Last updated: January 18, 2022.
HungerRush TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) ARE APPLICABLE TO ALL AGREEMENTS BETWEEN YOU AND THE COMPANY (DEFINED BELOW) AND WILL AFFECT YOUR RIGHTS AND OBLIGATIONS
The Terms are an integral part of and are incorporated by reference into all sales, subscription, service and other agreements that have been or are entered into between a Merchant and HungerRush, LLC and any affiliates of HungerRush, LLC, including, but not limited to, Order Inc. d/b/a OrdrAI and Menufy.com, LLC d/d/a Menufy (HungerRush, LLC and its affiliates are hereby collectively referred to as “HR” or “Company”). As used herein “you” refers to the person or entity that enters into an agreement with the Company, and all legal affiliates of that person or entity.
An agreement between you and the Company may include a written quote, bid or proposal that is signed or accepted by you, as well as written forms that are signed or accepted by you relating to delivery and installation (“D&I”), support services, subscriptions, software licenses, leases, card transaction processing, financing, and cash advances (collectively “Agreement”). In no event shall any product or service descriptions or other product, promotional, marketing, advertising, or similar materials constitute an Agreement or part of an Agreement. No Agreement is binding upon or enforceable against the Company, 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 a proposed Agreement if you sign it or if you accept or use any Products or Services (defined below) that are provided to you under any proposed Agreement.
In the event of a conflict between these Terms and other provision of an Agreement, the price, product and temporal contract terms of a quote, bid or proposal shall control, but these Terms shall control over all other provisions unless such other provisions specifically states that otherwise. 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 being published, that you do not accept the revised Terms. The Company may also revise the prices for its Products and Services (defined below) at any time after the first year of the initial term of your Agreement by providing you notice thereof, 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 notice of non-acceptance of any revised Terms or pricing, 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 of non-acceptance 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 Services, and in entering into an Agreement to acquire the right to use Products and Services, 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.
Except for Products or Services that have been purchased and fully paid for by you: a) all equipment, hardware, software, programming, support, training, card transaction processing, and other products and services provided to you by the Company (“Products and Services”) 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 all Products and Services for the entirety of term of the Agreement; c) the Company shall, at all times, retain exclusive ownership of the Products and Services, and shall enjoy all rights incident to such ownership (including the right to inspect, exchange and take possession of the Products and Services); d) you shall not receive any free Product or Service 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 initial term of your Agreement shall commence on the earlier of the date when the Products or Services are deployed (i.e., completion of a process whereby the Products and Services and installed and configured, the agreed upon training is provided by the Company, and the Products and Services are made accessible to and usable by you in the normal course of business) or the date when the Products and Services are first scheduled to be deployed; and h) the term shall automatically renew for successive 3 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 and Services covered by the Agreement within 10 business days of the end of the then current term.
The price terms in an Agreement or proposed Agreement do not include programming (e.g., 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), training, or support services; all of which are provided separately for a separate fee.
A deployment schedule for all Products and Services shall be agreed upon at the time of the Agreement or shall be determined by the Company in its discretion in the absence of an agreed upon schedule. All costs associated with deployment, including travel expenses incurred by Company personnel, shall either be paid directly by you or shall be promptly reimbursed by you to the Company if the Company initially pays those costs. If you cancel a scheduled deployment, you shall: a) pay for any Products and Services that have already been shipped; (b) reimburse the Company for all costs that it has incurred in connection with the scheduled deployment; and c) pay a cancellation/rescheduling fee of $500.
If your Agreement requires emergency, urgent or expedited handling of any Product or Service, 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 expedited Product or Service (up to maximum of $500). If any Product or Service is returned to the Company after delivery, a return fee of 20% of the cost of the Product or Service will be imposed by the Company, and if the Company determines, in its sole judgment, that the Product or Service has been used, the Company may impose a usage fee of up to 100% of the list price of the Product or Service. You shall promptly pay all such fees upon being notified that they are being imposed.
