THE MENUSTAR APP OR MODIFICATIONS OR IMPROVEMENTS THERETO AND RELATED SERVICES, EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION BETWEEN CERTISTAR AND USER. CERTISTAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. User shall indemnify, defend and hold CertiStar harmless from and against any actual out-of-pocket costs, damages or expenses, including reasonable attorney’s fees, incurred by CertiStar that directly or indirectly relate to a claim, suit or proceeding brought against CertiStar as a result of the use by User or its customers of the MenuStar App or services related thereto.
5. DISCLAIMER OF LIABILITY. USER ASSUMES ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION OR USE OF THE MENUSTAR APP AND RELATED SERVICES, INCLUDING, WITHOUT LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE MENUSTAR APP ON USER’S COMPUTER, DEVICES AND/OR PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA, AND, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL CERTISTAR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE MENUSTAR APP, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR CERTISTAR’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF CERTISTAR HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, CERTISTAR’S TOTAL LIABILITY TO USER FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
6. CONFIDENTIAL INFORMATION.
(a) Definition. Services, materials and information associated with the MenuStar App (including its nature and existence, features, functionality and screen shots), and any other information disclosed by CertiStar to User in connection with the MenuStar App and related services (including third party intellectual property provided through CertiStar) are considered and referred to in this Agreement as “Confidential Information.” Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of User, (b) is generally made available to the public by CertiStar, (c) is independently developed by User without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to User without limitation, or (e) is third party proprietary information provided to User by CertiStar and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such information, will not be considered Confidential Information under this Agreement. All Confidential Information shall remain the sole property of CertiStar, and User shall have no implied licenses or other rights in such Confidential Information except as otherwise expressly set forth in this Agreement.
(b) Restrictions. Except as expressly permitted in this Section, User agrees that it will not, and will cause its employees, contractors and agents to not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than as otherwise permitted under this Agreement or as otherwise expressly permitted or agreed to in writing by CertiStar. User further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of Confidential Information, including preventing access to or display of the services or materials provided under the MenuStar Apps Program to third parties. User agrees that the MenuStar App services and materials and other Confidential Information will only be used for implementation and use in the locations identified in the Subscription Application and that User will not and will cause its employees, contractors and agent not to transfer or export any product, process or service that is a derivative of the MenuStar App. User hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to CertiStar that may be difficult to ascertain. Accordingly, User agrees that CertiStar will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have and to do so without having to post a bond or other security.
(c) Discussion Forums. User may have the opportunity to participate in discussion forums moderated by CertiStar about the MenuStar App services and materials and other Confidential Information that CertiStar may make available to User. Notwithstanding anything in this Agreement to the contrary, for purposes of such discussion forums User and other participants may discuss Confidential Information generated and/or received by User and the other participants, provided that all such discussions shall also be deemed Confidential Information for purposes of this Agreement. Except for the above described limited purpose, User acknowledges and agrees that this Agreement does not grant User or its employees, contractors or agents the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Confidential Information.
7. CONSENT TO COLLECTION AND USE OF DATA. In order to test and help CertiStar, its partners, and third party developers improve their products and services, and unless User opts out in a manner designated by CertiStar, User acknowledges that CertiStar and its employees, independent contractors and other agents will be collecting, using, storing, processing and analyzing diagnostic, technical, and usage logs and information from User’s computers that are running as part of the MenuStar App. Such information will be collected in a form that does not personally identify User and may include, but is not limited to, general diagnostic and usage data used in interfacing with the MenuStar App, and, if location services are enabled, the real-time geographic location of User’s computer and location search queries. Further, User agrees that CertiStar may share such diagnostic, technical and usage logs and information with partners and third party developers for purposes of allowing them to improve their products and services that operate on or in connection with CertiStar-branded products.
8. MISCELLANEOUS.
(a) Governing Law; Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of Arizona, without regard to its choice of law rules and without regard to conflicts of laws principles. The parties agree to submit themselves to the exclusive jurisdiction of the federal and state courts in Arizona for the enforcement, interpretation and construction of this Agreement and all other matters regarding or relating thereto. This Agreement is void where prohibited by law, and the right to become a MenuStar App participant is not granted in such jurisdictions.
(b) No Export. User shall not export out of the United States any Confidential Information or any product, material, process or service that is related to the MenuStar App.
(c) Third Party Software and Information. Portions of the MenuStar App may include third party proprietary material. Acknowledgements, licensing terms and disclaimers for such material are contained in the applicable terms of service or use, and User’s use of such material is governed by such terms. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to MenuStar App participants is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and CertiStar shall have no responsibility with regard to the selection, performance or use of these vendors or products. All understandings, agreements or warranties regarding such third party software, if any, take place directly between the vendors and the prospective users.
(d) No Waiver; No Assignment. No waiver of any provision of this Agreement shall be effective unless set forth in writing signed by the party making such waiver, and any such waiver shall be effective only to the extent set forth therein. Failure by a party hereto to insist upon full and prompt performance of any provisions of this Agreement, or to take action in the event of any breach of any such provision, shall not constitute a waiver of any rights of such party, and such party may at any time thereafter exercise all available rights and remedies with respect to such breach. This Agreement may not be assigned by User in whole or in part, and any attempted assignment without the prior written consent of CertiStar shall be null and void.
(e) Entire Agreement. This Agreement, together with any other CertiStar agreements governing services or products used in conjunction with MenuStar App constitute the complete and entire agreement between the parties and supersede any prior written or oral agreements or understandings with respect to the subject matter hereof and thereof. Each party is acting without reliance on any representations or warranties made by the other party, except representations or warranties expressly set forth herein and therein.
(f) Prevailing Party. If any adversarial proceeding between the parties arises out of this Agreement or the matters referred to herein, the prevailing party shall be entitled to recover from the other party, in addition to any other relief awarded, all costs and expenses incurred by the prevailing party in such proceeding, including all reasonable attorneys’ fees, disbursements and expenses (including those incurred in the course of any appeal), and all experts’ fees and expenses.
(g) Severability. If any provision of this Agreement is deemed to be invalid by reason of the operation of law, or by reason of the interpretation placed thereon by any administrative agency or any court, the parties shall negotiate an equitable adjustment in such provision in order to effect the purpose of this Agreement to the maximum extent permitted by law, and the validity and enforceability of the remaining provisions hereof shall not be affected thereby and shall remain in full force and effect.
(h) Translation. In the event of a material inconsistency between the provisions of an English and non-English version of this Agreement, the English version shall govern.
