ZOOM ORDERING, INC. TERMS OF SERVICE AGREEMENT

Thank you for choosing Zoom Ordering, Inc.’s restaurant online ordering services to power your restaurant’s online storefront. Below are important legal terms that apply to businesses that use our services. These terms are necessary in order to make our services available to you, to offer protections to both you and us, and to make the services more enjoyable for everyone.

PURPOSE

Zoom Ordering™ Services are designed to empower restaurants and food services to easily create a beautiful and engaging online ordering presence for themselves, allowing them to manage and promote their business, list and update their menus online, and most importantly to sell directly to customers online. Zoom Ordering™ Services are defined as Zoom Ordering, Inc.’s restaurant online ordering services, the ZoomOrdering.com website and/or any other services, applications and features offered by Zoom Ordering Inc. with respect thereto. Zoom Ordering™ Services provides our clients with numerous tools and features for creating and publishing stunning online stores, mobile apps and other applications (collectively – “Client Website(s)”) – by utilizing the client’s own content together with content, features and tools offered by Zoom Ordering, Inc. and others via our services.

LEGAL AGREEMENT

These Zoom Ordering, Inc. Terms of Service (“Terms of Service”), together with our Privacy Policy available at http://zoomordering.com/privacy-policy/ (“Privacy Policy”), each as may be amended from time to time by Zoom Ordering, Inc. and presented on the ZoomOrdering.com website, are collectively referred to as the “Agreement”. The Agreement sets forth the terms and conditions applicable to each client of the Zoom Ordering™ Services ).

This Agreement constitutes a binding and enforceable legal contract between Zoom Ordering, Inc. (also referred to as “us” or “we”) and you (“Client” or “you”). By completing the signup process and by using and continuing to use the Zoom Ordering™ Services, you accept and agree to all of the terms and conditions set forth in this Agreement. Please read the Agreement carefully and consult legal and/or other advisors as you deem appropriate.

You may use the Zoom Ordering™ Services only if you fully agree to the terms of the Agreement. If you do not read, fully understand and agree to the terms of this Agreement, you must immediately discontinue all use of the Zoom Ordering™ Services.

1. CLIENT ACCOUNT

1.1 In order to access and use certain sections and features of the Zoom Ordering™ Services, you must first register and create an account with Zoom Ordering, Inc. (“Client Account”). The individual creating a Client Account represents that he/she is authorized to enter into this Agreement on behalf of the Client.

1.2 It is your responsibility to control access to your Client Account and Client Websites through your password. We strongly encourage you to keep the log-in credentials of your Client Account confidential, and allow access only on a need-to-know basis to people you trust. Access to your Client Account or any of your Client Website settings allows changes to be made to your Client Website(s) and Client Account, and in doing so constitutes acceptance of any legal terms applicable at that time. All access to your Client Account and Client Websites will be deemed to have occurred on your behalf and in your name. You will be solely and fully responsible for all activities that occur under your Client Account and/or Client Websites (including adhering to any legal terms available therein) whether or not specifically authorized by you, and for any damages, expenses or losses that may result from such activities.

1.3 You must provide accurate and complete information when registering your Client Account and using the Zoom Ordering™ Services. You must provide valid contact and billing details, including your valid e-mail address.

1.4 We may use your e-mail address to identify and determine the actual and true owner of the Client Account and/or content submitted to us by Client for use in building the Client Website including to any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artwork, interfaces, text, and literary works (“Client Content”). We reserve the right to determine ownership to a Client Account, whether or not an independent investigation has been conducted by us. However, if we cannot (in our sole discretion) make such determination, we reserve the right to avoid doing so without liability to you or to any other party.

1.5 Zoom Ordering, Inc. will consider the owner of a Client Account, Client Website and/or Client Content created on or uploaded with the Zoom Ordering™ Services, to be the person or entity who has access to the e-mail address listed in Zoom Ordering, Inc.’s records for such User Account under which such Client Website or Client Content was created.

