Last updated: June 3, 2021.
HungerRush TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) ARE APPLICABLE TO ALL AGREEMENTS BETWEEN YOU AND THE COMPANY AND WILL AFFECT YOUR RIGHTS AND OBLIGATIONS.
The Terms are an integral part of and are incorporated by reference into all agreements entered into between you and HungerRush, LLC and any affiliates of HungerRush, LLC, including Order Inc. d/b/a OrdrAI (HungerRush, LLC and its affiliates are hereby collectively referred to as “the Company”).
An agreement between you and the Company may include written quotes, bids, proposals, and forms relating to delivery and installation (“D&I”), support services, subscriptions, software licenses, leases, card processing, financing, and cash advances, but not promotional, marketing, advertising, product brochures and descriptions and similar materials (collectively an “Agreement”). No Agreement is binding upon or enforceable against, and nothing is “agreed” to by, the Company unless it is in writing and signed by an authorized officer of the Company, and no Agreement, or part thereof, may be modified, waived, or amended unless it is done in a writing signed by an authorized officer of the Company. You shall be deemed to have accepted an Agreement if you sign a bid, quote, or other writing, or if you accept or use any products or services provided to you under any proposed Agreement.
In the event of a conflict between the Terms and any other provision of an Agreement, the Terms shall control unless such other provision specifically states that it controls. The Company shall publish the Terms at https://www.hungerrush.com/terms-of-use/ and may revise the Terms from time to time. You shall be deemed to have accepted any revised Terms if you do not provide written notice, within 30 business days of their first publication, that you do not accept the revised Terms. The Company may also revise the prices for its Products (defined below) at any time after the first year of the initial term of your Agreement, and you shall be deemed to have accepted such revised pricing if you do not provide written notice, within 30 business days of being notified thereof, that you do not accept the revised pricing. Should you provide such notice, the previous Terms or pricing, as applicable, shall remain in effect as part of this Agreement, but the Company may terminate the Agreement upon 30 days written notice after its receipt of such notice from you.
By entering into an Agreement, you affirm that: a) no officer, employee, representative or agent of the Company has made or entered into any oral agreement, promise, or understanding with you concerning the subject of the Agreement; b) you have not relied, and will not rely, upon any oral statements, promises or representations made to you by the Company or its officers, employees, representatives or agents in entering into the Agreement; c) you have not relied, and will not rely, upon any promotional, marketing, advertising, product and similar materials, or any other documents in entering into the Agreement; d) you have relied solely upon your own judgment and research in assessing, evaluating and selecting Products, and in entering into an Agreement to acquire the right to use Products, offered by the Company; e) you waive, release and assign to the Company your rights against the Company under the Texas Deceptive Trade Practices & Consumer Protection Act found at Section 17.41 et seq. of the Texas Business & Commerce Code, and any similar laws enacted by any other states and governmental entities; and f) you waive any right to pursue a class action, and any right to a jury trial in a lawsuit, against the Company.
Unless otherwise agreed: a) all equipment, hardware, software, programming, and other products and services (“Products”) are provided to you to use on a subscription basis; b) you shall pay the Company, in addition to any upfront and D&I fees, the agreed upon monthly subscription fee for the entirety of term of the Agreement; c) the Company shall, at all times, retain exclusive ownership of the Products, and shall enjoy all rights incident to such ownership (including the right to inspect, exchange and take possession of the Products); d) you shall not receive any free Product upgrades or enhancements; e) you must pay the prevailing rate for any and all support that you request and that the Company provides to you; f) the initial term of your agreement shall be 4 years; g) the term shall commence on the day that Products are first delivered to your location; and h) the term shall automatically renew for successive 2 year renewal terms if you do not provide written notice of non-renewal at least 30 days, but not more than 90 days, prior to end of the then current term, or if you provide such notice but fail to deliver back to the Company, at your expense, all of the Products covered by the Agreement within 3 business days of the end of the then current term.
Unless otherwise agreed, no price quoted or stated in any Agreement includes programming (programming includes all data inputs made to any software programs to design and create such things as menus, displays, reports, functionality, structure, and other features for use by you) or training for you or your employees.
