HUNGERRUSH, LLC TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) ARE A PART OF YOUR AGREEMENT WITH THE COMPANY AND WILL AFFECT YOUR RIGHTS AND OBLIGATIONS
1. These Terms are an integral part of, and are incorporated by reference into, the agreement between you and HungerRush, LLC and any affiliates of HungerRush, LLC (HungerRush, LLC and its affiliates are hereby collectively referred to as “the Company”). Your agreement to these Terms is conclusively presumed from your acceptance and use of any Products provided to you under any agreement between you and the Company.
2. The agreement between you and the Company may also include any quotes, bids, delivery and installation forms, service contracts, subscription agreements, software license and/or maintenance agreements, leases, loans, processing agreements, cash advance agreements, promissory notes, security agreements, financing statements or other writings that are issued or signed by an authorized officer or agent of the Company, and countersigned or otherwise accepted by you (collectively the “Agreement”). However, the Agreement does not include promotional, marketing, advertising, product description, or similar materials.
3. The provisions of the Agreement may not be waived or modified by the Company except in a written document signed by an authorized officer or agent; except that these may and shall be superseded if the Company publishes new, amended or revised Terms at www.HungerRush.com/terms, and you do not provide written notice within 15 business days of such publication that you do not agree to such new Terms. Should you provide such notice, the most recent form of these Terms to which you did not object shall remain part of the Agreement. In the event of a conflict between these Terms and any other document that comprises a part of the Agreement, these Terms shall control unless the conflicting provision specifically states to the contrary.
4. You affirm and acknowledge that: (a) neither the Company nor anyone affiliated with the Company has made any representations or promises to you concerning the Agreement, or the subject of the Agreement; (b) you have relied solely upon the literal terms of the Agreement in deciding to enter into it, and not upon any other representations or promises concerning the Agreement, or the subject of the Agreement; and (c) you have not relied upon any promotional, marketing, advertising, product description or similar materials in deciding to enter into the Agreement.
5. Unless otherwise stated in the Agreement, all equipment, hardware, software, programming, and other products and services (“Products”) provided to you by the Company are provided for you to use on a subscription basis, and you shall pay, in addition to any upfront and D&I fees, the agreed upon monthly fee for the entirety of term of the Agreement. If no initial term is stated in the Agreement, then the initial term shall be for 36 months. The term shall commence on the day that the Products are delivered to your location, and shall automatically renew for successive one 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. Should the Company fail or not collect, or receive, any payments that are owed by you under the Agreement, you shall make such payments promptly (within 3 days) of being notified thereof, and you authorize the Company to utilize all collection methods available under the Agreement to do so.
6. The Company shall, at all times, retain sole and exclusive ownership of the Products provided to you, and shall enjoy all rights incident to such ownership; including the right to inspect, exchange and take possession of the Products whenever it determines that it is appropriate to do so. You must take all reasonable and necessary precautions to safeguard and protect the Products that are provided for you to use, and you must reimburse the Company for the full cost of any Product that is damaged while it is in your custody and control.
7.A delivery and installation (“D&I”) date for the 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 date. Unless otherwise stated in the Agreement, all costs associated with shipping the Products to an installation location, and all travel expenses incurred by the Company’s installation personnel, shall be borne by you, and shall be payable at, or before, the time of installation. If any Products are delivered and installed on an expedited basis, you shall pay an expediting fee equal to 5% of the total of the monthly fees for the initial term. Once a D&I date is set, you may only reschedule if: (a) you provide 15 working days of notice; (b) a new date is mutually agreed upon; (c) you pay for any Products that have already been shipped; and (d) you reimburse the Company for all costs and expenses that it has incurred in connection with having prepared for the previously scheduled date. For and subsequent rescheduling, you must also pay a cancellation/rescheduling fee of $500.