1.6 If any paid services were purchased via a User Account, Zoom Ordering, Inc. will consider the owner of such Client Account, Client Website and Client Content created thereunder to be the person or entity whose billing details were used to purchase such paid services (“Billing Party”). Notwithstanding the foregoing, if a Client Website was connected to an external domain name (either imported or purchased as part of certain paid services), and such domain’s registration information is publicly available via the WHOIS database provided on the www.whois.net website or on Zoom Ordering Inc.’s database, Zoom Ordering Inc. will consider the owner of such Client Website to be the person or entity registered as the registrant of such domain thereunder. In the event that an individual and an organization are both registered as the registrant or the registrant organization of such domain, Zoom Ordering, Inc. will consider the organization to be the actual owner of the domain, and therefore to be the owner of the Client Website connected to such domain. In the event the available information indicates there are different owners of the Client Website and the domain registration, Zoom Ordering, Inc. shall consider the person registered as the owner of the domain connected to the Zoom Ordering, Inc. Account to be the owner of the Client Website.

1.7 Notwithstanding the forgoing, Zoom Ordering, Inc., in its sole discretion, shall have the right to determine the ownership of Client Content and/or a Client Website in a different manner as set forth above.

2. CREDIT CARD PROCESSING

2.1 Zoom Ordering, Inc. uses the company Stripe, Inc. and Authorize.Net for processing of and payment for orders made through Zoom Ordering™ Services by Client’s customers (“End User”). Zoom Ordering, Inc. never stores full credit card details on its own systems. By becoming a Zoom Ordering, Inc. client, you must agree to Stripe’s Services Agreement (https://stripe.com/us/legal/) and the Stripe Connected Account Agreement (https://stripe.com/us/connect-account/legal) or the terms of Authorize.net (https://www.authorize.net/company/terms/), depending on which payment processor you choose to use on your Zoom Ordering account. When using Stripe, Inc., to process payments, your customers will be charged a $1.00 fee per order, which will be applied to any per-transaction fees charged by Stripe, Inc..  Zoom Ordering, Inc. is not responsible for paying any additional fees or commissions associated with your Stripe or Authorize.Net account; this is Client’s sole responsibility. Any quoted rates for our services are independent of any fees you are responsible for paying under your agreement with Stripe or Authorize.Net. 

3. SETUP, MAINTENANCE AND MANAGEMENT

3.1 If Client opted for Zoom Ordering, Inc. to set up its Client Website, we will set up the online and mobile ordering for the first location Client Website menu draft within thirty (30) business days from the date of the enrollment provided that Client timely provides information and corrections as follows. Client shall provide Zoom Ordering, Inc. with all information needed for setup within three (3) business days from date of enrollment. Initial setup of first location includes setting up Client’s location description, store hours, photos, phone number(s) et al. Client must notify Zoom Ordering, Inc. of any changes within 5 business days from the date when Client was first notified to review the Client Website.

3.2 The initial setup includes up to two revisions of the menu. Additional menu revisions during the initial setup, and any menu revisions requested after the initial setup on a pay-as-you-go basis, will be billed at $25 per menu page if provided in an editable text format, and $35 per page if submitted in a non-editable text format, such as photographic, faxed, scanned or hand-written format. The following formats are generally considered to be editable text format: Word (.doc, .docx), Excel (.xlsx, .csv), Text (.txt), Rich Text Format (.rtf), Pages (.pages), PDF (.pdf) and website links. However, all formats are subject to evaluation on a case-by-case basis for us to determine, in our sole discretion, if they are editable or non-editable. All materials, required information and files for setup must be submitted online via our form (http://zoomordering.com/forms/account-creation-questionnaire).

3.3 After setup is performed and Client Website is agreed by both parties to be in proper working condition, Client assumes all responsibility for managing its Client Website, unless Client opts into a Fully Managed package from Zoom Ordering, Inc. A “Fully Managed” package includes updating of the following: menu items and pricing, store description, contact information, hours of operation, store closings, replacing photos in existing layouts, coupon codes, and payment details. New designs, layouts, graphics, videos, animations, and logos are subject to additional charges. Alternately, Client can request these services on a pay-as-you go basis.

4. CLIENTS INTELLECTUAL PROPERTY

4.1 As between Zoom Ordering, Inc. and Client, Client shall own all intellectual property pertaining to Client Content.

4.2 Client hereby grants to Zoom Ordering, Inc. a royalty-free, irrevocable, non-exclusive, transferable and sub-licensable right and license to use your Client Content (in whole or in part) worldwide in order to provide you with the Zoom Ordering™ Services for as long as such services are provided. Unless you opt out, Client hereby grants Zoom Ordering, Inc. a royalty-free, irrevocable, non-exclusive, transferable and sub-licensable right to use Client’s company name, logos and any version of Client Website and Client Content or any part thereof solely for Zoom Ordering, Inc.’s marketing and promotional activities, online and/or offline, and to modify it as reasonably required for such purposes, and Client waives any claims against Zoom Ordering, Inc. or a third party acting on its behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that you may have in or to your Client Website with respect to such limited permitted uses.

