SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (the "MENU HERO® Service Agreement"), effective as of 10/20/2021 (the "Effective Date"), is by and between themenuhero.com, a Delaware Corporation, with offices located at 2445 Ocean Avenue, San Francisco, CA 94127 ("Provider") and , a with property located at ("Customer") (each a "Party" and collectively known as the "Parties" who have entered into this Agreement).
WHEREAS, Provider provides access to its software-as-a-service offerings to its customers;
WHEREAS, Customer desires to access certain software-as-a-service offerings described herein, and Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
In addition to terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement, unless a contrary definition appears elsewhere in this Agreement:
“Provider�? means themenuhero.com, which can be reached at firstname.lastname@example.org or such other address as set out in this Agreement.
“Customer�? means MENU HERO®, which can be reached at any such or other address as set out in this Agreement.
"Customer Service" means the customer service desk of themenuhero.com, which can be reached at email@example.com or such other address as set out in this Agreement.
"Effective Date" means the date this Agreement is signed by the MENU HERO®.
"Extranet" means the online Digital Marketing System (DMS) which can be accessed by the MENU HERO® upon user-authentication at my.themenuhero.com to manage inventory, (rates), upload images, update property information, and access and/or modify reservations.
"Guest" means a person who has booked accommodations at the INN through the Website.
"INN" means a place to stay, including, but not limited to the following lodging accommodations and/or dining facilities: motels, hotels, lodges, inns, bed and breakfasts, RV Parks, cabins, apartments, houses, or vacation rental properties and restaurants, bars, taverns, tap rooms, or wineries.
"MENU HERO®" means the INN’s owner, whether an individual or a business entity, on-site manager, or agent responsible for the day-to-day operations of the INN.
"Intellectual Property Right" means any patent, copyright, inventions, database rights, design right, registered design, trade mark, trade name, brand, logos, service mark, know-how, utility model, unregistered design or, where relevant, any application for any such right, know-how, trade or business name, domain name or other similar right or obligation whether registered or unregistered or other industrial or intellectual property right subsisting in any territory or jurisdiction in the world.
"Marketing Engagement" means the product and services also known as ‘iSuite’ offered by themenuhero.com to the MENU HERO® solely for the Internet and social media marketing, design, and hosting of their website and not including themenuhero.com’s Reservation Service.
"Reservation Service" means the online reservation system of themenuhero.com through which MENU HERO®s can make their rooms available for reservation, and through which Guests can book reservations at an INN for overnight accommodations with such service provided on both themenuhero.com and Standalone Websites Powered by MENU HERO®.
"Standalone Website (Powered by MENU HERO®)" means an INN’s website which is hosted and managed by themenuhero.com’s online Content and Digital Marketing System and may be supported by the themenuhero.com Reservation Service or themenuhero.com ADA Tray® Widget or themenuhero.com Dedicated Email Hosting.
"Third Party (Transaction) Site" refers to a third-party website (i.e. Franchise, Online Travel Agent (OTA), Central Reservation System (CRS), or other booking enabled website) where MENU HERO®s can make their rooms available for reservation, and through which Guests can book reservations at INN for overnight accommodations.
"Website" means themenuhero.com.
"Websites" means the website(s) of themenuhero.com and its affiliated companies and business partners on which the product and service of themenuhero.com are available including any Standalone Website that is Powered by MENU HERO®.
"Software Product" means any Software or Software that is provided by themenuhero.com to the MENU HERO® or utilized in connection with its Software-as-a-Service offerings to its customers.
2. MENU HERO® OBLIGATIONS
2.1 INN Information
2.1.1 MENU HERO® represents and warrants with respect to all images provided by MENU HERO® to themenuhero.com, that MENU HERO® has either:
(i) Produced the photograph(s) and has full ownership of the images;
(ii) Purchased the image(s) and has proof of purchase;
(iii) Licensed the image(s) and has full authorization of use and proof of license;
(iv) Obtained signed written permission from the owner of the photograph(s) to use the image(s) for commercial purposes, including third party usage; and
(v) If models were used in the photograph(s), MENU HERO® has acquired a signed and dated copy of the ‘Model’s Release’ for the photographs.
2.1.2 Information provided by the MENU HERO® for inclusion on the Websites shall include information relating to the INN (including pictures and descriptions), its amenities and services, and the rooms available for reservation, details of the rates (including all applicable taxes, levies, surcharges and fees) and availability, cancellation and no-show policies and other policies and restrictions (the "INN Information") and shall comply with formats and standards provided by themenuhero.com. themenuhero.com reserves the right to edit or exclude any information on becoming aware that it is incorrect or incomplete or in violation of the terms and conditions of this Agreement.
2.1.3 The MENU HERO® represents and covenants that the INN Information shall at all times be true, accurate and not misleading. The MENU HERO® is at all times responsible for maintaining correct INN Information, and notifying themenuhero.com of any extraordinary, materially adverse events (e.g. renovation or construction at or near the facility) which may affect the INN’s ability to honor a reservation.