8. The Company may choose to delay its performance under, or to terminate, the Agreement if: (a) you become the subject of any bankruptcy, insolvency or other legal proceeding; (b) you breach any of the terms of the Agreement; or (c) you assign or attempt to assign the Agreement to a third party without the Company’s advance written approval. Otherwise, the Company shall endeavor to deliver and install all Products on or before the D&I date, but shall not be liable for any delay, or any resulting damages, that is not caused solely by the Company’s own negligence. Should a D&I 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 made for the undelivered and uninstalled Products.
9. You affirm and acknowledge that the Company is not responsible for, and that you are solely responsible for, determining and ensuring that: (a) the installation location has environmental and operating conditions, and infrastructure, that are necessary and suitable for installation and use of the Products, including, without limitation, 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 of the Products at the installation location; (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/or performance of the Products; (d) appropriate measures are implemented to secure and to prevent unauthorized access to any Products that are installed, 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.
10. All risk of loss, shortage or damage to the Products during transit with a commercial shipper shall be borne solely by you, even if the Company engages the shipper and initially pays for such costs. Upon delivery of the Products to your installation location, you must inspect them, and you shall be deemed to have accepted them to be in good working order, and to have waived any claim for loss, shortage or damage, if you fail to deliver written notice to the Company, specifying any loss, shortage or damage to specific Products, within 3 business days after taking delivery of the Products.
11. Your authorization and license to use the Products is nonexclusive, nontransferable, and revocable by the Company at its discretion, and only entitles you, and no one else, to use the Products in the location identified in the Agreement, in the manner contemplated by the Agreement, and subject to the terms of the Agreement. You may not reverse-engineer, decompile, modify, or disassemble any Products, nor may you allow others to do so or to otherwise access or use the Products. Your authorization and license to use the Products shall be automatically and immediately terminated if you: (a) fail to pay any sums owed to the Company; (b) are in breach of the Agreement; or (c) are in breach of any other agreements between you and any affiliate of the Company, any software developer whose software is included as a part of the Products, or any card transaction processor to whom you have been referred by the Company. You may not continue to use any of the Products after your authorization and license to do so has been terminated; regardless of whether you dispute or contest the propriety of such termination. Should you engage in any of the aforementioned prohibited activities, the Company shall, in addition to all other remedies that may be available to it, be entitled to or to do any or all of the following: (a) obtain 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; (e) recover from you an amount equal to all revenue that you received as a result of such prohibited activity; and (f) recover from you an amount equal to all revenue received by any third party as a result of such prohibited activity.
12. Unless otherwise stated in the Agreement, you shall not receive any Product upgrades or enhancements, and you must pay the prevailing rate for any and all support that you request and that the Company provides to you.
13. Some of the Products capture, store or transmit information or data belonging to you and/or to your customers that is confidential, proprietary, private, or otherwise protected or worthy of protection, and hackers and other unscrupulous third parties will attempt to obtain such information and data by hacking into and/or otherwise accessing the Products. You affirm and acknowledge that the Company is not responsible for, and that you are solely responsible for, ensuring that the Products, and any information and data that they capture, store or transmit, are adequately protected and secured from such third parties. In this regard, you specifically affirm and acknowledge that: (a) you are solely responsible for properly and securely backing up, archiving and storing information and data that is captured, stored or transmitted by the Products; (b) the Products are capable of being accessed remotely by telephone, internet and other means, and you are solely responsible for implementing, maintaining and monitoring security protocols, methods and systems to prevent, detect and remedy unauthorized attempts to access the Products; (c) you are solely responsible for using the Products and the system that they comprise in compliance with the Payment Card Industry Data Security Standards (“PCI-DSS”) and Payment Application Data Security Standards (“PA-DSS”); and (d) you are solely responsible for 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.
