Terms of Service

Client Terms of Service

Thank you for subscribing to the Popmenu Services. These Terms of Service (these "TOS") are part of the Subscription Agreement between You and Popmenu, Inc. (f/k/a Popmenu, LLC) ("Popmenu") and are incorporated into the Subscription Agreement as if fully set forth therein. These TOS (as they may be amended from time to time), together with the Subscription Agreement, form a binding agreement (the "Agreement") between You and Popmenu and govern Your access to and use of the Services. In the event of any conflict or inconsistency between these TOS and the Subscription Agreement, the order of precedence shall be: (1) these TOS and (2) the Subscription Agreement, except where a specific provision of these TOS is explicitly overridden with a cross-reference to such provision in the Subscription Agreement, in which case the Subscription Agreement will take precedence solely with respect to such provision.

If You are entering into this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind such entity and its affiliates to this Agreement. If You do not have such authority or a legal entity does not exist, You are personally responsible for the obligations hereunder.

1. DEFINITIONS.

1.1. "Account" means a unique account created for You to access the Services.
1.2. "Client Content" means images, text, logos, branding elements, video, audio and other content provided by You (including such content that You request Popmenu to upload to Your Account or the Services on Your behalf) to be displayed in, incorporated into or distributed through the Services for You, but excluding Statistical Data. Client Content includes Your domain names, trademarks, service marks, trade dress, trade names, corporate names and logos, and content from Your websites that are not Client Sites (if any).
1.3. "Client Sites" means any of Your websites that are built, hosted and/or powered by the Services.
1.4. "Follower" means any third-party individual who interacts or engages with You through the Services and whose personal information, ratings (known as "pops"), reviews, online orders or other related information is stored or processed through use of the Services.
1.5. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, in each case, for their full term and together with any renewals or extensions.
1.6. "Services" means the products and services made available or provided to You by Popmenu or its agents, as specified in Your Subscription Agreement or in a written notice (including email) between the parties. The Services include web-based applications, mobile applications, technical support and documentation such as user guidelines and online help files.
1.7. "Popmenu Sites" means my.popmenu.com, get.popmenu.com, any other subdomains of popmenu.com, as well as the Popmenu for Owners mobile application or any successor thereto.
1.8. "Subscription Agreement" means an ordering document or online or telephonic order specifying the Services to be provided hereunder that is entered into by You and accepted by Popmenu (or an authorized third-party reseller of the Services), including any amendments, addenda and supplements thereto. A Subscription Agreement may be entered into by You (a) by a document signed by You to subscribe to or purchase Services and/or to sign up for a Free Trial, (b) by You checking a box or clicking a button or link on a Popmenu Site or in an email from Popmenu to subscribe to or purchase Services and/or to sign up for a Free Trial, or (c) by You instructing Popmenu personnel, including via telephone, to subscribe You to (or otherwise enable Your purchase of) Services and/or to sign You up for a Free Trial. Any of the following acts constitutes Popmenu's acceptance of a Subscription Agreement: (a) Popmenu's acknowledgement of the Subscription Agreement (including via email); (b) Popmenu's commencement of performance or delivery of any of the Services ordered under the Subscription Agreement; (c) Popmenu's acceptance of any payment for Services ordered under the Subscription Agreement; or (d) Popmenu's signature on the Subscription Agreement (which document may be signed electronically and/or in multiple counterparts).
1.9. "You" means the person or entity that has licensed or purchased the Services through a Subscription Agreement (including such person or entity's employees, agents or contractors).