2.1.4 The information provided by the MENU HERO® for the Websites shall remain the exclusive property of the INN. Information provided by the MENU HERO® may be edited or modified by themenuhero.com and subsequently be translated into other languages. The translations shall remain the exclusive property of themenuhero.com. The edited and translated content shall be for the exclusive use by themenuhero.com on the Websites and shall not be used by the MENU HERO® for use on any other website or distribution channel.
2.1.5 Unless themenuhero.com agrees otherwise, all changes, updates and/or amendments of the INN Information (including rates, availability, rooms) shall be made by the MENU HERO® directly and on-line through the Extranet or such other ways as themenuhero.com may reasonably indicate. Updates to pictures, and descriptions shall be processed by themenuhero.com as soon as practicable.
2.1.6 When MENU HERO® gives themenuhero.com content, MENU HERO® grant themenuhero.com a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) MENU HERO® has in the content, in any media known now or in the future, not limited to establishing social media or other Internet application accounts on behalf of the MENU HERO®.
2.2 Guest Reservations and Complaints
2.2.1 The INN shall receive a fax and/or email confirmation for every booking made by a Guest via their selected third party booking engine in accordance to the rules defined by MENU HERO® and third-party. themenuhero.com is not responsible for the accuracy and completeness of Guest’s information, including, but not limited to, credit card details. themenuhero.com is not responsible to the INN for payment of charges associated with a reservation in the event the credit card provided by Guest declines.
2.2.2 By making a reservation through the Website, a direct contract, and therefore legal relationship, is created solely between the INN and the Guest with respect to the reservation.
2.2.3 The INN is bound to accept a Guest as a contractual party, and to process the online reservation in compliance with the INN Information contained on the Website at the time the reservation was made, including any supplementary information and/or wishes made known by the Guest.
2.2.4 Complaints and legal claims regarding the products or services offered, rendered or provided by the INN or specific requests made by Guests are the sole responsibility of the INN. themenuhero.com shall not be responsible for mediating such complaints and/or legal claims. themenuhero.com is not responsible for and disclaims any liability with respect to such claims from a Guest. themenuhero.com may at its sole discretion offer customer support services to a Guest or act as an intermediary between an INN and a Guest or otherwise assist a Guest in its communication with or actions against the INN.
2.3 Securitization of Credit Card Data for Reservation Service
Each INN is required to comply with, and to have its sub-servicers comply with, on an ongoing basis, the requirements, compliance criteria, and validation processes as set forth in the Payment Card Industry ("PCI") Data Security Standard as promulgated from time to time by the major credit card companies.
2.4 Extranet: themenuhero.com Digital Marketing System “DMS�? & Property Management System "PMS" & Reputation Management System “RMS�? & ADA Tray® Management System “ATMS�? & Dedicated Email Hosting (DEH)
themenuhero.com will provide the MENU HERO®, in accordance with subscription(s) executed with, a user ID and password that allows the MENU HERO® to access the themenuhero DMS/PMS/RMS/ATMS/DEH. The MENU HERO® shall safeguard and keep the user ID and password confidential and safely stored and not disclose it to any person other than those who need to have access to the Extranet. The MENU HERO® shall immediately notify themenuhero.com of any (suspected) security breach or improper use. themenuhero.com will not be responsible for any content generated by MENU HERO®, its employees, or third parties engaged by MENU HERO®. themenuhero.com is not responsible and disclaims all liability for any data privacy liability due to disclosure of Customer Data including Customer private data, credit card information or other identifying information associated therewith.
2.4.1 MENU HERO® Control and Responsibility. MENU HERO® has and will retain sole responsibility for: (a) all Customer Data, including its content (as defined in Section 3.2.1) and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
2.4.2 Access and Security. MENU HERO® shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
2.5 Subscription Payment & Remittance for Subscriptions Service
2.5.1 themenuhero.com shall invoice the INN for the applicable subscription fee at the end of the calendar month of service on the fifth (5th) day of the following month.
2.5.2 Invoices shall be processed as follows:
(i) themenuhero.com shall process invoices monthly and shall send a Subscription Fee statement to the MENU HERO® via mail, fax, or e-mail.
(ii) The MENU HERO® shall pay the monthly invoiced fees to themenuhero.com within fifteen (15) calendar days from the invoice date.
(iii) Payments shall be made by the MENU HERO® directly to themenuhero.com by credit card, check, or ACH (Automated Clearing House) to themenuhero.com, Inc.
(iv) The MENU HERO® shall bear all costs charged by its banking institution for the transfer of funds to themenuhero.com.
2.5.3 In the event MENU HERO® is late with a Subscription payment, themenuhero reserves the right to: (1) claim interest at the rate of a twelve percent (12%) monthly finance charge subject to the unpaid amount post 30 days within terms, (2) suspend its service under the Agreement, (3) ask for a bank guarantee or other form of financial security from the MENU HERO® to restore its Website and/or subscribed services.
2.5.4 In the event MENU HERO® delivers a check that bounces or conducts a chargeback on a valid credit card payment, themenuhero reserves the right to retrieve any bank processing fees, including chargeback fees, in addition to the nominal Subscription payment due.