A delivery and installation (“D&I”) schedule for all Products shall be agreed upon at the time of the Agreement or shall be determined by the Company in the absence of an agreed upon schedule. Unless otherwise agreed, all costs associated with delivering and installing Products, including travel expenses incurred by Company personnel, shall be paid by you or shall be promptly reimbursed by you if the Company initially pays those costs. If any Products are delivered or installed on an expedited basis, you shall pay a one-time expediting fee equal to 5% of the total of all monthly fees for the initial term. If you cancel a scheduled installation date, you shall: a) pay for any Products that have already been shipped; (b) reimburse the Company for all costs that it has incurred in connection with the scheduled installation; and c) pay a cancellation/rescheduling fee of $500.
If your Agreement requires emergency, urgent or expedited handling of any Product, then additional charges may be imposed by the Company, including, without limitation, a fee in the amount of up to 5% of the cost of the Product (up to maximum of $500). If any Product is returned to the Company after delivery, a restocking fee of 20% of the cost of the Product will be charged, and if the Company determines, in its sole judgment, that the Product has been used, the Company may assess a charge of up to 100% of the cost of Product.
If any Product is to be delivered to you via commercial shipper, you bear all risk of loss, shortage, or damage to the Product from any cause whatsoever once the Product is placed into the hands of the shipper. Upon delivery of any Product to you, you must inspect the Product, and you are deemed to have found the Product to be complete and in good working order unless you deliver written notice to the contrary within 2 days after delivery of the Product.
You are solely responsible, and the Company is not responsible, for determining and ensuring that: (a) the installation location is suitable for installing and using the Products, including, without limitation, ensuring that all necessary cabling, data lines, connections, utility services (electrical, internet and telephone), tables, equipment, counters, shelving, brackets, wall mounts, fixtures, etc.; (b) all necessary permits and approvals have been secured, and fees paid, for installation and use of the Products; (c) adequate insurance of not less than $500,000 has been secured by you covering both you and the Company against claims and demands that are related, in whole or in part, to the installation and use of the Products; (d) appropriate measures are implemented to secure and to prevent unauthorized access to any Products that are installed or used, and all data that will pass through, be generated by, or stored by such Products; (e) appropriate measures are implemented to properly and securely back up and archive data from the Products on a periodic basis; (f) all Products are properly and adequately protected from damage and harm due to environmental conditions, electrical surges, mishandling, vandalism, and other causes; and (g) the Company timely receives such information and data as it deems necessary to enable it to program, integrate, deliver and install the Products, to train you and your staff, and otherwise comply with its obligations under the Agreement.
The Company may choose to delay its performance under, or to terminate, an Agreement if: a) you become the subject of any bankruptcy, insolvency or other legal proceeding that might impact your ability to pay for any Products; b) you breach any of the terms of the Agreement; c) you assign or attempt to assign the Agreement to a third party without the Company’s advance written approval; or d) in the event of a war, riot, fire, explosion, flood, accident, pandemic, sabotage, vendor disruption, inability to obtain materials or equipment, change of law, Act of God, or other cause beyond its reasonable control. Otherwise, the Company shall endeavor to deliver and install all Products in accordance with the D&I schedule, but shall not be liable for any delay, or any resulting damages, that is not caused solely by the Company’s negligence. Should a delay be caused solely by the Company’s negligence, your exclusive remedy shall be to terminate the Agreement in writing within 3 business days of the missed D&I date and obtain a refund of any payment that you have previously made for the undelivered and uninstalled Products.
You must take all reasonable and necessary precautions to safeguard and protect the Products that are provided for you to use pursuant to any Agreement, and you must reimburse the Company for the full cost of any Product that is damaged while it is in your custody and control.