If any Product or Service is to be delivered to you via commercial shipper, you bear all risk of loss, shortage, or damage to the Product or Service from any cause whatsoever once the Product or Service is placed into the hands of the shipper. Upon pre-deployment delivery of any Product or Service to you, you must inspect the Product or Service and are deemed to have found the Product or Service to be undamaged unless you deliver written notice to the contrary to the Company within 3 days after delivery of the Product or Service, and upon deployment of any Product or Service, you are deemed to have found the Product or Service to be complete and in good working order unless you deliver written notice to the contrary to the Company within 3 days after deployment of the Product or Service.
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 and Services, 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 and Services; (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 and Services; (d) appropriate measures are implemented to secure and to prevent unauthorized access to any Products and Services that are installed or used, and all data that will pass through, be generated by, or stored by such Products and Services; (e) appropriate measures are implemented to properly and securely back up and archive data from the Products and Services on a periodic basis; (f) all Products and Services 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 and Services, 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 and Services; 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 and Services in accordance with the deployment schedule but shall not be responsible for any delay 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 Deployment date and obtain a refund of any payment that you have previously made for the undelivered and uninstalled Products and Services.
You must take all reasonable and necessary precautions to safeguard and protect the Products and Services that are provided for you to use pursuant to any Agreement, and you must reimburse the Company for the full list price of any Products or Services that are damaged while in your custody and control.
All Products and Services, 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 Services, and the Company reserves all legal and beneficial ownership in and to the Products and Services 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 and Services; nor may you allow others to do so. You may not share or disclose the Products and Services 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 and Services without first obtaining the Company’s express written permission.
Should you continue to use any Products and Services 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 and Services; (c) enter any premises where the Products and Services 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.
The Company owns various trademarks, trade names, copyrights, patents, and trade secrets (“Company IP”), and you shall not use, or disclose to third parties, any of the Company’s IP, and you shall, in good faith, take all steps that are reasonably necessary, and any additional steps that may reasonably be requested by the Company, to secure and preserve the Company IP.
The Company provides technical and other customer support service 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 and Services 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 and Services. Also, your use of some Products and Services 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 your use of such Products and Services complies with all applicable laws and rules, and that any information and data that the Products or Services capture, store, or transmit while being used by you are adequately protected, and secured from unauthorized access by such third parties. 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 and Services; (b) implementing, maintaining and monitoring security protocols, methods and systems to prevent, detect and remedy unauthorized attempts to access the Products and Services; (c) using the Products and Services 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 not warrant or guarantee that all or any of the trainees shall, after such period of training, be certified or able to use the Products and Services 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 prices its Products and Services with the understanding that you will enter into an agreement to process your credit and debit card transaction pursuant to a processing agreement (“Processing Agreement”) with a payment processor (“Processor”) that is either the Company or a third-party that is approved by the Company, and the Company is a direct or a third-party beneficiary of the Processing Agreement. You must process all of your card transactions under the Processing Agreement for the longer of the term of the Processing Agreement (including renewals) and the term of the Agreement between you and the Company (including renewals). Should you breach that obligation, you will cause damage to the Company equal to the commissions, fees, and other payments that the Company would have received related to your card transaction processing activity (“Payments”). Because the amount of those Payments are not readily ascertainable and calculable, you agree that such damages are reasonably approximated and liquidated to be equal to the average of the monthly Payments that the Company received with respect to the processing activity at each of your stores during the 12 months (or fewer, if less than 12 months of history exist) preceding the breach and multiplying those average amounts by the number of months remaining in your obligation described above with respect to each store. The entirety of that liquidated damage amount shall be due and payable by you to the Company, without the necessity of a demand, within 10 days after the date of your first breach of the above-referenced obligation.
Payments owed by you to the Company, as well as all returned Products and Services 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 a Processing Agreement to which the Company is a third-party beneficiary, then your license to use all Products and Services shall be immediately and automatically revoked, and the Company may enter any premises where the Products and Services 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 agreed or otherwise lawful 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 and Services 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, or to enforce any other provision of the Agreement, shall not constitute a waiver or release of your contractual obligation, and you shall immediately remedy any breach, including making any delinquent payments, within 10 days after being notified to do so by the Company.
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 and Services, 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 and Services. 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.
Except as provided in this Section, all Products and Services are provided by the Company “as is,” and 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 and Services. 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 and Services 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.