3. themenuhero.COM RIGHTS AND OBLIGATIONS
3.1 INN Information License
3.1.1 The MENU HERO® hereby grants MENU HERO® a non-exclusive, royalty free and worldwide right and license (or sublicense as applicable) to:
(i) Use, reproduce, have reproduced, distribute, sublicense, communicate and make available in any method and display those agreed upon elements of the Intellectual Property Rights of the INN as provided to MENU HERO® by the MENU HERO® pursuant to this Agreement and which are necessary for MENU HERO® to exercise its rights and perform its obligations under this Agreement;
(ii) Use, reproduce, have reproduced, distribute, sublicense, display and utilize (including without limitation to publicly perform, modify, adapt, communicate, reproduce, copy and make available to the public in any manner whatsoever) the INN Information.
(iii) MENU HERO® may sublicense, make available, disclose and offer the INN Information, including the relevant Intellectual Property Rights of the INN, special offers made available by the INN on the Website, and all such further rights and licenses set out in this Agreement via or in collaboration with the websites of affiliated companies and/or third parties (the "Third Party Websites").
3.2 Customer Data and “INNsights�? Guest Reviews
3.2.1 themenuhero.com may transmit or make available the reservation made by a Guest to the INN. Each reservation will contain reservation details such as the date of arrival, the number of nights, the room type, including smoking preference if applicable, the room rate, the Guest's name, address and credit card details (collectively "Customer Data") and such other specific request(s) made by the Guest.
3.2.2 Guests who have stayed at the INN may be asked by themenuhero.com to comment on their stay at the INN and to provide a score for certain categories as determined by themenuhero.com. Guest reviews (“INNsights�?) will be posted on the Website.
3.2.3 themenuhero.com reserves the right to post INNsights on the Website. The INN acknowledges that themenuhero.com is a distributor, without any obligation to verify, the INNsights. Guests, and not themenuhero.com, are publishers of INNsights.
3.2.4 themenuhero.com undertakes to use its best efforts to monitor and review INNsights for obscenities or the mention of an individual’s name. themenuhero.com reserves the right to edit or remove INNsights if such INNsights include obscenities or mention an individual’s name. themenuhero.com must approve an MENU HERO® in order to get published.
3.2.5 themenuhero.com will not enter into any discussion, negotiation or correspondence with the INN with respect to the content of, or consequences of the publication or distribution of INNsights.
3.2.6 themenuhero.com shall not have and disclaims any liability and responsibility for the content and consequences of the publication or distribution of any comments or reviews whatsoever.
3.2.7 themenuhero.com is the rightful owner of any and all Customer Data and makes such data available at will to the MENU HERO®.
3.3 Internet Marketing and Pay Per Click (PPC) Advertising
3.3.1 themenuhero.com is entitled to promote the INN using the INN’s name(s) in online marketing, including email marketing and/or pay-per-click (PPC) advertising. themenuhero.com may run online marketing campaigns at its own costs and discretion.
(i) An MENU HERO® may elect to provide additional advertising spend dollars per month at their own desire which will be communicated to and managed by themenuhero.com.
(ii) Any additional advertising spend budget and its payment will be the responsibility of the MENU HERO®.
3.3.2 The MENU HERO® is aware of the working methods of search engines, such as spidering of content and ranking of URLs. themenuhero.com agrees that if the INN becomes aware of behavior by Third Party Websites that breaches the INN’s Intellectual Property Rights, then the INN will notify themenuhero.com in writing with details of the conduct and themenuhero.com will use its commercially reasonable endeavors to ensure that the relevant third party takes steps to remedy the breach.
3.3.3 The MENU HERO® is aware that the order in which the INN is listed on meta search engine results is based on a variety of factors that are unbeknownst or controlled by themenuhero.com. While themenuhero.com makes every effort to drive direct traffic, it does not guarantee page placement on search engine natural search results or promise high volume of traffic to a Standalone Website.
3.3.4 The INN agrees not to specifically target the themenuhero.com brand directly through keyword purchases that use themenuhero.com Intellectual Property Rights.
4. WEBSITE DESIGN/HOSTING
4.1 The Parties agree that by signing up for the Lite, Basic, or Premium Marketing Engagement Package, MENU HERO® shall design and host a website (“Hotel Website Powered by MENU HERO®�?) for the INN.
4.2 MENU HERO® understands that themenuhero.com will custom design the Standalone Website in a responsive HTML framework utilizing client feedback and the latest design standards; however some elements of the custom design HTML may be shared across multiple customers of themenuhero.com.
4.3 MENU HERO® acknowledges that services may be temporarily unavailable for scheduled maintenance or due to other causes beyond themenuhero.com’s reasonable control, but themenuhero.com shall use reasonable efforts consistent with industry standards to provide advance notice of any scheduled service disruptions and attempt to maintain the highest levels of server uptime possible.
4.4 MENU HERO® will inform MENU HERO® via email alert of any site outage within 24-hours of such outage.
5. MARKETING ENGAGEMENT, ADA Tray®, REPUTATION MANAGEMENT SERVICE, AND DEDICATED EMAIL HOSTING PACKAGES
5.1 MENU HERO® offers three (3) Marketing Engagement packages to host and manage an INN’s digital marketing, as more fully described on themenuhero.com’s website at http://www.themenuhero.com/hotel-digital-marketing-system-subscription-fees
(i) As part of this Marketing Engagement, MENU HERO® may elect to process guest reservation transactions via a Third Party Transaction Site or the MENU HERO® Booking Engine.