2. USE OF THE SERVICES.

2.1. Subject to the terms and conditions of the Agreement, Popmenu grants to You a limited, non-exclusive, non-transferable, non-sublicensable right to use the Services during the Term. You will not have any rights to the Services except as expressly granted in the Agreement. Popmenu reserves to itself all rights to the Services not expressly granted to You in accordance with the Agreement. Popmenu retains all Intellectual Property Rights in and to the Services. Popmenu may update or alter the Services from time to time, including removing features of the Services, provided that the overall functionality of the Services is not materially decreased.
2.2. You may use the Services solely for Your own internal business operations. You will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties; (c) compromise, circumvent or disable any security or other technological features or measures of the Services; (d) reverse engineer, copy, distribute, display, disseminate, or otherwise reproduce any element of the Services, or use the Services or any of Popmenu's Confidential Information (as defined below) to compete with the Services; (e) modify, adapt, hack, crack or phish the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, sexually explicit, unlawful, hateful, harassing, violent, threatening, racist, discriminatory or otherwise objectionable in Popmenu's reasonable opinion, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) use automated scripts to collect information from or otherwise interact with the Popmenu Sites or the Services; (i) impersonate any other user of the Services; or (j) use the Services in violation of any third-party acceptable use policy, terms of use or any similar policy or terms.
2.3. You will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights (including Intellectual Property Rights) of any third party or violate any third party's privacy rights.
2.4. You are prohibited from using the Services to send unsolicited email, text or other electronic communications (sometimes called "spam"). You agree to import into the Services only contact lists for which all parties have consented to receive email, text or other electronic communications from You. You are responsible for ensuring that Your use of the Services do not generate spam or other complaints in excess of industry norms. You agree that You are the sole or designated "sender" (as such term or similar term is defined in the United States CAN-SPAM Act of 2003 and any rules or regulations adopted under such act and any other applicable laws governing a similar subject matter) of any messages sent from Your Account. You also agree that You are the sole person or entity initiating or causing to be initiated any text/SMS messages sent from Your Account for purposes of the United States Telephone Consumer Protection Act and any rules or regulations adopted under such act and any other applicable laws governing a similar subject matter. Similarly, for messages sent to Canadian electronic addresses, You are the sole person sending or causing or permitting the message to be sent from Your Account (within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23). Subject to the foregoing, and unless Your Subscription Agreement includes a separate subscription to a text messaging plan with limits that differ from the following, for each restaurant concept for which You have purchased the "Pro" software subscription Service, You are permitted to send to Your Followers per month: (a) unlimited non-automated email communications; (b) up to 5,000 text communications for the first location of said restaurant concept; and (c) up to 2,500 text communications for each additional location of the same restaurant concept for which you have purchased an "Additional Location" Pro software subscription. Notwithstanding the foregoing, due to anti-spam protective measures, each Follower may only receive one text communication every seven days from each restaurant concept. A single text communication sent via the Services is comprised of up to 160 characters unless the message contains one or more Unicode characters (such as emoji or Chinese characters), in which case the limit is up to 70 characters. A text communication longer than the foregoing character limits will constitute multiple text communications for purposes of determining when You have reached Your monthly text communications limit. If Your business involves the marketing or sale of cannabis, CBD, kratom, drug paraphernalia products, or illegal substances or articles, You are prohibited from using the text messaging feature of the Services, regardless of the content of the text messages.
2.5. You are responsible for managing access to Your Account, including maintaining the confidentiality of usernames, passwords and account information, and for all activities that occur under Your Account or as a result of Your access to the Services. You will use reasonable efforts to prevent any unauthorized use of Your Account and immediately notify Popmenu in writing of any unauthorized use that comes to Your attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through You, You will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Popmenu to prevent or terminate unauthorized use of the Services.
