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MarketMan Ltd. or MarketMan Inc. (as may be applicable, “MarketMan”) has developed and is the owner of the MarketMan Restaurant Inventory Management System, including any utility, application program interface (through website and/or application) or tools related thereto (the “Program”) accessed by you (“you” or “Customer”). This Subscription Agreement (“Agreement”) is a legal agreement by and between MarketMan and you. If you are a U.S. person then this Agreement shall be construed as having been entered into between you and MarketMan Inc., and if you are a non U.S. person then this Agreement shall be construed as having been entered into between you and MarketMan Ltd. MarketMan and the Customer shall be regarded each as a “Party”, and collectively as the “Parties”.
ANY USE OF THE PROGRAM INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES THERETO SUPPLIED BY MARKETMAN ARE, AND SHALL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNLESS YOU AND MARKETMAN HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH YOU AND MARKETMAN WHICH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE PROGRAM. By (a) clicking on the “I Accept” button below; (b) purchasing a subscription to the Program; and/or (c) accessing or using the Program or any function or services of the Program (“Services”), the Customer acknowledges and agrees that he/she has read and understood this Agreement, agrees to be bound by its provisions and to comply with all applicable laws and regulations regarding his/her use of the Program.
IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE PROGRAM IN ANY MANNER.
The following terms and conditions govern the Customer’s use of the Program under this Agreement:
1.1. Right to use the Program.
Subject to the terms and conditions of this Agreement, MarketMan hereby grants Customer a non-exclusive, non-transferable, revocable license during the term of this Agreement to access and use the Program through the MarketMan web/mobile application (the “MarketMan App”), solely for Customer’s internal business purposes, subject to Customer’s compliance with any and all of the terms and conditions set forth in this Agreement, including without limitation, the full payment of the SaaS subscription fee for the Program (the “Subscription Fee”).
MarketMan may make available to Customer certain documentation (whether in hard copy or electronic form) describing the use, features and operation of the Program (the “Documentation”), to be used solely for Customer’s internal business purposes and in connection with Customer’s use of the Program, and shall be considered part of MarketMan’s Confidential Information (as defined below).
2.1. Customer hereby agrees to cooperate with MarketMan to enable the provision of the Services, and comply with instructions provided by MarketMan to Customer in connection with MarketMan’s provision of Services hereunder; and acknowledges that the provision of certain Services by MarketMan may be dependent on Customer providing the foregoing cooperation.
3. Use of Customer Account.
A Customer account will be created in connection with Customer’s use of the Program (the “Account”), to be accessed and/or used solely by employees, agents and independent contractors of the Customer who are explicitly authorized by Customer to use the Program and for whom subscriptions to a Program have been purchased (each, a “Permitted User”). Customer acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify MarketMan in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account or the Program. Customer shall ensure that the Permitted Users comply with the terms of this Agreement and shall be solely responsible for any breach of this Agreement by a Permitted User.
4. Restrictions on Use.
Customer shall only access the Program via the MarketMan App. Customer must not, and shall not allow any Permitted User or any other third party to: (i) circumvent, disable or otherwise interfere with security-related features of the Program or features that enforce limitations on use of the Program and/or the MarketMan App; (ii) violate or abuse password protections governing access to the Program or the MarketMan App; (iii) allow any third party to use the Program and/or the MarketMan App except as permitted herein; (iv) sell, rent, lease, license or timeshare the Program and/or the MarketMan App or use any of them in any service bureau arrangement; (v) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the Program, the MarketMan App or any components thereof; (vi) use the Program and/or the MarketMan App to develop a competing service or product; (vii) use any automated means to access the Program and/or the MarketMan App; (viii) interfere or attempt to interfere with the integrity or proper working of the Program and/or the MarketMan App; (ix) access, store, distribute, or transmit during the course of its use of the Services any Malicious Code or unlawful, threatening, obscene or infringing material; (x) use the Program, the MarketMan App and/or the Services in a manner that would violate applicable data privacy laws or for any other unlawful purpose; and/or (xi) use the Program, Services and/or the MarketMan App in any other unlawful manner or in breach of this Agreement. For the purposes of this Agreement, “Malicious Code” means software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system.
5. End User License Agreement.
The use of the Program and Services by the Permitted Users through the Marketman App shall be subject to MarketMan’s then current end user license agreement (the “EULA”). Customer shall: (i) make each Permitted User aware of the EULA prior to the use of the Program and MarketMan App; (ii) use all commercially reasonable efforts to enforce the EULA with its Permitted Users; and (iii) promptly report to MarketMan in writing any breach, or suspected breach, of the EULA which it becomes aware of. Without limiting the foregoing, notwithstanding the Permitted User liability under the EULA, Customer shall defend, indemnify and hold harmless MarketMan against any judgment, loss, damage, claim or expense arising out of any breach by a Permitted User of any provision of the EULA.