(ii) MENU HERO® acknowledges having reviewed this webpage and fully understands the differences between the various packages.
(iii) MENU HERO® acknowledges that specific services may change from time to time and that if the services change, MENU HERO® will provide notification to MENU HERO® of such changes to services provided under the various packages.
5.2 MENU HERO® offers the ADA Tray® Powered by MENU HERO® for additional website accessibility features, as more fully described on themenuhero.com’s website at http://isuite.themenuhero.com/ADA
(i) MENU HERO® acknowledges having reviewed this webpage and fully understands the additional website accessibility features that ADA Tray® offers.
(ii) MENU HERO® acknowledges that the ADA Tray® is automatically included and enabled on their standalone website Powered by MENU HERO® when subscribed to any Marketing Engagement package and is offered A La Cart or separately for $19.99/month to non-subscribers.
(iv) ADA Tray® increases MENU HERO® website conformity to ADA, Section 508, and WCAG 2.1 Level AA Standards and other website accessibility standards.
(v) ADA Tray® includes features that makes your website more perceivable, operable, understandable and robust for individuals with visual, audio, and mobility impairment and includes an on-screen reader built in will translate web content to audio output.
(vi) ADA Tray® includes a widget that offers keyboard accessible toggle functionality.
(vii) MENU HERO® acknowledges that termination of the ADA Tray® may result if payment is not received by MENU HERO® or termination of ADA Tray® may result due to cause including abuse of its systems and upon termination, widget can be disabled and will no longer function as MENU HERO® controls a 'kill switch' to this service.
(viii) MENU HERO® provides no guarantee of uptime or other timing issues associated with the ADA Tray® and MENU HERO® software, website, or hardware.
(ix) MENU HERO® can cancel the ADA Tray® at any time.
(x) MENU HERO® acknowledges that specific services may change from time to time and that if the services change, MENU HERO® will provide notification to MENU HERO® of such changes to services provided under the various packages.
5.3 MENU HERO® offers an additional program called the Reputation Management System, as more fully described on themenuhero.com’s website athttps://isuite.themenuhero.com/hotel-restaurant-reputation-management
(i) As part of the Reputation Management System, MENU HERO® agrees to provide access to MENU HERO® to review site login credentials and permits MENU HERO® to manage account on their behalf.
(ii) MENU HERO® acknowledges that the Reputation Management System is automatically included and enabled when subscribed to the Premium Marketing Engagement package.
(iii) MENU HERO® acknowledges having reviewed this webpage and fully understands the services offered.
(iv) MENU HERO® acknowledges and agrees that MENU HERO® is not responsible for negative reputation or any financial or material losses from reputation scores or management of reputation online.
(v) MENU HERO® agrees to respond to the last 5 reviews per client on Yelp and TripAdvisor at inception and thereafter reply to all future reviews.
(vi) MENU HERO® can respond to any review at any time on behalf of MENU HERO® with or without permission or review of response.
(vii) MENU HERO® reserves the right to skip drafting responses to reviews if it is not in the best interest of MENU HERO®.
(viii) MENU HERO® will attempt to contact MENU HERO® for context to any reviews it does not feel comfortable drafting a response, at its own discretion.
(ix) MENU HERO® may reuse certain review responses or elements of such responses across any current or future MENU HERO®s and thereby each response may not be entirely authentic.
(x) MENU HERO® acknowledges that specific services may change from time to time and that if the services change, MENU HERO® will provide notification to MENU HERO® of such changes to services provided under the various packages.
(xi) MENU HERO® reserves the right to use MENU HERO® name or certain personally identifiable data in responses.
(xii) MENU HERO® will attempt to edit responses at the direction of client if permissible by EULA of review site.
(xiii) MENU HERO® will abide by any provisions of EULA from Reviews Sites i.e. Yelp, TripAdvisor, Google Reviews, OTAs as MENU HERO® will be bound by their specific T&Cs.
(xiv) MENU HERO® will use best practices to manage reputation and will do its best to honestly represent the client, but cannot guarantee accuracy and performance.
(xv) MENU HERO® draft content is the Intellectual Property Right of MENU HERO® and content is licensed to MENU HERO®.
(xvi) While MENU HERO® will make its best efforts to maintain accuracy and professional content writing, MENU HERO® will not indemnify any parties or others from inaccuracy, omission, spelling/grammar mistakes etc. from content that is drafted.
(xvii) MENU HERO® can cancel the Reputation Management System at any time.
5.4 MENU HERO® offers Dedicated Email Hosting as an additional service, as more fully described on themenuhero.com’s website at https://isuite.themenuhero.com/small-business-dedicated-email-hosting
(i) As part of this Dedicated Email Hosting subscription, MENU HERO® elects to have MENU HERO® host and manage its dedicated email boxes.
(ii) MENU HERO® acknowledges having reviewed this webpage and fully understands the features of this service.
(iii) themenuhero.com provides 25GB Mailbox Storage with capacity for 50 MB Attachments.