2.6. Popmenu may suspend Your use of the Services if any fees owed by You under this Agreement are overdue, or if we reasonably and in good faith believe such suspension is necessary to prevent harm to Popmenu, to prevent unauthorized use of the Services, to prevent use of the Services in breach of the Agreement or to prevent an ongoing violation of any applicable laws or regulations. Popmenu will use commercially reasonable efforts to notify You prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized use, breach or violation.
2.7. You are solely responsible for all information, data, text, messages or other materials that are posted, uploaded, linked to or transmitted via Your Account or on Your Client Sites. Popmenu may, but is not obligated to, monitor such information, data, text, messages or other materials and Popmenu may take corrective action with respect to any such information, text, messages or other materials that violate the provisions of the Agreement. You hereby agree that Popmenu has no liability arising from such information, data, text, messages or other materials or due to any corrective action that Popmenu may take with respect to the same.
2.8. You will cooperate with Popmenu in the performance by Popmenu of the Services, including, without limitation, (a) providing Popmenu with timely access to information, Client Content and Your personnel, including promptly scheduling meetings when requested by Popmenu to facilitate the same; (b) promptly rendering all decisions and approvals so as not to delay or impede the performance of the Services by Popmenu; and (c) promptly notifying Popmenu of any issues, concerns or disputes with respect to the Services. You acknowledge that Popmenu's ability to deliver the Services is contingent upon Your compliance with the Agreement, including this Section 2.8. Accordingly, if Popmenu's performance of its obligations under the Agreement is prevented or delayed by Your act or omission, including Your failure to cooperate with Popmenu in accordance with this Section 2.8 (a "Client Delay"), Popmenu will not be deemed in breach of its obligations under the Agreement or otherwise be liable for any costs, charges or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from a Client Delay. A Client Delay does not terminate, suspend, or delay Your obligation to pay any fees otherwise due under the Agreement.
2.9. You hereby grant Popmenu a non-exclusive license to use, copy, modify, store, transmit and display the Client Content solely to the extent reasonably required to provide and maintain the Services for Your use. You represent, warrant and covenant that You have the right to grant us this right over the Client Content and the Client Content will not violate any laws or regulations or third-party proprietary rights, including, without limitation, copyright, trademark, obscenity, rights of publicity or privacy, and defamation laws. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of the Client Content.
2.10. You hereby grant Popmenu a nonexclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Popmenu receives from You. In addition, Popmenu may use Your name, logo and other information on the Popmenu Sites and marketing collateral and in sales pitches and Service demonstrations.
2.11. You are responsible for supplying and maintaining at Your own cost and expense all equipment and services necessary for You to access and utilize the Services, including but not limited to computer and network equipment, mobile devices, and internet connection services. Popmenu is not responsible for the reliability or availability of any such equipment or services.
2.12. You agree that Your subscription to the Services is not contingent on the delivery of any future functionality, or dependent on any oral or written public comments made by Popmenu regarding future functionality.
2.13. Popmenu may make features that we are still testing available to You. These modules and features are identified as beta, preview, early access or similar ("Beta Features"). Beta Features may not be supported or fully tested, may contain errors, design flaws or other problem, and may be changed at any time without notice to You. Beta Features are provided "as-is" without warranties of any kind. Popmenu will have no liability arising out of or in connection with a Beta Feature.
2.14. A single free trial subscription ("Free Trial") may be available for certain software subscription Services (the "Eligible Subscriptions"). Unless otherwise specified in Your Subscription Agreement, a Free Trial is for 30 days only. After a Free Trial expires, the Eligible Subscription will continue in effect and You will be charged a recurring subscription fee in accordance with Section 3 of this Agreement. If You do not wish to continue the Eligible Subscription after the expiration of the Free Trial, You must cancel the Eligible Subscription by terminating the Agreement in accordance with Section 4.3 of this Agreement. Free Trials are available only to new clients and You may only use a Free Trial once for each Eligible Subscription. Popmenu reserves the right, in its absolute discretion, to determine Your eligibility for a Free Trial and to revoke or modify a Free Trial and put Your account on hold in the event that we have determined that You are not eligible for a Free Trial. To the maximum extent permitted by law, Popmenu does not make any binding representations, warranties, commitments or obligations in connection with the Services during a Free Trial.