14. During the initial term stated in the Agreement (but not any renewal term), and provided that you do not owe the Company any money and are not otherwise in breach of the Agreement, the Company shall repair or replace any hardware or software Product that becomes defective in material or workmanship. The Company shall have no such obligation, however, if it determines that the Product was damaged or 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. During the first year of the initial term stated in the Agreement, the repair or replacement of defective Products shall be accomplished, whenever reasonably and economically feasible, via next day shipping paid for by the Company. Thereafter, the repair or replacement shall be accomplished in the manner that the Company determines to be most appropriate and efficient. With respect to training, the Company’s sole obligation shall be to provide a trainer that it determines to be qualified for the designated number of hours 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.
15. All Products are provided by the Company “as is,” and other than the commitment referenced above (in Section 14) to repair or replace defective hardware and software Products, the Company makes no representations, warranties or guarantees of any kind, whether written, oral, express or implied, or based upon statutory or common law, about any of its Products, including, without limitation, any warranty of merchantability, quality, non-infringement, suitability or fitness for a particular purpose; and the Company expressly disclaims any and all warranties, including those that arise from statute, common law, contract, course of dealing, course of performance and usage of trade. Additionally, 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 or interception of data or information belonging to you or to your customers; (c) failure of the Products to accurately process card, or other, transactions; and (d) failure of the Products to comply with any applicable governmental or industry standards.
16. The Company may refer you to a preferred payment processor and may help to have you sign a processing agreement with that processor. The Company is an intended beneficiary of the processing agreement between you and the processor and may use the processor to help collect monies that you owe to the Company. Separate and apart from your obligations under the processing agreement, you agree to process all card transactions with the preferred processor for the duration of the Agreement, including any renewal terms. Should you fail to do so, then you shall owe the Company an amount equal to the total payments that the Company would have received from the processor during: (a) the remaining term of the processing agreement; and (b) any additional period when the Agreement is still in effect. The amount of the total payments that the Company would have received shall be determined by the Company based upon the average of the monthly payments that it received per store during the preceding 12 months (or fewer, if less than 12 months of history exist), multiplied by the number of stores no longer using the processor. Any amount owed under subsection (a) above is due and payable in a lump sum at the time you cease to process with the preferred processor, and any amount owed under subsection (b) above is due and payable each month, in advance, during the additional period when the Agreement is still in effect.
17. All payments, 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 directs in writing. 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 third parties, including banks, financial institutions, and card transaction processors; and (b) by an automated clearinghouse transaction with any bank or financial institution at which you have an account. In this regard, you hereby irrevocably authorize the Company to use such collection mechanisms, and you instruct and authorize all third parties to, upon demand from the Company, pay the Company any demanded sums from any payments or receivables that may be due to you by such third parties, and you expressly release and hold all such third parties harmless for acting in conformity with this 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 under the Agreement, and you agree that the Company, and its affiliates, may take such actions to perfect and protect such interest as they deem necessary and appropriate.
18. The Agreement, and any authorizations and licenses conferred by it, are 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 authorization and license to use any Products in the event of a breach or default by you under the Agreement.
19. The Company has, and may exercise at any time, all rights, privileges and remedies that are available to it at law or in equity, including, but not limited to, the rights to obtain injunctive relief, to obtain and collect damages, and to take control over and/or repossess Products that are owned by the Company. Should the Company take any action to enforce their rights under the Agreement, then you shall, upon demand, and without the necessity of a final judgment, reimburse the Company for all expenses that it incurs as a result thereof, including, without limitation, attorneys’ fees and court costs.
20. You affirm and agree that you have, by agreeing to the Agreement, knowingly waived, released and assigned 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.
21. You shall indemnify, and hold harmless the Company, and all persons affiliated with it, 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 provided to you by the Company. 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.