6. Customer Data
While using the Program, Customer (and any Permitted User on its behalf) may choose to create provide, upload, import, transmit, post, or make accessible (collectively, “Provide”) to MarketMan certain Customer business related data, including but not limited to inventory, prices, expenses, images and/or and information processed through the Program; submissions made through the Program or any other data which is stored on (the “Customer Data”). Customer and its Permitted Users, as applicable, will retain all of their ownership rights in their Customer Data. Customer and/or its Permitted Users hereby grant MarketMan a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Customer Data only in connection with providing and operating the Services.
Customer represents and warrants that Customer and/or its Permitted Users (i) has the right and has obtained all rights required under any applicable laws (including but not limited to privacy laws) to provide MarketMan the license granted in Section 6.1 to use such Customer Data in accordance with its terms; (ii) the Customer Data it submits, its use of such Customer Data, and MarketMan’s use of such Customer Data, as set forth in this Agreement, does not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy or publicity rights of any third party; (b) violate any applicable data protection legislation; (c) be offensive, unlawful, violates export control laws threatening, pornographic, harassing, hateful, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is in any way inappropriate; (d) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; or (e) is otherwise malicious or fraudulent. It is hereby clariﬁed that MarketMan is not obligated to not monitor and/or moderate the Customer Data and there shall be no claim against MarketMan of not acting so;.
6.3. Availability of Customer Data.
Customer acknowledges that the Program does not operate as an archive or file storage service and MarketMan may, at its reasonable sole discretion, elect not to store the entirety of the Customer Data that Customer may provide during the Term, and that Customer is solely responsible for the backup and maintenance of the Customer Data Provided.
MarketMan agrees to implement reasonable security measures, but no less than industry standard security procedures, to protect Customer Data during the Term.. Customer is solely responsible for upgrading to the then-current minimum web browser requirements, as notified by MarketMan from time to time either displaying the then-current web browser requirements on the website www.MarketMan.com, or otherwise notified by MarketMan of the same.
8. Social Media Features.
9.1. Subscription Fee.
9.2. Payment Terms.
Unless otherwise expressly stated herein, all payments hereunder are quoted and shall be paid in United States Dollars. Payments shall be made without any right of set-off or deduction and are irrevocable and (except as expressly set forth herein) nonrefundable. All amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
All fees payable to MarketMan are exclusive of applicable taxes (including without limitation VAT), withholdings or duties, and the Subscription Fee are the net amounts which MarketMan shall be paid by Customer hereunder. All taxes, withholdings and duties of any kind payable with respect to Customer’s subscription to the Program or the purchase of Services arising out of or in connection with this Agreement, other than taxes based on MarketMan’s net income, shall be borne and paid by Customer.
10. Term and Termination
Unless agreed otherwise between the parties in writing, this Agreement shall enter into force and effect upon Customer clicking the “I Accept” button presented at the bottom of this Agreement, and shall remain in force and effect during the subscription term specified in Customer’s order, unless: (i) MarketMan or Customer provides the other with sixty (60) days written notice prior to the end of any term of its intent not to renew, or (ii) this Agreement is terminated in accordance with Section 10.2 below. If Customer continues to use the Program past any renewal date, then Customer shall be deemed to have renewed the Agreement for the following term at the rates applicable for said new term.
10.2.1. Material Breach.
Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof.
10.2.2. Distress Event.
In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, the other Party shall have the right to immediately terminate this Agreement.
If MarketMan believes that Customer is using the Program in a manner that may cause harm to MarketMan or any third party, then MarketMan may, without derogating from MarketMan’s right to terminate this Agreement for any breach hereof, suspend Customer’s access to and use of the Program and/or the Services until such time as MarketMan believes the threat of harm, or actual harm, has passed.
11. Effect of Termination
Upon termination of this Agreement, Customer shall immediately discontinue all access and use of the Program, pay any outstanding amounts owed to MarketMan, and shall promptly, but in any event within three (3) days, permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control.
11.2. Access to Customer Data.
Upon termination of this Agreement, Customer will lose all access to any Customer Data provided under this Agreement. Customer shall be responsible to download any Customer Data it is interested to export from the Program prior to termination of this Agreement. Notwithstanding the foregoing, for a period of thirty (30) days from the effective date of termination of this Agreement, MarketMan will provide Customer, upon Customer’s written request, with a reasonable opportunity to download the Customer Data still retained by MarketMan at such time. MarketMan reserves the right to permanently delete any Customer Data that may be contained in Customer’s Account at any time following said thirty (30) day period, and Customer agrees to waive any legal or equitable rights or remedies it may have against MarketMan with respect to Customer Data that is deleted in connection thereto.
This Section 14 and Sections 4 (Restrictions on Use), 8 (Rights and Title), 12 (Consideration), 15 (Warranty Disclaimer), 12 (Limitation of Liability), 16 (Indemnification), 17 (Confidential Information) and 19 (Miscellaneous) shall survive termination of this Agreement.
12. Warranty Disclaimer
12.1. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN: (I) THE PROGRAM, REPORTS (DEFINED BELOW), AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES WHATSOEVER CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE PROGRAM; AND (II) ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, NON-INTERFERENCE, ACCURACY, RELIABILITY AND QUALITY OF THE PROGRAM ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND CUSTOMER HEREBY EXPRESSLY WAIVES ALL SUCH WARRANTIES. MARKETMAN WILL NOT BE LIABLE OR RESPONSIBLE FOR: (a) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (b) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S HARDWARE OR SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER.