3. FEES; PAYMENT; TAXES.

3.1. During the Term (as defined in Section 4.1), You will pay Popmenu the fees specified in the Subscription Agreement (as such fees may be changed from time to time in accordance with this Section 3.1 and Section 8.6), the Online Ordering Transaction Fees (as defined in Section 3.5 and as such fees may be changed from time to time in accordance with this Section 3.1), the Third-Party Delivery Fees (as defined in Section 8.3) and any applicable Taxes (as defined in Section 3.4). After the Minimum Commitment Period (as defined below) or during any Renewal Term (as defined below), Popmenu reserves the right to increase the fees for the Services (including the Online Ordering Transaction Fees) to Popmenu's then-current rate card pricing upon 60 days' prior written notice. If You receive a discount for purchasing multiple Services or for selecting an upfront payment interval (e.g., annual upfront payments) and You terminate any one of those Services or change the payment interval, the discount will cease to apply to all remaining Services. If You order additional Services or upgrade the Services You are receiving, any resulting change in fees will be effective immediately. All amounts payable under the Agreement are denominated in United States dollars, and You will pay all such amounts in United States dollars. Except as otherwise provided in the Agreement, fees are non-refundable.
3.2. In order to use the Services, You must provide account information for at least one valid debit or credit card or bank account ("Payment Method"). You are responsible for providing complete and accurate Payment Method and contact information to us and notifying us of any changes to such information. You authorize Popmenu to charge Your Payment Method for all amounts due under the Agreement. Payment for any one-time fees specified in the Subscription Agreement and the first payment for the recurring subscription fees specified in the Subscription Agreement are due on the date the Subscription Agreement is entered into and Popmenu will charge or initiate a transfer from Your Payment Method for such amounts accordingly. Thereafter during the Term, Popmenu will charge or initiate a transfer from Your Payment Method in advance for the recurring subscription fees specified in Your Subscription Agreement at the payment intervals specified in Your Subscription Agreement. In addition, as described in more detail in Section.3.5, Popmenu will charge or initiate a transfer from Your Payment Method for Online Ordering Transaction Feesand Third-Party Delivery Fees. You agree to dispute any portion of such charged or transferred amount by notifying Popmenu in writing within 30 days of such charge or transfer and cooperating diligently with Popmenu in promptly resolving such dispute. If You initiate a chargeback with Your credit card company or bank rather than following the procedure described above, Popmenu will be entitled to recover the full amount of the chargeback, as well as any of its fees, disbursements or other costs or expenses involved in recovering such amount.
3.3. Except for any amounts disputed by You reasonably and in good faith, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Popmenu to collect any amount that is not paid when due. Amounts due from You under the Agreement may not be withheld or offset by You against amounts due to You for any reason. If any amount owed by You for the Services is 30 days or more overdue, we may, without limiting our other rights and remedies, (i) accelerate Your unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable, and (ii) suspend our services to You until such amounts are paid in full.
3.4. The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchase or use of the Services, as well as all Taxes associated with the sale of Your goods and services via the Services (i.e., the online orders submitted through the Services). Taxes will not be deducted from or set off against the fees set forth in Your Subscription Agreement or any applicable invoice. If Popmenu has the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.4, including for fees previously invoiced, Popmenu will invoice You and You will pay that amount. Popmenu is solely responsible for taxes assessable against Popmenu based on its income, property and employees.
3.5. Popmenu charges transaction fees per online standard (non-catering) order and online catering order submitted through the Services (collectively, the "Online Ordering Transaction Fees"). The Online Ordering Transaction Fees are in addition to the recurring subscription fees and any one-time fees specified in Your Subscription Agreement. Popmenu will charge Your Payment Method at regular intervals for the Online Ordering Transaction Fees and Third-Party Delivery Fees (as defined in Section 8.3) incurred during such timeframe, except for any Online Ordering Transaction Fees and Third-Party Delivery Fees that are remitted directly to Popmenu by Third-Party Payment Processors (as defined in Section 8.3).

4. TERM AND TERMINATION.

4.1. The Agreement is dated and effective as of the date the Subscription Agreement is entered into (the "Effective Date"), and will remain in effect until terminated in accordance with Section 4.2 or Section 4.3 (the "Term"). Unless otherwise specified in Your Subscription Agreement, the subscription start date of the subscription Services you purchase will commence on or about the Effective Date, regardless of when the subscription Services go live.
4.2. Either party may terminate the Agreement and the subscription Services (a) upon 30 days' prior written notice to the other party of a material breach of the Agreement by the other party if such breach remains uncured at the expiration of such period or (b) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.3. Other than pursuant to Section 4.2 above, You may not terminate the Agreement or the subscription Services during the "Minimum Duration," "Agreement Duration," "Contract Length" or similar designation for the initial subscription term set forth in Your Subscription Agreement (the "Minimum Commitment Period"). Any attempt to terminate the Agreement in breach of the foregoing sentence will accelerate Your unpaid fee obligations for the Minimum Commitment Period so that all such obligations become immediately due and payable. Unless otherwise set forth in Your Subscription Agreement, after the Minimum Commitment Period, the Agreement and the subscription Services will automatically renew for one-year terms (each, a "Renewal Term"), unless either party gives the other written notice at least 30 days before the end of the relevant subscription term, as applicable. If Your Subscription Agreement expressly provides for no automatic renewal, after the Minimum Commitment Period, the Agreement and subscription Services will remain in effect until either party terminates them by providing at least 30 days' prior written notice to the other party. For the avoidance of doubt, the Agreement and the subscription Services do not automatically terminate upon completion of the Minimum Commitment Period and notwithstanding anything to the contrary herein, upon written notice of termination in accordance with the this Section 4.3, You will not be refunded any fees paid prior to such notice and Popmenu will continue to provide You the Services through the end of the period for which fees have been paid. Unless otherwise specified in Your Subscription Agreement, a Free Trial that converts into a paid Eligible Subscription does not have a Minimum Commitment Period and may be terminated at any time by either party providing 30 days' prior written notice to the other party. If you upgrade from an "Indie" subscription to a "Pro" subscription, a Minimum Commitment Period will apply.
4.4. Upon termination of the Agreement or the subscription Services, (a) You will pay to Popmenu any unpaid fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive and (c) You will discontinue all use of the Services. If the Agreement or the subscription Services are terminated by You for Popmenu's material breach in accordance with Section 4.2, You will receive a pro-rata refund of the license fees prepaid for use of the Services not yet furnished as of the termination date. All provisions of the Agreement that, by their nature, are intended to survive termination (including those related to confidentiality, indemnification and limitations on liability) will remain in effect.