(iv) themenuhero.com provides Unlimited Forwarding and Free Email Aliases.
(v) themenuhero.com provides Anti-Spam and Anti-Virus protection and data breach security via its hosting partner but cannot guarantee client from a security breach or virus.
(vi) themenuhero.com will not be liable for any damage to software, hardware or equipment, or loss of personal data tied to any hacking event or virus derived from email hosting functions.
(vii) themenuhero.com provides set up with various email client(s) (e.g. MS Outlook), use webmail, or mobile device to access email.
(viii) MENU HERO® can cancel at any time and be provided a prorated refund based on unused time.
(ix) MENU HERO® agrees that at cancellation, access to @domain emails will cease and MENU HERO® will need to find another provider and themenuhero.com is not responsible for any and all lost, missing, or deleted emails.
(x) themenuhero.com is not responsible or liable for any spam law violations.
(xi) themenuhero.com is not responsible for or required to monitor content for any and all email content or transmission of data, text, or pictures in any form: child porn transmission or other elicit activity conducted through MENU HERO®’s email.
(xii) MENU HERO® also will not be responsible for adherence to the European Union’s General Data Protection Regulations (GDPR) or privacy violations committed by MENU HERO® while using service.
(xiii) MENU HERO® agrees that use of themenuhero.com mail servers for elicit solicitation will result in termination.
(xiv) themenuhero.com is not responsible for defending against blacklisting of email address from Internet Service Providers (ISP).
(xiv) themenuhero.com is not responsible for defending against blacklisting of email address from Internet Service Providers (ISP).
5.5 MENU HERO® reserves the right to modify pricing, service and associated features of any of these services at any time with notice to the MENU HERO® within 14 days of such change either by posting on their website and/or an electronic or written means to MENU HERO® at any such address as set out in this Agreement.
6. THIRD PARTY TRANSACTION HANDLING
6.1 As a Marketing Engagement client of themenuhero.com:
(i) MENU HERO® may elect to have a Third Party Transaction Website handle all guest reservation processing.
(ii) MENU HERO® has received authorization from the Third Party Transaction Website to accept guest reservation requests on behalf of its INN.
(iii) Consequently, the MENU HERO® hereby authorizes the following Third Party Transaction Website with its details as follows to accept Guest reservation availability requests from its Hotel Website:
|Third Party Transaction Website Information
THIRD PARTY WEBSITE NAME:
WEBSITE LEGAL OWNER NAME:
|MENU HERO® has been provided permission by website owner to connect standalone website Powered by MENU HERO® to interface with its website?
THIRD PARTY WEBSITE PROPERTY SPECIFIC URL:
Table 1: Third Party Transaction Website Details
(iv) MENU HERO® will follow the Application Programming Interface (API) requirements for the Third Party Transaction Site to establish the connectivity between the Hotel Website and the booking engine of the target Third Party.
a. If no interface exists nor is supported by the Third Party, MENU HERO® will not be responsible for providing any such proprietary software to enable such an interface.
b. The support of any availability and connectivity issues in the interchange and exchange of data between the Hotel Website and the Third Party Transaction Site will not be the responsibility of MENU HERO®.
7. MENU HERO® BOOKING ENGINE
7.1 MENU HERO® can elect to use the MENU HERO® Booking Engine, a proprietary booking engine developed by MENU HERO® and optimized for driving the conversion of website visitors to accommodation reservations.
7.2 The MENU HERO® Booking Engine currently charges Zero Commission on the sale of accommodations online; however MENU HERO® reserves the right to modify this rule with appropriate notice to MENU HERO®.
8.1 MENU HERO® shall pay no commission to MENU HERO® as per this agreement MENU HERO® has elected to use a Third Party Transaction Website for reservation bookings OR is using the MENU HERO® Booking Engine, which is currently offered at Zero-Commissions.
8.2 Every one year anniversary from the effective date of this Agreement, MENU HERO® agrees that an agreed upon fixed fee and/or the agreed upon Commission percentage fee can be changed at the discretion of MENU HERO®.
8.3 MENU HERO® shall provide Notice to the MENU HERO® within 30 days prior to any change in commission or fixed fee per month and/or an agreed upon percentage fee per transaction.
8.4 MENU HERO® shall be responsible in full for any API usage or transaction fees levied by their contracted Third Party Transaction Site.
9. PRICING & PACKAGE SELECTION
9.1 MENU HERO® shall be responsible for paying for the Marketing Engagement and Al A Carte products and services as follows:
Marketing Engagement Services:
(i) Lite Package: The cost for the Lite Subscription Package is $159 per month.
(ii) Basic Package: The cost for the Basic Subscription Package is $399 per month.
(iii) Premium Package: The cost for the Premium Subscription Package is $699 per month.
Al A Carte Services:
(iv) Standalone ADA Tray® Package: The cost for the Standalone ADA Tray® Subscription Package is $19.99 per month.
(v) Bundled ADA Tray® Package: The cost for the Bundled ADA Tray® Subscription Package is $0 per month and is included with all Marketing Engagement Service subscriptions.
(vi) Standalone Reputation Management System Package: The cost for the Standalone Reputation Management System Subscription Package is $129 per month.