4.3 Zoom Ordering, Inc. reserves the right to refuse to display information it believes to be illegal, false, derogatory, or offensive, or to infringe or misappropriate any proprietary, intellectual property, contract or tort right of any third party. Client represents that it owns or has the right to use via license Client Content included on the Client Website , and that it will hold harmless, protect and defend Zoom Ordering, Inc. from any and all claims, suits, and demands, including attorneys’ fees, due to or arising from the use of such Client Content.

5. ZOOM ORDERING INC.’S INTELLECTUAL PROPERTY

5.1 As between Zoom Ordering, Inc. and Client, Zoom Ordering, Inc. shall own all right, title and interest in and to the Zoom Ordering™ Services and the ZoomOrdering.com website, including without limit any and all copyrightable materials and any other content which is or may be subject to any intellectual property rights under any applicable law (including without limit any artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, the “look and feel” of the Zoom Ordering™ Services and the ZoomOrdering.com website, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered or patented and/or capable of being registered or patented (collectively, “Intellectual Property”), and any derivations thereof, are owned by and/or licensed to Zoom Ordering, Inc.

5.2 Subject to your full compliance with these Terms of Service and timely payment of all applicable Fees, Zoom Ordering, Inc. hereby grants you, upon creating your Client Account and for as long as Zoom Ordering, Inc. provides you with the Zoom Ordering™ Services or sooner at Zoom Ordering, Inc.’s sole discretion, a non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the Zoom Ordering™ Services and the ZoomOrdering.com website , solely for the purpose of generating and displaying your Client Website to End Users and offering your products and services therein, solely as expressly permitted under these Terms of Service, and solely within the Zoom Ordering™ Services. Client agrees not to use the Zoom Ordering™ Services or the ZoomOrdering.com website for any other purpose.

5.3 The Zoom Ordering Terms of Service do not convey any right or interest in or to Zoom Ordering, Inc.’s Intellectual Property (or any part thereof), except for the limited license expressly granted above. Nothing in these Terms of Service constitutes an assignment or waiver of Zoom Ordering, Inc.’s Intellectual Property rights under any law.

6. FEEDBACK

6.1 Zoom Ordering, Inc. appreciates hearing feedback from its clients in order to continually improve the experience for our clients and end users. If you provide us with any suggestions, comments or other feedback relating to the Zoom Ordering™ Services (whether existing, suggested or contemplated), which is or may be subject to any Intellectual Property rights (“Feedback”), such Feedback shall be exclusively owned by Zoom Ordering, Inc.. By providing such Feedback to Zoom Ordering, Client (1) agrees to assign and hereby assigns to Zoom Ordering, Inc. all right, title and interest in and to such Feedback, (2) explicitly and irrevocably waives any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback, and (3) agrees to execute documents, including without limit assignments, as necessary or useful for such purposes.

7. CHARGES AND FEES

7.1 Client agrees to pay by credit card and to have Zoom Ordering, Inc. automatically charge the monthly fee, plus any extra services requested and applicable taxes, at the rates in the Payment Schedule, as may be amended from time to time by Zoom Ordering, Inc. with thirty (30) days prior notice, in effect when the fees are incurred. Zoom Ordering, Inc. will start billing the monthly fee upon launch of Client Website. Zoom Ordering, Inc. will charge the fees then in effect, and may add or increase the fees by giving Clients sixty (60) days advance notice, unless Client has opted for a guaranteed rate for a set period of time, in which case such rate will apply for that period of time.