5. CONFIDENTIALITY.

5.1. For the purpose of the Agreement, "Confidential Information" means non-public information of Popmenu or You disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which (a) a reasonable person would consider confidential or (b) is marked "confidential" or "proprietary" or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of the Agreement by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party's files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession.
5.2. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties' respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.

6. THIRD PARTY SERVICES.

The Services may contain links to, be accessed from or provide access to third-party services, products or software that integrate or interoperate with or provide ancillary services to the Services ("Third-Party Services"). These Third-Party Services do not constitute part of the Services, are provided for Your convenience only and do not constitute our approval, endorsement, or recommendation of any such Third-Party Services for You. You access and use any Third-Party Service based on Your own evaluation and at Your own risk. You understand that Your use of any Third-Party Service is subject to that Third-Party Service's terms of use and privacy policies. If You use a Third-Party Service, You are responsible for reviewing, understanding and accepting the terms and conditions associated with its use. Popmenu expressly disclaims all responsibility and liability for Your use of any Third-Party Services. The Services may contain features that enable Third-Party Services to be directly integrated into Your Account. To use these features, You will be required to register for or log into such Third-Party Services on their respective websites. By accessing/enabling a Third-Party Service within the Services, You authorize Popmenu to pass Your log-in information to the Third-Party Service for this purpose. Unless otherwise expressly stated in Your Subscription Agreement, the pricing set forth therein does not include any fees that may be charged by third parties for the use of such Third-Party Services. For the avoidance of doubt, any changes to Third-Party Services, including their availability or unavailability, does not affect Your obligations under the Agreement, and You will not be entitled terminate the Agreement or to any reduction in fees, refund, credit or other compensation due to any such changes.

7. DATA PRIVACY; STATISTICAL DATA; DATA EXTRACTS.

7.1. The Popmenu Privacy Policy is incorporated herein by reference and forms a part of the Agreement. You acknowledge and agree that: (a) you are a "business" or "controller" with respect to, and therefore responsible for, personal data collected on your Client Sites or uploaded to Your Account; and (b) Popmenu collects information from Followers on Your Client Sites both (i) on Your behalf as a "service provider" or "processor" to You and (ii) on our own behalf as a "business" or "controller" (as "business," "controller," "service provider" and "processor" or equivalent terms may be defined under applicable data privacy laws). Each party to the Agreement will comply with all data privacy laws applicable to it with respect to the personal data collected or processed via the Services. If You use the Services via Third-Party Services provided by Clover Network, Inc. ("Clover"), (i) we will not use personal information we receive from Clover except as necessary to perform the Services, and (ii) You will notify users in Your privacy notice that information you collect will be shared with Clover pursuant to its privacy notice, available at https://www.clover.com/privacy-policy. You authorize Popmenu to display a template privacy policy and template terms of service on Your behalf on Your Client Sites. You acknowledge that You are responsible for ensuring that any privacy policy made available on Your Client Sites (whether or not incorporating any templates offered by Popmenu) complies fully with applicable data privacy laws and accurately describes Your personal data practices and the processing of personal data contemplated by the Agreement. You undertake to carefully review any template privacy policy made available on Your Client Sites on your behalf and to amend any such policy as necessary to ensure that it accurately and comprehensively describes Your personal data practices and complies fully with applicable data privacy laws. Popmenu makes no representations that any template privacy policy made available by Popmenu to You will enable You to comply with Your obligations under applicable data privacy laws. You understand and accept that Popmenu does not provide legal advice and is not authorized to do so.
7.2. You acknowledge and agree that Popmenu may extract, compile, combine, synthesize, and analyze any non-personally and non-client identifiable data, or otherwise anonymized or deidentified data, or information resulting from Your use of the Services ("Statistical Data"). Statistical Data may be collected by Popmenu for any lawful business purpose without a duty of accounting to You, provided that the Statistical Data is used only in an anonymized, deidentified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, Popmenu will own all Intellectual Property Rights in the Statistical Data.
7.3. You acknowledge and agree that Your Client Sites cannot be migrated to another web hosting service. However, You can transfer Your Client Content and any images delivered to You pursuant to Section 8.1 below at any time during the Term. In addition, during the Term, You have the ability to export CSV files of the following data from Your Account: (a) Your Followers' email, location, name, phone, birthday, follow date, import status, pops count and reviews count (to the extent that these data points have been collected from Your Followers); and (b) Your monthly online ordering reports (provided You are using the online ordering feature of the Services). You are responsible for exporting the foregoing data and transferring Your Client Content and any images delivered to You pursuant to Section 8.1 below out of Your Account prior to termination of the Agreement. Popmenu will not transfer or FTP such data, content or images to another provider. Upon termination of the Agreement, Popmenu has the right to delete Your Account and any associated data, content and images and Popmenu will not be able to provide a copy of such data, content or images after such deletion has occurred. You acknowledge and agree that pops and reviews submitted by Followers via the Services are an integral feature of the Services and You are prohibited from copying them or displaying them outside of the Services. As between You and Popmenu, all Intellectual Property Rights therein lie with Popmenu and You are not entitled to a copy of pops and reviews after termination of the Agreement.