(iv) Bundled Reputation Management System Package: The cost for the Bundled Reputation Management System Subscription Package is $0 per month and is included with the Premium Package.
(iv) Dedicated Email Hosting Package: The cost for the Dedicated Email Hosting Subscription Package is $5 per month per mailbox.
9.2 The Marketing Engagement Services per month prices (See Section 9.1) and the Standalone and Bundled ADA Tray® services per month (see Section 9.1) and the Standalone and Bundled Reputation Management System Package(s) (see Section 9.1) and Dedicated Email Hosting (See Section 9.1) are subject to change and MENU HERO® reserves the right to modify the cost for each subscription package with appropriate notice to MENU HERO®.
10. PACKAGE SELECTION
10.1 MENU HERO® has reviewed the above options provided by MENU HERO® and selects the following package: (Please check at least one package)
Lite Marketing Subscription Package at $159 per month
Basic Marketing Subscription Package at $399 per month
Premium Marketing Subscription Package at $699 per month
Standalone ADA Tray® Subscription Package at $19.99 per month
Bundled ADA Tray® Subscription Package at $0 per month included with Any Marketing Engagement Subscription Package
Standalone Reputation Management System Subscription Package at $129 per month
Restaurant MenuHero Subscription Package at $19.95 per month
Bundled Reputation Management System Subscription Package at $0 per month included with Premium Marketing Engagement Subscription Package
Dedicated Email Hosting Subscription Package at $5 per month per mailbox
10.2 Every one-year anniversary from the date of execution of this Agreement, MENU HERO® agrees that the monthly subscription rate for the Lite, Basic, Premium, and Standalone Subscription Package(s) (of Sections 9.1, 10.1) can be changed at the discretion of MENU HERO®.
10.3 MENU HERO® shall provide notice to the MENU HERO® within 30 days prior to any change in pricing for said Package(s).
11. WEBSITE OWNERSHIP
11.1 Website Domain
(i) Upon receipt of the Termination Notice, in the case if MENU HERO® did not previously own the Website Domain and MENU HERO® wishes to claim ownership of the Domain for their Property’s Website, MENU HERO® will be required to purchase the Domain from MENU HERO®.
(ii) The purchase price of the Domain will be determined by MENU HERO® based on the cost of registration of the said Domain.
(iii) Upon purchase of the Domain by MENU HERO® from MENU HERO®, MENU HERO® will transfer Domain registration to MENU HERO®’s desired domain registrar within 30 days of the transfer of Domain ownership.
(iv) If MENU HERO® is the original owner of the Domain, MENU HERO® will transfer Domain registration to MENU HERO®’s desired domain registrar within 30 days of Termination.
(v) If MENU HERO® fails to facilitate transfer of Domain within 30 days of termination, MENU HERO® will thereby forfeit ownership of the Domain to MENU HERO®.
11.2 Website Content
(i) MENU HERO® will create new content to describe the INN leveraging existing information found on the Internet and provided by the MENU HERO®. themenuhero.com will retain all Intellectual Property Rights on any content that is unique and created by MENU HERO® including website design, property descriptions and any logo or photography created by MENU HERO®.
(ii) All Standalone Website content, data, and software code created by MENU HERO® shall remain the property of MENU HERO® upon termination and MENU HERO® acknowledges that the Standalone Website Powered by MENU HERO® will not operate without a valid subscription to the software service, therefore the MENU HERO® will need to create a new website or transition back to their original website hosted by a third party host.
(iii) MENU HERO® agrees to cooperate with MENU HERO® in transitioning to the MENU HERO®’s new desired third party host within 14 days of termination.
(iv) themenuhero.com Logo and Link
a. MENU HERO® agrees to allow themenuhero.com to place a non-obtrusive text logo and link to themenuhero.com’s website in order to demonstrate licensing privilege for any copyrighted materials such as stock imagery that is owned by themenuhero.com.
12. EXISTING WEBSITE CONTENT
12.1 MENU HERO® understands that any current website content will no longer be accessible upon the wire on of their new website Powered by MENU HERO® and it is their responsibility to archive or retain any existing data on their current server if they wish to retain such data for future use.
The current website is located at: http://www.___________________________________
13. TERM AND TERMINATION
13.1 Unless otherwise agreed to in writing, this Agreement shall commence on the Effective Date and be effective for one (1) year. This Agreement shall continue thereafter indefinitely until terminated in writing by either Party.
13.2 Either Party may terminate this Agreement without providing notice and with immediate effect in case of:
(i) A material breach by the non-terminating Party of any term of this Agreement (e.g. excessive delay of subscription payment, insolvency, posting false or misleading information on the Website; or
(ii) A bankruptcy filing by either Party.
13.3 Term. This Agreement shall remain in effect until MENU HERO® provides a termination notice, as provided below.
13.4 Termination. The MENU HERO® can terminate this Agreement at any time. In the event MENU HERO® would like to terminate the subscription package selected below, the MENU HERO® shall provide MENU HERO® with written notice of termination (“Termination Notice�?), addressed to MENU HERO® at its corporate office via mail, fax or e-mail, at least thirty (30) days prior to the proposed termination date.