12.2. MARKETMAN DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH USE OF THE PROGRAM (COLLECTIVELY, “REPORTS”), OR THAT THE REPORTS ARE COMPLETE OR ERROR-FREE. THE REPORTS DO NOT CONSTITUTE LEGAL ADVICE, AND CUSTOMER UNDERSTANDS IT MUST DETERMINE FOR ITSELF THE NEED TO OBTAIN ITS OWN INDEPENDENT LEGAL ADVICE REGARDING THE SUBJECT MATTER OF ANY REPORT AND/OR ANY SOFTWARE THAT CUSTOMER USES OR IS CONSIDERING TO USE. CUSTOMER’S USE OF AND RELIANCE UPON THE PROGRAM AND ANY REPORTS IS ENTIRELY AT CUSTOMER’S SOLE DISCRETION AND RISK, AND MARKETMAN SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO CUSTOMER IN CONNECTION WITH ANY OF THE FOREGOING.
13. Limitation of Liability.
MARKETMAN FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, LOSS OF PROFITS, OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF MARKETMAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. WITHOUT DEROGATING FROM THE ABOVE, MARKETMAN’S MAXIMUM LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO MARKETMAN IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.Indemnification
13.1. By MarketMan.
MarketMan hereby agrees to defend and indemnify Customer against any damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that Customer’s use of the Program within the scope of this Agreement infringes any copyright or trade secret of a third party. MarketMan shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the Customer Data. Without derogating from the foregoing defense and indemnification obligation, if MarketMan believes that the Program, or any part thereof, may infringe, then MarketMan may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Program; (ii) replace or modify the allegedly infringing part of the Program so that it becomes non-infringing while giving substantially equivalent performance; (iii) require that use of the (allegedly) infringing Program (or any part thereof) shall cease, and in such event Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the applicable subscription period; or (iv) terminate this Agreement immediately, and in such event Customer shall receive a prorated refund of any Subscription Fees prepaid for the unused portion of the applicable subscription period. This Section 15.1 states MarketMan’ entire liability and Customer’s exclusive remedy for any claims of infringement.
13.2. By Customer.
Customer hereby agrees to defend and indemnify MarketMan against any damages awarded against MarketMan by a court of competent jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding that use of the Customer Data within the scope of this Agreement infringes any intellectual property rights of a third party, privacy right of a third party (including the Customer’s data subjects (including but not limited to its employees) or any applicable law.
The defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of or response to such claim; except if there is any conflict of interest between the parties or the indemnifying party has failed to defend such claims, in such event the indemnified party shall have the right to appoint their own legal counsel, at the indemnifying party’s expense.
14. Confidential Information.
Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. The terms of this Agreement are deemed MarketMan’s Confidential Information, however, Customer may disclose the terms herein to its advisers, subject to a confidentiality undertaking similar to the above.
15. Reference Customer.
MarketMan may use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of MarketMan and Program user, but will not imply that the parties are affiliated. Customer agrees to serve as a reference customer of MarketMan and shall cooperate with MarketMan’s reasonable marketing and referencing requests.
Each exhibit that is attached hereto is incorporated herein by this reference. Any purchase order entered into between the parties shall be deemed to incorporate the terms of this Agreement. This Agreement shall constitute the full Agreement between the Parties with respect to its subject matter and shall supersede any and all prior agreements and understandings relating thereto. This Agreement and any rights or obligations hereunder may not be transferred or assigned by Customer without the prior written consent of MarketMan, but may be transferred or assigned by MarketMan. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements and undertakings contained herein shall be deemed to be made by and be binding upon such heirs, executors, administrators, successors, legal representatives and permitted assigns. If any of the terms contained in this Agreement shall, for any reason, be held to be void or unenforceable, it shall not affect the validity or enforceability of any other term in this Agreement. The failure of either Party to enforce at any time any of the provi¬sions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either Party to enforce each such provision thereafter. If you are a U.S. person this Agreement, and any disputes between you and MarketMan in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules; and the parties agree to submit to the personal and exclusive jurisdiction of the courts located in New York County, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. If you are a non-U.S. person this Agreement, and any disputes between you and MarketMan in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to its conflict of laws rules; and the parties agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv-Yaffo, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding anything to the contrary, MarketMan may seek injunctive relief or other relief necessary to prevent or restrain a breach of this Agreement in any jurisdiction.Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing by mail and shall be sent to the address as shall be given by either Party to the other in writing. Notice shall be considered effective on the earlier of actual receipt or the day following transmission if sent by an email followed by a written or electronic confirmation.
הנך מצהיר/ה בזאת כי השפה האנגלית מוכרת לך וכי את/ה אינך זקוק לתרגום הסכם זה לשפה אחרת.
BY CLICKING THE UNDERSTOOD BUTTON, YOU ACKNOWLEDGE THAT (A) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (B) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (C) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF HIS/HER ORGANIZATION, AND (D) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON YOUR BEHALF.