8. ADDITIONAL TERMS.

8.1. Photography.

Unless otherwise set forth in the Your Subscription Agreement, Popmenu's photography package comprises a photo shoot of up to 3 hours on-location at Your place of business. During the photo shoot, the interior and exterior of Your place of business will be photographed, as well as up to 20-25 items from Your menu, provided that all menu items are prepared and presented to the photographer in a timely manner. High resolutions images edited for color balance and exposure as deemed necessary by the photographer in his/her artistic discretion will be delivered and hosted in Your Account within 2 weeks from Your photo shoot date. You will receive an unlimited, irrevocable, perpetual, non–exclusive, worldwide, royalty–free license to the images. You must notify Popmenu at least 48 hours prior to Your scheduled photo shoot in order to reschedule or You forfeit the photography package and associated fees, which will not be refunded if previously paid or which will become immediately due and payable if not yet paid, and You may be charged a cancellation fee.

8.2. Online Ordering.

You affirm that (a) Popmenu does not control the products or services that You offer or sell via the online ordering feature of the Services and (b) that Popmenu is not a party to any transactions that occur therein. Popmenu does not guarantee and disclaims any knowledge that Your customers possess the authority to make, or will complete, any online ordering transaction.

8.3. Third-Party Payment Processors and Delivery Providers.

Payment processing and delivery services (other than in-house delivery services) for online orders submitted through the Services are Third-Party Services provided by third-party payment processors (collectively, "Third-Party Payment Processors") and third-party delivery service providers (collectively, "Third-Party Delivery Providers"), respectively. As with all Third-Party Services, You are responsible for the fees charged for the services of Third-Party Payment Processors and Third-Party Delivery Providers. Third-Party Payment Processors generally will charge you directly for their services. The fees for delivery services provided by Third-Party Delivery Providers ("Third-Party Delivery Fees") will be paid as set forth in Section 3.5. By enabling payment processing or third-party delivery service for online orders, You authorize Popmenu to provide the Third-Party Payment Processors and Third-Party Delivery Providers (as applicable) with such information as is necessary for them to provide the applicable services and You agree to their privacy policies, including, if applicable, https://stripe.com/privacy. You expressly acknowledge, agree and understand that Popmenu is not and will not be liable for any sums that Third-Party Payment Processors fail to remit to You or any deliveries that Third-Party Delivery Providers fail to make in connection with any online ordering transactions, and Your sole recourse will be directly against the applicable Third-Party Payment Processor or Third-Party Delivery Provider. You hereby fully, finally, and forever release Popmenu from all claims arising out of a Third-Party Payment Processor's failure to remit payment or a Third-Party Delivery Provider's failure to deliver an order in connection with any online ordering transactions. Third-Party Payment Processors and Third-Party Delivery Providers may restrict or prohibit the use of their Third-Party Services for transactions involving the sale or delivery of alcohol, cannabis, CBD, kratom, drug paraphernalia products, or illegal substances or articles.