13.5 Upon termination and save as set out otherwise, this Agreement shall absolutely and entirely terminate with respect to the terminating Party and cease to have effect without prejudice to other Party’s rights and remedies with respect to an indemnification or a breach by the other, terminating, Party of this Agreement. Sections 14, 15, 16 and 17 shall survive termination.
14. REPRESENTATIONS AND WARRANTIES
14.1 The INN represents and warrants to themenuhero.com that for the term of this Agreement:
(i) The MENU HERO® has all necessary rights, power and authority to use, (sub)license and have themenuhero.com make available on the Website the Intellectual Property Rights as set out or referred to in the INN Information made available on the Website;
(ii) The MENU HERO® holds and has all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business;
(iii) The MENU HERO® acknowledges they are solely responsible to complying with The Americans with Disabilities Act (ADA).
(iv) While themenuhero.com endeavors to follow Web Content Accessibility Guidelines (WCAG) 2.1, themenuhero.com specifically disclaims any guarantee that the products and/or services provided to INN are in compliance with The Americans with Disabilities Act (ADA) or any other accessibility laws that the INN is subject to.
(v) The parties hereto further acknowledge that services and products are provided ‘as-is’ and ‘as available’ and themenuhero.com disclaims all warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose and non-infringement. In the event of a failure of the product or themenuhero.com services to MENU HERO®, themenuhero.com will attempt to resume services as quickly as possible with no additional charges to MENU HERO®.
(vi) themenuhero.com will not be liable for lost profits, work interruption, or special, or consequential damages resulting in whole or in part from errors, omissions, or failures in its product or service.
(vii) themenuhero.com makes no warranties or guarantees regarding the accuracy on the Website or for performance of any services provided by or for social media channels of email marketing which is provided by MENU HERO® or for information generated by themenuhero.com, which has been approved by MENU HERO®.
15. INDEMNIFICATION AND LIABILITY
15.1 IN NO EVENT SHALL themenuhero.com BE LIABLE FOR ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY RELATING TO ANY SOFTWARE OR YOUR USE OF ANY SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL themenuhero.com BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, NON-PERFORMANCE OF SOFTWARE PRODUCT, LOSS OF INFORMATION, DATA OMISSIONS OF THE SOFTWARE or ANY SOFTWARE, DATA PRIVACY LIABILITY, PRIVATE CUSTOMER DATA LIABILITY, THIRD PARTY CUSTOMER DATA LIABILITY, ERRORS IN DATA TRANSMISSION OF ANY SOFTWARE, ERRORS IN TRANSMISSION OF RESERVATION INFORMATION, ANY IMPACT ON REVENUE, ANY INCREASE OR DECREASE IN BUSINESS OR COMPANY PERFORMANCE, OR LOSS OF OTHER SOFTWARE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF themenuhero.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. IN ADDITION, IN NO EVENT SHALL themenuhero.com BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. TO THE FULLEST EXTENT ALLOWABLE BY LAW, themenuhero.com’s TOTAL LIABILITY ON ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL NOT EXCEED FEES PAID FOR PRODUCTS AND SERVICES UNDER THIS CONTRACT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION AROSE.
15.2 Customer, Licensee, and Sub-licensee Representations, Warranties, Disclaimers and Indemnification
(i) Customer, licensee, and sub-licensee hereby represents and warrants that (i) the person signing this Agreement on its behalf has been properly authorized and empowered to enter into this Agreement on behalf of Customer, licensee, and sub-licensee and (ii) this Agreement is a valid and binding obligation of Customer, licensee, and sub-licensee enforceable against it in accordance with the terms and conditions hereof.
(ii) Customer, licensee, and sub-licensee agrees to defend, indemnify and hold Provider, licensor harmless from and against any and all claims, demands, liabilities, obligations, cost and expenses of any nature whatsoever arising out of or based upon Customer, licensee, and sub-licensee use of the Software Product, including, without limitation, any modifications, alterations, enhancements, brand licensing terms, Intellectual Property Rights including misuse of trademarks, copyrights, franchise brand licensing terms or marks etc. thereto, except for any such claims, demands, liabilities, obligations, costs or expenses that are based upon the gross negligence or intentional misconduct of Provider, licensor except for any claims of infringement subject to Provider, licensor’s indemnification pursuant to Section 15.3(iii) of this Agreement.
15.3 Provider, Licensor Representations, Warranties, Disclaimers and Indemnification
(i) Provider, licensor warrants that (a.) the person signing this Agreement on its behalf has been properly authorized and empowered to enter into this Agreement on behalf of Provider, licensor, and (b.) this Agreement is a valid and binding obligation of Provider, licensor enforceable against it in accordance with the terms and conditions hereof.
(ii) Provider, licensor shall not be liable to Customer, licensee, sub-licensee (or to any person claiming rights derived from Customer, licensee, and sub-licensee) for incidental, consequential, indirect, special, punitive, or exemplary damages of any kind, including, without limitation, lost profits, loss of business, or other economic damage, and further including injury to property, as a result of Customer’s, licensee’s, sub-Licensee’s use of the Software Product, Provider’s, licensor’s, and sub-licensor’s services, or breach of any warranty or other term of this agreement, regardless of whether Provider, licensor was advised, had reasons to know, or in fact knew of the possibility thereof.
