BIZ OS LLC END USER LICENSE AGREEMENT
This End User License Agreement (“License”) is a legal
agreement between you and Biz OS LLC, a Kansas limited liability company (“Company”)
and governs your use of the Biz OS software and mobile application, including
without limitation, any new release, update, supplement or replacement (individually
and collectively, the “Application”). The Application and any services provided
by Company through the Application (collectively, the “Services”) are licensed,
not sold, to you for use only under the terms of this License. By using the Application
or the Services, you agree to the terms of this License and agree to be bound
by them. Company reserves the right to modify the terms of this License in its
sole discretion, so please review those terms regularly. If Company makes any
material changes to this License, Company will notify you by means of a notice
on Company’s website at https://www.bis-os.app/user/tos_updates.php
or through the Application. Your continued use of the Application will
signify your acceptance of the changes to the terms of this License.
Section 2 below governs the information and data
collected from you through the Application and its registration process. If you
do not agree to Section 2, do not register for or use this Application.
This License applies to all users of the Application and
Services, including (i) any restaurant, business or
other service providers that utilize the Application and Services for business
administrative, operating and data processing services, and (ii) customer end
users that utilize the Application and Services to engage in online ordering
and service transactions with a restaurant, business or other service provider
utilizing the Application and Services.
This License and the terms and conditions contained
herein are between you and Company. In the event you signed up for the
Application and Services through a third party reseller or other provider other
than Company directly, then any terms and conditions beyond those contained in
this license that are agreed to between you and such third party provider are
between you and such third party provider, and Company shall have not
responsibility, obligation or liability with respect to any additional terms
and conditions agreed to between you and such third party provider.
To the extent you are a customer end user using the
Application and Services to engage in online transactions with a restaurant,
business or other service provider, Company may provide your End User Data
(defined in Section 1(e) below) to such restaurant, business or other service
provider in connection with your online transactions. Company prohibits such restaurant,
business or other service providers from using your End User Data for any
purpose except (i) to fulfill its obligations with respect
to your online transactions, and (ii) as expressly authorized by you to such restaurant,
business or other service provider.
1. Scope
of License.
a. Grant. Through the
use of the Application, you are acquiring, and Company grants you, a personal, limited, non-exclusive,
non-sublicensable, non-transferable license to use the Application on a
computer or mobile device only for personal, non-commercial purposes and in
accordance with the terms and conditions of this License.
b. Restrictions. You may not use
the Application for any purpose, or in any manner not specifically authorized
by this License. You shall not alter or remove from any copies or partial
copies of the Application any copyright, trademark or other proprietary notice,
or license terms where and as found in the Application as delivered to You. You
may not disassemble, reverse engineer, decrypt, decompile, create derivative
works from, or translate the Application, or any portion thereof, or recreate
or attempt to recreate the Application, in whole or in part by reference to the
Application, or perform any process intended to determine the source code for
the Application except to the extent that the foregoing restriction is
prohibited by applicable law; nor shall You sublicense, distribute, deliver,
disclose or otherwise provide to a third party any Application or portion
thereof, including without limitation, any account or password information
associated with Your access to the Application. Any unauthorized attempt to
assign, sublicense or grant other rights to the Application shall be
immediately and automatically void. You shall not share or disclose your login
credentials (including username and password) with any other person or third
party, nor shall you allow any other person or third party to access the Application
through your account.
c. Reservation of Rights. You acknowledge and agree that the Application (including the software
and mobile application and all methods, concepts or techniques utilized
therein) and related documentation are commercially valuable to Company, and its licensor or suppliers as
the case may be, and are treated as confidential, proprietary and
containing of trade secrets. You acknowledge and agree that Company, and its licensors or suppliers as the case may be,
owns all right, title and interest in and to the Application and any
intellectual property rights therein and associated therewith, including
without limitation any patents, trademarks, trade names, inventions,
copyrights, know-how, and trade secrets relating to the design, manufacture,
operation, or service of the Application and all derivatives, modifications,
translations, or extensions thereof. You recognize that nothing
contained in this License is intended to assign or grant to you any right,
title or interest in or to the Application or any associated intellectual
property. Your use of the Application is authorized only for the purposes
herein set forth. Your use of the Application shall cease immediately upon
termination of this License for any reason. All rights not expressly granted
herein are reserved by Company.