8.4. PCI DSS.

Popmenu will maintain all applicable PCI DSS requirements to the extent Popmenu possesses or otherwise stores, processes, or transmits cardholder data on Your behalf, or to the extent that the Services impact the security of Your cardholder data environment.

8.5. Domain Name Acquisition.

You agree to reimburse Popmenu for any fees we incur to purchase domain names for Your Client Sites. Upon reimbursement, any such domain names become Your Client Content.8.6. Additional Locations. A "Pro" software subscription must be in effect in order to maintain an "Additional Location" Pro software subscription for additional locations of the same restaurant concept. If You terminate a "Pro" software subscription, the pricing for one of Your "Additional Location" Pro software subscriptions for additional locations of the same restaurant concept (if any) will increase to Popmenu's then-current rate card pricing for a "Pro" software subscription.

9. WARRANTIES AND DISCLAIMER.

9.1. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into the Agreement; (b) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (c) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of the Agreement.
9.2. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 9.1, POPMENU MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND POPMENU EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. POPMENU DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, OR LOSS OF CONTENT ON YOUR CLIENT SITES OR THE POPMENU SITES NOT WITHIN POPMENU'S REASONABLE CONTROL.
9.3. POPMENU DOES NOT WARRANT THAT THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS THAT MAY BE APPLICABLE TO YOU, INCLUDING THE AMERICANS WITH DISABILITIES ACT OF 1990 ("ADA") AND THE TELEPHONE CONSUMER PROTECTION ACT ("TCPA"). YOU UNDERSTAND THAT YOU ARE LIKELY TO CONSTITUTE A PLACE OF PUBLIC ACCOMMODATION UNDER THE ADA, AND YOUR CLIENT SITES MUST BE IN COMPLIANCE WITH THE ADA. YOU UNDERSTAND THAT WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES COMPLY WITH THE ADA'S REQUIREMENTS FOR WEBSITES OR THE TCPA'S REQUIREMENTS FOR TELEPHONE MARKETING. YOU REPRESENT THAT YOU HAVE MADE AN INDEPENDENT JUDGMENT REGARDING THE SERVICES' COMPLIANCE WITH THE ADA AND THE TCPA, AND YOU UNDERSTAND THAT WE ARE NOT RESPONSIBLE FOR LOSSES RESULTING FROM CLAIMS AGAINST YOU THAT YOUR CLIENT SITES OR THE SERVICES ARE NOT IN COMPLIANCE WITH THE ADA OR THE TCPA. YOU ARE RESPONSIBLE FOR DETERMINING THE SUITABILITY OF OUR SERVICES FOR YOUR PURPOSES.

10. LIMITATION OF LIABILITY.

10.1. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION, OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
10.2. WITH THE EXCEPTION OF YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS RESPECTIVE AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO THE AGREEMENT, (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY YOU TO POPMENU DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY POPMENU TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS AGREEMENT WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10.4. Notwithstanding any provision of these TOS, if Your jurisdiction has provisions specific to waiver or liability that conflict with the above then each party's liability is limited to the greatest extent permitted by law.

11.INDEMNIFICATION.

11.1. Popmenu will, at its expense, defend You from or settle any claim, proceeding, or suit ("Claim") brought by a third party against You alleging that the Services infringe or misappropriate any Intellectual Property Rights of any third party, and indemnify You from all damages, costs, and attorneys' fees finally awarded in any such Claim or paid to any third party to settle any such Claim. Popmenu's obligation under this Section 11.1 is contingent on: (a) You giving Popmenu prompt written notice of the Claim; (b) You granting Popmenu full and complete control over the defense and settlement of the Claim; and (c) You providing assistance in connection with the defense and settlement of the Claim as Popmenu may reasonably request, at Popmenu's cost. You will not defend or settle any Claim eligible for indemnification under this section without Popmenu's prior written consent. In case of such a Claim, Popmenu may, at its sole expense and option (i) obtain for You the right to use the allegedly infringing portions of the Services or (ii) modify or replace the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality. If Popmenu determines that the foregoing remedies are not commercially reasonable, then Popmenu may terminate the Agreement and will promptly provide a prorated refund to You for any prepaid fees received by Popmenu for any Services that have not yet been performed at the time of termination. This Section 11.1 states Popmenu's sole and exclusive liability, and Your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party Intellectual Property Right by the Services. Popmenu will have no obligation under this Section 11.1 for any infringement or misappropriation to the extent that it arises out of or is based upon (1) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (2) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by You, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (3) Your failure to use the Services in accordance with the Agreement, if the infringement or misappropriation would not have occurred but for such failure; or (4) any modification of the Services not made or authorized in writing by Popmenu where such infringement or misappropriation would not have occurred absent such modification.
11.2. You will defend Popmenu and its officers, directors, employees, agents, successors and assigns from any third party Claim arising out of or based upon (a) Your breach of any of Your obligations under the Agreement, (b) Your use of the Service, or (c) any of the exclusions stated in Section 11.1, and indemnify Popmenu from all damages, costs, and attorneys' fees finally awarded in any such Claim or all amounts that You agree to pay to any third party to settle any such Claim. Your obligation under this Section 11.2 is contingent on: (i) Popmenu giving You prompt written notice of the Claim; (ii) Popmenu granting You full and complete control over the defense and settlement of the Claim, provided that You may not settle or defend any Claim unless You unconditionally release Popmenu of all liability and such settlement does not affect Popmenu's business or Services; and (iii) Popmenu providing assistance in connection with the defense and settlement of the Claim as You may reasonably request, at Your cost. Popmenu will not defend or settle any Claim eligible for indemnification under this Section 11.2 without Your prior written consent.