(iii) Provider, licensor shall indemnify and hold Customer, licensee, and sub-licensee harmless from and against any damages, liabilities, costs and expenses, including reasonable attorneys’ fees, arising from a claim against Customer, licensee, and sub-licensee that the Software Product in the form delivered by Provider, licensor infringes or misappropriates any copyright, United States patent, trade secret or any other proprietary right of any third party, provided Provider, licensor is given prompt written notice containing detailed information with regard to any such claim, suit or proceeding. Customer, licensee, sub-licensee legal counsel shall have the option to participate, at Customer’s, licensee’s, and sub-licensee’s sole expense, in the defense of any such claim or action, and Customer, licensee, and sub-licensee shall not settle any such claim or action without Provider, licensor prior written consent. The foregoing represents the entire warranty by Provider, licensor and the exclusive remedy of the Customer, licensee, sub-licensee with regard to any claimed copyright, patent rights, trade secrets, or other proprietary rights infringement arising out of or based upon the Software Product used by Customer, licensee, sub-licensee.
(iv) The parties acknowledge and agree that the terms of this Agreement are based in substantial part on the provisions of this Section relating to disclaimers of warranties, limitations of remedies, limitations of liability and exclusions of damages, and that such disclaimers, limitations, and exclusions are unrelated, independent allocations of risk that form a material basis of this Agreement. Accordingly, the parties agree that if any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall remain in full affect.
16.1 Parties understand and agree that in the performance of this Agreement, each Party may have access to or may be exposed to, directly or indirectly, confidential information of the other Party (the "Confidential Information"). Confidential Information includes Customer Data, transaction volume, marketing and business plans, business, financial, technical, operational and such other non-public information that either a disclosing party designates as being private or confidential or of which a receiving party should reasonably know that it should be treated as private and confidential.
16.2 Each Party agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party and receiving party shall not use any Confidential Information for any purpose except in furtherance of this Agreement; (b) it shall maintain, and shall use prudent methods to cause its employees, officers, representatives, contracting parties and agents (the "Permitted Persons") to maintain the confidentiality and secrecy of the Confidential Information; (c) it shall disclose Confidential Information only to those Permitted Persons who need to know such information in furtherance of this Agreement; (d) it shall use prudent methods to ensure that the Permitted Persons do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all hard and soft copies of Confidential Information upon written request of the other Party.
16.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, or (iii) is required to be disclosed pursuant to law, court order, subpoena or governmental authority.
16.4 Parties shall use commercially reasonable efforts to safeguard the confidentiality and privacy of Customer Data and to protect it from unauthorized use or release.
16.5 No Modifications, Reverse Engineering. You may not (a) modify, port, adapt or translate any portion of MENU HERO®’s Services or Software; or (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or any portion of any Service or Software. If the laws of your jurisdiction give you the right to decompile the Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us.
17.1 Neither Party shall be entitled to assign, transfer, encumber any of its rights and/or the obligations under this Agreement without the prior written consent of the other Party, provided that themenuhero.com may assign, transfer, encumber any of its rights and/or the obligations under this Agreement, in whole or in part, or from time to time, to an affiliated company without the prior written consent of the INN.
17.2 All notices and communications must be in English, in writing, and sent by facsimile or nationally recognized overnight air courier to the applicable facsimile number or address set out in the Agreement.
17.3 This Agreement including the appendixes which form an integral part of this Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, offers, undertakings or statements regarding such subject matter vis-à-vis the INN).
17.4 If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions hereof. In that event, the Parties shall replace the invalid or non- binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
17.5 Save as set out otherwise in this Agreement, the laws of the State of California shall exclusively govern this Agreement. If a dispute arises out of or relates to this Agreement or its breach, the parties agree to resort to binding arbitration. Any claim or controversy arising from this Agreement shall be settled by arbitration in accordance with the Rules of the American Arbitration Association or Judicial Arbitration and Mediation Service (“JAMS�?) at the election of the party filing the claim in the County of San Francisco, State of California, and the judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction. In addition to a monetary award, the Arbitrator(s)’ shall have the power to order any other applicable remedy. The parties shall have the right to discovery as provided by California Code of Civil Procedure §1283.05. The prevailing party in the arbitration may be awarded its reasonable attorneys’ fees and costs in the discretion of the Arbitrator.
17.6 Parties agree and acknowledge that notwithstanding this Section, nothing in this Agreement shall prevent or limit themenuhero.com, Inc. in its right to bring or initiate any action or proceeding or seek interim injunctive relief or specific performance before or in any competent courts where the INN is established or registered under the laws of the relevant jurisdiction where the INN is established or registered and for this purpose, the MENU HERO® waives its right to claim any other jurisdiction or applicable law to which they might have a right.
18. NOTICE PROVISIONS
Notices pursuant to this Agreement shall be provided in writing via Certified Mail or e-mail as follows:
2445 Ocean Avenue
San Francisco, CA 94127
For any inquiries, please contact us at firstname.lastname@example.org.
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|Hotel Name or DBA:
|Corporation or LLC Name:
|Electronic Signatures (eSign): Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in portable document format (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.