All Products, including software and programming, are licensed, not sold, for you, and only you, to use in the location identified in the Agreement, in the manner contemplated by the Agreement, and subject to the terms of the Agreement, and only for so long as you pay all sums due and owing to the Company, and are not otherwise in breach of or default under any Agreement between you and the Company. The license confers upon you no right, title, or interest in or to the Products, and the Company reserves all legal and beneficial ownership in and to the Products and to all modifications, updates, upgrades, enhancements, and improvements thereto, whether implemented by the Company, by you or by any third party. The license is nonexclusive, nontransferable, and revocable by the Company, and you may not copy, reproduce, market, sell, transfer, translate, decompile, disassemble, modify, adapt, reverse engineer, distribute, or prepare derivative works based upon any Products; nor may you allow others to do so. You may not share or disclose the Products with any third parties (including other vendors and service providers) or allow such third parties to gain access to or to make use of any Products without first obtaining the Company’s express written permission.
Should you continue to use any Products after receiving notice that your license to do so has been revoked (regardless of whether you dispute or contest the propriety of such revocation), or should you allow any unauthorized access to or use of any software or programming, the Company shall be entitled, in addition to all other remedies available to it, to do or obtain any or all of the following: (a) an injunction against you and any third party involved in such prohibited activity; (b) disable all Products; (c) enter any premises where the Products are located and take immediate possession thereof, without notice to you, and without a need to make a demand or obtain any court order; (d) recover from you an amount equal to the revenue that the Company and its affiliates would have received under the Agreement and any other breached agreements, with such amount to be determined by the Company based upon the historical average of such revenue on a monthly basis multiplied by the number of months remaining in the then current term of the Agreement and any other breached agreements; and (e) recover from you an amount equal to all revenue that you and/or any third party received as a result of such prohibited activity.
With respect to any software Product (“Software”) that requires a USB License Key (“Key”), you shall receive one Key as part of the installation, and you shall be permitted to purchase a second Key upon the return of a non-functioning Key, but you shall be required to pay for a new Software license if your original Key is lost or destroyed. Upon termination of your license, or your discontinuation of use of the Software, you must return all Keys to the Company.
All Software and any accompanying materials are provided with Limited Rights and Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data and Noncommercial Items (Nov 1995) clause at DFARS 252.227-7013, set forth in subparagraph (b)(3) Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause at DFARS 252.227-7014, or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Contractor/manufacturer is HungerRush, Inc., 1315 W. Sam Houston Pkwy North, Suite 100, Houston, Texas 77043
The Company owns various trademarks, trade names, copyrights, patents, and trade secrets, and you shall, in good faith, take all steps that you consider to reasonably necessary, and any additional steps that may reasonably be requested by the Company, to secure and preserve the Company’s right and title to such trademarks, trade names, copyrights, patents, and trade secrets. Licensee shall not provide or otherwise make available the Software, including all flow charts, logic diagrams, or source codes, in any form, to any other person without the express written consent of The Company. Use of the the Company logo or federally registered trademark is strictly prohibited.
The Company provides hardware, software, technical and other customer support through its customer support department and charges an hourly fee for such services. Some services are available during regular business hours and some services are available 24 hours a day, seven days a week. The Company reserves the right to periodically review, determine and change, in its discretion, whether, when, and how it shall provide such services, and what, if anything, it shall charge for such services.
Some Products capture, store or transmit debit and credit card information or other information or data belonging to you and/or to your customers that may be confidential, proprietary, private, or otherwise protected or worthy of protection, and third parties may attempt to obtain such information and data by hacking into and/or otherwise accessing the Products. Also, your use of some Products may be restricted or otherwise governed by federal, state, and local laws, or applicable industry rules. You are solely responsible, and the Company is not responsible, for ensuring that the Products, and any information and data that they capture, store, or transmit, are adequately protected, and secured from unauthorized access by such third parties, and that your use of such Products complies with all applicable laws and rules. For example, and without limitation, you are solely responsible, and the Company is not responsible, for: a) properly and securely backing up, archiving and storing information and data that is captured, stored or transmitted by the Products; (b) implementing, maintaining and monitoring security protocols, methods and systems to prevent, detect and remedy unauthorized attempts to access the Products; (c) using the Products in compliance with the Americans with Disabilities Act (“ADA”), the Telephone Consumer Protection Act (“TCPA”), the California Consumer Privacy Act of 2018 (if applicable) (“CCPA”), the Payment Card Industry Data Security Standards (“PCI-DSS”) and Payment Application Data Security Standards (“PA-DSS”), and all other applicable laws and rules; and (d) developing, implementing and enforcing such security policies and procedures for the use of computers and computerized systems as are necessary to prevent security breaches, viruses, malware and other threats, including those associated with the use of the internet.