7.2 Client must provide Zoom Ordering, Inc. with valid credit card information and must promptly notify Zoom Ordering, Inc. of changes to the account holder name, account number, expiration date and billing address of Client’s designated card. Client must also promptly notify Zoom Ordering, Inc. if Client’s card is placed on hold by Client’s card issuer or canceled for any reason. Zoom Ordering, Inc. reserves the right to suspend or terminate Client Website without notice upon rejection of any card charges or if Client’s card issuer seeks return of payments previously made to Zoom Ordering, Inc. when Zoom Ordering, Inc. believes Client are liable for the charge(s). If Client is liable for the charge(s), a $30 reactivation fee per Client store location may apply to reactivate service. In addition, if the monthly service fee is more than thirty (30) days past due, Zoom Ordering, Inc. has the right to issue Client a $5 fee for each billing cycle that each monthly fee remains past due.

7.3 Client’s subscription will automatically renew, and Zoom Ordering, Inc. will charge Client’s credit card the fees in effect at that time, upon each expiration date of Client’s subscription, unless Client provides prior thirty (30) days written notice via our online form (http://zoomordering.com/contact/?type=billing) that Client has terminated this authorization or wishes to change Client’s designated card. The renewal charge will be the subscription price in effect at that time, unless Zoom Ordering, Inc. and Client have agreed otherwise in advance.

7.4 Client must notify Zoom Ordering, Inc. about any billing problems or discrepancies within thirty (30) days after they first appear on the bank or credit card statement from Zoom Ordering, Inc. or other billing company. Such notification shall be sent via our online billing form (http://zoomordering.com/contact/?type=billing). If Client does not bring any such problems or discrepancies to our attention within that thirty (30) day period, Client waives the right to dispute such problems or discrepancies.

8. CANCELLATION

8.1 Client may cancel use of Service by contacting Zoom Ordering, Inc. and submitting a cancellation request. However, the activation and setup fee is nonrefundable. Upon receipt of Client’s cancellation, Zoom Ordering, Inc. will promptly terminate Client’s access to the Client Account and Client Website. Client is and remains responsible for any charges already incurred up until cancellation, without proration for partial months, and for any unused portion of a discounted time subscription. If Client’s credit card provider issues a chargeback for any fees by Zoom Ordering, Inc. then Zoom Ordering, Inc. has the right to collect any fees, fines, and penalties brought upon by the chargeback from Client as well as the original fees. Zoom Ordering, Inc. also reserves the right to terminate Client’s subscription and/or discontinue Services at any time for any reason upon notice to Client. Zoom Ordering, Inc. shall have no responsibility to notify any third party of any suspension, restriction or cancellation of Client Website. Zoom Ordering, Inc. shall have no obligation to maintain any orders, reports, data, or other content in Client Website or forward any data to Client or any third party.

8.2 If Client cancels a package that was discounted under the terms of a certain time period commitment, a cancelation fee will be charged equal to the difference between the comparable non-discounted package and the discounted package for the period of time of use in full month increments.

9. FAIR USE POLICY AND PROHIBITED CONTENT

9.1 Zoom Ordering, Inc. shall have the absolute and unilateral right in its sole discretion to deny use of and access to all or any portion of the Zoom Ordering™ Services to Clients who are deemed by Zoom Ordering, Inc. to be using the Zoom Ordering™ Services in a manner not reasonably intended by Zoom Ordering, including without limit using prohibited content as set forth below, or in violation of law, including but not limited to suspending or terminating a Client’s license to use the Zoom Ordering™ Services .

9.2 Client may not use the Zoom Ordering™ Services or ZoomOrdering.com website for illegal activity and shall not provide, sell or offer to sell the following: controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information that violates another’s copyright, trademark, patent or other intellectual property rights; information used to illegally harm any people or animals; obscenity, pornography, nudity, sexual products, escort services or other adult content. Zoom Ordering, Inc. in its sole discretion shall determine if Client has violated this section. Zoom Ordering, Inc. will take down Client’s content in response to a Digital Millenium Copyright Act (DMCA) takedown notice and has the right to charge Client a fee for doing so.

10. LIMITATION OF LIABILITY

10.1 In no event will ZOOM ORDERING, INC. be liable for any LOST PROFITS or indirect, Incidental, consequential, special, punitive, or exemplary damages OR any loss of revenue, PROFITS, data or data use OR ANY BUSINESS INTERRUPTION arising out of this Agreement. Under no circumstance shall Zoom Ordering, Inc., its affiliates and its or their officers, directors, shareholders, employees, agents, contractors, successors or assigns be liable to Client or any third party for damages in excess of the amounts actually paid by Client to Zoom Ordering, Inc. in the past year.