22. The Agreement is entered into and shall be substantially performed in in Harris County, Texas. Thus, without regard to conflict of laws principles, the laws of the State of Texas shall apply to and govern all interpretations of the Agreement, and any 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. The exclusive venue for resolving all claims is, and shall be, the federal and state courts that have jurisdiction over Harris County, Texas, and both parties hereby consent to the exclusive jurisdiction and venue of such courts, agree to submit themselves to the jurisdiction of such courts, and waive any right to challenge venue. Prior to filing a lawsuit, the party asserting a claim must provide the other party with written notice of the claim, and then engage in face to face negotiations in Harris County, Texas between persons who are fully authorized to resolve the claim on behalf of their respective principals. If such negotiations are unsuccessful, the parties shall attempt to resolve the claim by engaging in mediation, utilizing a mutually agreeable mediator, in Harris County, Texas. In the event the parties are unable to resolve the claim through negotiation and mediation within a reasonable period of time after written notice of the dispute exists (such time not to be less than 60 days), then either party may file a lawsuit in a state or federal district court located in Harris County, Texas. Both parties hereby expressly waive any right to pursue a class action, and any right to a jury trial.
23. The Company may delay, defer or cancel its performance of its contractual obligations under the Agreement in the event of a war, riot, fire, explosion, flood, accident, sabotage, vendor disruption, inability to obtain materials or equipment, change of law, Act of God or other cause beyond its reasonable control.
24. Unless otherwise stated in the Agreement, all determinations that are required or permitted to be made by a party shall be made in good faith, but at the sole discretion of the party making the determination, and shall not be binding upon the parties and not subject to further review, including judicial review, except for bad faith.
25. All notices required or allowed hereunder shall be in writing and shall delivered by commercial courier or by US mail with a delivery receipt.
26. 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 the Agreement without the express written consent of the Company.
27. 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.
HUNGERRUSH SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“License”) is are an integral part of, and are incorporated by reference into, the agreement between you and HungerRush, LLC and any affiliates of HungerRush, LLC (HungerRush, LLC and its affiliates may be collectively referred to as “the Company”). Your agreement to this License is conclusively presumed from your acceptance and use of any Products provided to you under any agreement between you and the Company. In the event of a conflict between this License and any other document that comprises a part of the Agreement, the License shall control over everything else except the Terms, or unless the conflicting provision specifically states to the contrary.
1. GRANT OF LICENSE
Subject to all of the terms stated herein, and the terms of the Agreement, HungerRush hereby grants to Licensee, and Licensee hereby accepts from HungerRush, a non-exclusive, non-transferrable (except to authorized transferees) license to use the computer program(s) and documentation therefore (the program(s) and documentation being collectively referred to as the “Software”) that is specified in the Agreement.
2. USE OF SOFTWARE AND OTHER OBLIGATIONS
Licensee may use the Software only for the uses and applications, in the systems and configuration, and at the location(s), specified in the Agreement, and may only copy the Software once for back-up or archival purposes in support of the licensed use of the Software. If the Software requires a USB License Key (“Key”), only one such Key shall be provided to Licensee. If that Key becomes non-functional, Licensee shall be permitted to purchase another Key upon the return of the non-functioning Key. If the USB License Key is lost or destroyed, Licensee must purchase another full software license to use the Software. Upon termination of this License, or discontinuation of the Software use, Licensee must return all Keys to HungerRush. Licensee may not use, copy, distribute, sub-license, lease, sell, or transfer the Software in whole or in part; merge the Software with other programs; or modify the Software in whole or in part, except in strict compliance with the foregoing license. The foregoing prohibitions include, without limitation, a prohibition against translating, decompiling, disassembling, or creating derivative works of the Software.
3. TERM OF LICENSE
This License shall remain in effect until terminated or revoked, and for so long as Licensee complies with all of the terms stated herein, and all of the other terms of the Agreement, and shall automatically and immediately terminate if Licensee fails to comply with any such terms.
4. MAINTENANCE AND SUPPORT
HungerRush provides hardware, software, technical and other customer support through its customer support department. Some services are available only during regular business hours and some are available 24 hours a day, seven days a week. However, HungerRush must, and does, reserve 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.