If the Agreement provides for you to receive training, the Company’s sole obligation shall be to provide a trainer that it selects for the designated number of hours, if any, that are set forth in the Agreement, and the Company does warrant or guarantee that all or any of the trainees shall, after such period of training, be certified or able to use the Products properly or efficiently. At your request, the Company may provide additional training beyond the number of hours stated in the Agreement; with such training provided, and to be paid for by you, at the Company’s then-prevailing rates for training.
The Company intentionally prices its Products lower than it would otherwise do based upon the understanding that you will enter into an agreement to process your credit and debit card transaction pursuant to a processing agreement with the Company (if the Company is a Payment Facilitator) or with a third-party payment processor (“Processor”) to which you are referred by the Company. The Company is an intended beneficiary of any agreement between you and the Processor, and receives payments from the Processor for so long as you process transactions with it. Thus, separate and apart from your contractual obligations to the Processor, you shall process all card transactions with the Processor for the longer of the term of the agreement between you and the Processor and the term of the Agreement between you and the Company. Should you fail to do so, then you shall compensate the Company for the loss of payments that it would have received from the processor during the aforementioned time period. Because that amount is not readily ascertainable, it is reasonably approximated and liquidated by taking the average of the monthly payments that the Company received from the processor with respect to each of your stores during the 12 months (or fewer, if less than 12 months of history exist) preceding the failure and multiplying those average amounts by the number of months remaining in the then longer of the remaining term of the agreement between you and the Processor and the then remaining term of the Agreement between you and the Company. The resulting products of such multiplication for each store shall then be added together, and the resulting sum shall be due and payable by you to the Company in a lump sum within 10 days after the time that you cease to process with the Processor.
Payments owed by you to the Company, as well as all returned Products and notices from or by you to the Company shall be delivered to the Company’s office located at 1315 West Sam Houston Parkway North, Suite 100, Houston, Texas 77043, or such other location as the Company designates in writing. Should you fail to timely pay any amount that is due and owing, or should you otherwise breach, be in default under, or prematurely terminate an Agreement with the Company, or an agreement with a Processor to which the Company is a third party beneficiary, then your license to use all Products shall be immediately and automatically revoked, and the Company may enter any premises where the Products are located and take immediate possession thereof, without notice, and without a need to make a demand or obtain any court order. Additionally, the Company may collect any or all sums that you may owe by any means available, including, without limitation: a) from payments or receivables that are due to you from a Processor or other third parties; b) via an automated clearinghouse transaction with any bank or financial institution at which you have an account. In this regard, you expressly direct and authorize the Processor and all such third parties to pay the Company directly from any payments or receivables that may be due to you from them, and you expressly release and hold them harmless for acting in conformity with this directive and authorization. You further grant to the Company a security interest in all Products that are provided to you, as well as in all other accounts, receivables and other assets described above, to secure your obligations referenced above, and you agree that the Company may take such actions to perfect and protect such interest as they deem necessary and appropriate.
The Company’s failure or inability to collect, or receive, any payments that are owed by you under the Agreement shall not constitute a waiver or release of your obligation, and you shall make such delinquent payments promptly (within 3 days) of being notified that they are owed.
The Agreement, and any authorizations or licenses conferred thereby, is executory in nature within the meaning of the US Bankruptcy Code, and your status as a debtor in any bankruptcy proceeding shall not preclude the termination of your right to use any Products, including software and programming, upon your default. The foregoing rights and remedies are not exclusive, and the Company shall also have, and may exercise at any time, all other rights and remedies that are or may be available to them at law or in equity, including, but not limited to, the right to obtain temporary and permanent injunctive relief.