11. DISCLAIMER OF WARRANTY

11.1 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT OR TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, ZOOM ORDERING, INC. DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ZOOM ORDERING, INC. DOES NOT GUARANTEE OR WARRANT THAT THE ZOOM ORDERING™ SERVICES or ZOOMORDERING.COM WEBSITE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.

12. INDEMNIFICATION

12.1 Client agrees to defend, indemnify and hold harmless Zoom Ordering, Inc., its affiliates, and its and their officers, directors, shareholders, employees, agents, contractors, successors and assigns from any and all claims, suits and demands, including attorneys’ fees, due to or arising from your use of the Zoom Ordering™ Services in breach of this Agreement or is infringing a patent, trademark or copyright or misappropriates a trade secret, and any other conduct related in any way to the Zoom Ordering™ Services , including but not limited to breaching any provision contained in these Terms of Service.

13. TERMINATION

13.1 If Client breach these Terms of Service, Client’s right to use the Zoom Ordering™ Services shall automatically terminate if Client fails to cure the breach within seven (7) calendar days after notice from Zoom Ordering, Inc., unless Client’s breach is due to violations in the event of unlawful use, or violation of section 9, in which case termination will be without notice and without any cure period.

14. MODIFICATION

14.1 These Terms of Service, the Privacy Policy and other items incorporated by reference and modifications that may be made from time to time, constitute the entire agreement between Zoom Ordering, Inc. and Client regarding the Client Website and the Zoom Ordering™ Services, and supersedes all prior agreements between Client and Zoom Ordering, Inc. regarding the subject matter hereof.

14.2 Zoom Ordering, Inc. may at any time and in its sole discretion modify these Terms of Service and Privacy Policy, with or without notice to the Client, by posting such modification to its website (http://zoomordering.com/tos). Any such modification will be effective immediately upon public posting on our website. Client’s continued use of the Zoom Ordering™ Services and the ZoomOrdering.com website following any such modification constitutes your acceptance of these modified Terms.

15. DATA

15.1 As set forth in its Privacy Policy, Zoom Ordering, Inc. will not sell Client’s End User contact data to any third parties for marketing purposes. Zoom Ordering, Inc. reserves the right to use the contact data, order data, feature usage history, site traffic, location information and menu data to improve its products for Clients and End Users and to provide custom-tailored experiences to End Users.

16. SUPPORT

In order to provide the best quality services, we regularly monitor the integrity and uptime of our systems and your website to ensure Zoom Ordering™ Services are up-and-running smoothly. Zoom Ordering Inc. takes great pride in offering timely, world-class support. Support is offered through our support form online (http://zoomordering.com/support), through email or our phone line. Most questions are answered within a few hours, and we do our best to answer all questions by the next business day. If there is an urgent, time-sensitive matter, we recommend calling our phone line at (844) 454-6003 or using the online support form and selecting the “Urgent” priority. Support is limited on weekends and holidays. Support does not cover third party hardware or software such as fax machines, tablets, printers, computers, routers, networking equipment, internet service or any other equipment or service not supplied to you by Zoom Ordering Inc. However, if Zoom Ordering Inc. determines that your problem is not directly related to Zoom Ordering™ Services, we will point you in the right direction to rectify such issue.

17. FORCE MAJEURE.

17.1 Noncompliance by Zoom Ordering, Inc. with the terms of this Agreement due to any cause beyond its reasonable control , such as war, civil commotion, destruction of production facilities and materials, fire, flood, earthquake, storm, labor disturbances, shortage of materials, failure of public utilities or common carriers (each, an event of “Force Majeure”), shall not constitute a breach of this Agreement. Zoom Ordering, Inc. shall be excused from performance under this Agreement to the extent and for the duration of such event of Force Majeure.

18. GOVERNING LAW

18.1 The enforceability and interpretation of this Agreement shall be governed by the laws of the State of New York, without regard to principles of choice of law. Client hereby expressly consents to the jurisdiction and venue of the federal and state courts of Delaware for any lawsuits arising from this Agreement.

19. NOTICE

19.1 All notices required to be given pursuant to this Agreement shall be sent to the other party at the addresses last provided by the party, and shall be effective (a) upon hand delivery; (b) one (1) day after sending via recognized overnight courier; or (c) if sent via email, facsimile or other electronic transmission.

 

Last Edited on June 2, 2020