5. DISCLAIMER OF WARRANTY
HUNGERRUSH MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS OR MERCHANTABILITY, REGARDING OR WITH RESPECT TO THE SOFTWARE, SUBJECT TECHNOLOGY, LICENSED PRODUCTS OR SUPPORT SERVICES. THIS INCLUDES, WITHOUT LIMITATION, DIRECT LOSS, LOSS OF BUSINESS OR PROFITS (WHETHER OR NOT THE LOSS OF SUCH PROFITS WAS FORESEEABLE, AROSE IN THE NORMAL COURSE OF THINGS OR CUSTOMER HAS ADVISED THIS COMPANY OF THE POSSIBILITY OF SUCH POTENTIAL LOSS), DAMAGE CAUSED TO CUSTOMER’S COMPUTER, COMPUTER SOFTWARE, SYSTEM AND PROGRAMS AND THE DATA THEREON OR ANY OTHER DIRECT OR INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES. THE SOFTWARE AND SERVICES PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED, OR STATUTORY.
6. LICENSEE’S RESPONSIBILITY
Licensee assumes all responsibility for the selection of the Software to achieve Licensee’s intended results, and for the use and results obtained therefrom.
7. COPYRIGHT, PATENT, TRADEMARKS
Licensee acknowledges and consents to the validity of HungerRush’s trademarks, trade names, copyrights, patents, and trade secrets. Licensee shall, in good faith, take all steps that it may reasonably be requested to take by HungerRush to secure and preserve HungerRush’s right and title to said copyrights and patents for the Software. 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 HungerRush. Use of the HungerRush logo or federally registered trademark is strictly prohibited.
8. U.S. GOVERNMENT RESTRICTED RIGHTS
The 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 – 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, LLC, 1315 W. Sam Houston Pkwy North, Suite 100, Houston, Texas 77043.
Licensee shall not assign the License to another party without the express written consent of HungerRush, whose consent will not be unreasonably withheld. If such consent is granted, the assignee shall be considered the Licensee hereunder for all purposes in the place and stead, and to the exclusion of the original Licensee.
10. OWNERSHIP OF SOFTWARE
Licensee has been granted a license to use the Software, but has not acquired any right, title, or interest in or to the Software whatsoever. HungerRush reserves all such legal and beneficial ownership in and to the Software, together with all modifications, updates, upgrades, enhancements, and improvements thereto, whether implemented by HungerRush, Licensee, or any third party. Licensee shall not have the right to (and Licensee agrees that it shall not) copy, reproduce, market, sell, transfer, translate, decompile, disassemble, modify, adapt, reverse engineer, distribute, or prepare derivative works of the Software, except as expressly authorized herein or as authorized by applicable law without possibility of waiver. Any third-party licensor of material evidenced by or embodied in the Software shall be a third-party beneficiary under this Agreement. “Intellectual Property Rights” includes, collectively, any patent, patent right, trademark, service mark, trade dress, logo, trade name, copyright, mask work, trade secret, confidential information, or other proprietary right. Licensee shall not, and shall not permit others, to remove, alter, deface or modify the proprietary rights, copyrights, trademark or similar notices contained in or on the Software.
11. SURVIVAL OF OBLIGATIONS
Licensee agrees that its obligations hereunder extend past the termination of this License until the information protected herein is in the public domain.
Licensor and Licensee are independent principals in all relationships and actions under and contemplated by this Agreement. This Agreement shall not be construed to create any employment, partnership or joint venture, or agency relationship between the parties.
13. FORCE MAJEUR
Neither party shall be liable for any failure to perform or for delay in performance of its obligations hereunder caused by circumstances beyond its reasonable control, including, but not limited to, communications systems failures or outages, fire, storm, flood, earthquake, explosion, lighting, riot, acts of vandalism, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, transportation embargoes, acts of God, acts of any government or agency thereof or judicial action. If such event lasts longer than thirty (30) days, either party may terminate this Agreement without further notice.