You shall indemnify, and hold harmless the Company, and all persons affiliated with the Company, from and against any and all claims, demands, actions or the like brought by third parties, in law or in equity, for damages, harm, expenses, losses, costs or other relief arising out of, or connected in any way, with your possession and/or use of the Products. Your indemnity obligation shall apply notwithstanding any alleged, or actual, negligence, gross negligence, contract breach or other wrongdoing or misconduct on the part of the Company or any other indemnified person or entity.
All Products are provided by the Company “as is,” and except as stated in these Terms, or otherwise agreed, the Company makes no express, implied, or other representations, warranties, or guarantees of any kind, whether written or oral, or based upon statutory or common law, about any of its Products. This includes, without limitation, any warranty of merchantability, quality, non-infringement, accuracy, or suitability or fitness for a particular purpose. Rather, the Company expressly disclaims these and all other warranties, including those that arise from statute, common law, contract, course of dealing, course of performance and usage of trade. If, and only if, your Agreement includes a repair or replacement warranty, the Company shall, for the agreed upon time period, repair or replace any Product that becomes defective in material or workmanship at no cost to you; provided that: a) you do not owe the Company any money and are not otherwise in breach of the Agreement; b) the Product was not damaged and did not became defective, in whole or in part, because of an act of God, or because of conduct by you, your agents, or any third party; and c) the repair or replacement, if any, shall be accomplished in the manner that the Company determines to be most appropriate and efficient. Further, the Company shall not be responsible, or liable to you, or to any other party, for, or because of, any: a) loss of profits, loss of use, or indirect, incidental consequential, economic, punitive or exemplary damage; b) loss, corruption, or interception of any data or information belonging to you or to your customers; c) failure of the Products to work or to comply with any applicable governmental or industry standards.
The Company is headquartered in Harris County, Texas, and that is where: a) the Agreement has been entered into by the Company; and b) substantial performance under the Agreement by the Company and by both you shall take place. Thus, without regard to conflict of laws principles, the laws of the State of Texas shall apply to and govern the Agreement, all interpretations of the Agreement, and any lawsuit, claim, demand, dispute, or controversy, whether in contract, tort or otherwise (“claim”) that arises out of or relates to the Agreement or the relationship of the parties to the Agreement. Further, the exclusive venue for resolving all claims is, and shall be, the federal and state courts located in the State of Texas, and to the extent permissible and enforceable, those that have jurisdiction over Harris County, Texas. Both you and the Company expressly consent to the exclusive jurisdiction and venue of such courts, agree to submit to the jurisdiction of such courts, and waive any right to challenge the jurisdiction or venue of such courts.
Before commencing any lawsuit, you shall attempt to resolve any claim against the Company by providing the Company with written notice of your claim in sufficient detail to apprise the Company of your claim, and then engaging in good faith negotiations. The Company shall endeavor to provide similar notice before commencing any lawsuit, unless it believes, in its discretion, that the filing of a lawsuit seeking equitable and/or legal relief is necessary to protect its business interests; in which case the Company will engage in good faith negotiations with you upon your request after the filing of such a lawsuit. Should the Company take any legal action against you to enforce or protect its rights under the Agreement, then you shall, upon demand, and without the necessity of the Company obtaining a final judgment, reimburse the Company for all expenses that it has reasonably incurred in such legal action, including, without limitation, attorneys’ fees and court costs.
The Company may assign its rights and obligations under the Agreement when, and as, it chooses However, you may not assign your rights and obligations under any Agreement with the Company without the express written consent of the Company.
If a court of competent jurisdiction holds any provision of any Agreement to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of any Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof. No waiver shall be effective unless made in writing and signed by the waiving party.
All determinations that are required or permitted to be made by a party under the Agreement shall be made in good faith, but at the sole discretion of the party making the determination, and shall not be subject to further review, including judicial review, except for bad faith.
Unless otherwise agreed, all notices required or allowed hereunder shall be in writing and shall delivered by commercial courier or by US mail with a delivery receipt.