12. GENERAL.

12.1. Amendment. Popmenu may amend these TOS at any time by updating this page. Amendments will be binding on You on the date that they are posted (or as otherwise stated in any notice of such changes). Future provision of the Services by us is sufficient consideration for any such amendment. Any use of the Services will be considered acceptance by You of the then-current Terms. If at any time You find the Terms to be unacceptable, You may not use the Services any longer. Any new or different terms supplied by You are specifically rejected by Popmenu unless Popmenu agrees to them in a writing signed by Popmenu or a Subscription Agreement specifically including those new or different terms.
12.2. Assignment. Neither party may assign its right, duties, and obligations under the Agreement without the other party's prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign the Agreement without the other party's consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party's obligations under the Agreement.
12.3. Waiver. The waiver by either party of the other party's breach of any provision of the Agreement does not waive any other breach by the other party. The failure of either party to insist on strict performance of any covenant or obligation under the Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
12.4. Severability. If any provision of the Agreement is found to be unlawful, invalid or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of the Agreement are deemed to conflict with each other's operation, Popmenu shall have the sole right to elect which provision remains in force. If any material limitation or restriction on the use of the Services under the Agreement is found to be illegal, unenforceable, or invalid, Your right to use the Services will immediately terminate.
12.5. Notices. All notices will be in writing and deemed given (a) when received by the addressee if hand delivered or sent by a nationally recognized overnight courier or (b) on the first business day after sending by email. Notices shall be sent: (i) with respect to You, to the mailing address provided by You in the Subscription Agreement or the email address at which Popmenu primarily communicates with You at the time of the sending of the notice, unless You have notified Popmenu in accordance with this Section 12.5 of a different email address for receipt of notices under the Agreement; and (ii) with respect to Popmenu, to 1000 Parkwood Circle Suite 100, Atlanta, GA 30339 or the email address of the Popmenu employee with whom You primarily communicate at the time of the sending of the notice, in each case with a copy to legal@popmenu.com.
12.6. Force Majeure. Except for payment obligations hereunder, neither party will be liable for, or be considered to be in breach of the Agreement on account of, any delay or failure to perform any obligation under the Agreement where the delay or failure results from any cause beyond such party's reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
12.7. Entire Agreement. The Agreement constitutes the entire agreement between Popmenu and You regarding the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
12.8. Export Controls; Anti-Bribery. The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You will not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. You further represent that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with the Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
12.9. Governing Law; Jurisdiction. The Agreement is governed by and will be construed in accordance with the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. Jurisdiction for any claims arising under the Agreement will lie exclusively with the lowest court of competent jurisdiction in relation to civil matters in New Castle County, Delaware, and, by execution and delivery of the Agreement, each Party hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Parties hereby irrevocably waive any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, that any party may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions. For all disputes, You acknowledge and agree that prior to pursuing a claim in court, You must first give Popmenu an opportunity to resolve Your claim by sending a written description of Your claim. You and We each agree to negotiate Your claim in good faith, and You agree that You may not commence any court proceeding unless You and We are unable to resolve the claim within 60 days after We receive Your claim description.

Last Updated: January 3, 2024