d. Your Contributions. To the extent you make any contributions in any form or format through
your use of the Application, you hereby grant Company perpetual, worldwide, non-exclusive, royalty-free, irrevocable,
fully transferable and assignable, fully sublicensable right and license to use
modify any ideas, concepts developments, modifications and information arising
out of your contributions in any way and for any purpose in connection with the
Application and related services including the rights to reproduce, copy,
adapt, modify, change, revise, further develop, perform, display, publish,
broadcast, transmit and distribute your contributions without any further
notice or compensation to you of any kind for the whole duration of protection
granted to intellectual property rights by applicable laws and international
conventions as authorized by this License. You hereby waive any
and all moral rights you may have in such contributions with respect to Company
use and further waive all rights in the
contributions under the Visual Artists Rights Act.
e. Ownership of End User Data. You, or your employer as applicable, shall maintain complete ownership
of all End User Data (defined below) loaded, input or hosted by or via the
Application. On behalf of yourself and your employer, you hereby grant Company
a worldwide, non-exclusive, sublicensable,
royalty-free license to use, host, translate, publish, distribute, reformat,
remove and prepare derivative works of the End User Data for the purposes of (i) providing the Application and Services to you, or your
employer as applicable, (ii) revising, modifying, evolving, training,
improving, optimizing and further developing the Application and Services, (iii)
providing such End User Data to business and service providers, vendors, brokers,
customers and other third parties involved in contracting or coordinating
deliveries, orders or other transactions to which such End User Data relates in
connection with providing the Application and Services to you, and (iv) as
specifically authorized in Section 2 below. “End User Data” shall mean any and all data, order information, name,
address, phone number, email and other information related to order delivery
and shipping, delivery documents, receipts, tickets, invoices, purchase orders,
shipping forms, and other documentation relating to the Services, images,
notes, descriptions, reports, and other information loaded or input into or via
the Application by you.
f. Access. Use of the Application may
require Internet access. You must provide at your own expense the computer,
equipment, Internet connection, devices and/or service or wireless plan to
access and use the Application. Company does not guarantee that the Application
can be accessed on all computers, browsers, devices, Internet connections or
wireless service plans. Company does not guarantee that the Application
is available in all geographic locations. You acknowledge that when you use
this Application via a smartphone or other wireless or cellular device, your
wireless carrier may charge you fees for data, Internet usage, messaging and/or
other wireless access. Check with your carrier to see if there are any such
fees that apply to you. You are solely responsible for any costs you incur to
access the Application from your computer and other device(s).
g. User Registration. You may be required to register
with Company through the Application in order to
access and use the Application and Services. The registration process requires
you to provide certain information, including your name, email address, phone
number, and password. You are responsible for keeping your password confidential and are responsible for all
activities (whether by you or others) that occur under your account. You agree
to notify us immediately of any unauthorized uses of your account or any other
breach of security. Company cannot and will not be liable for any loss or
damage arising from your failure to keep your account information protected.
h. Use of the Application. By registering for and accessing the Application, you represent that you
are at least thirteen (13) years old. In compliance with the Children’s Online
Privacy Protection Act, 15 U.S.C., §§ 6501-06 and 16 C.F.R., §§ 312.1-312.12,
Company does not knowingly collect information of children under 13 years of age, and does not permit children less than 13 years of age
to become users of the Application or Services. By using the Application and
Services, you represent that you are 13 years of age or older. Company
reserves the right to terminate your access to the Application
or your account for any reason, including if we have reasonable grounds to
suspect that you have provided information that that is inaccurate. Additionally,
any user name or login you use or create as part of the Application shall not
violate any third party’s rights or be harassing, libelous, defamatory,
abusive, tortious, threatening, harmful obscene, indecent, libelous,
threatening, harassing, hateful, containing bigotry, racism or is otherwise
objectionable. Company, in its sole discretion, shall
have the right to remove any user name or login which it finds to be
objectionable. Further, you agree not to engage in any activity that in any way
disrupts, limits, destroys or manipulates the Application, or any software,
hardware, servers, networks, or other equipment.
i. Third Party Transactions.
Through the Application and Services, you may engage in third party
transactions for the purchase of goods and/or services. Company merely serves
as an intermediary to facilitate these transactions, which are exclusively
between you and the third party provider. In
connection with these transactions, Company may collect End User Data,
including personal data, and provide such End User Data to the third party provider only as necessary to facilitate the
completion of the transaction. Company may also collect your payment data and
process your payment data through a third-party payment provider. You are
responsible for all transactions you enter into with
third party providers through the Application and Services.
2. Consent to Use of Data.
a. Personal Data. Through the Application
and its registration process, we may collect information such as your name, phone
number, email address, physical address, and employer information, and require
you to create a username login and password.
b. Payment Data. Through the Application and the Services, you may
provide credit card information or other payment information in connection with
your use of the Services. Company does not collect or store your payment
information and all payments through the Application will be processed using the
third-party payment provider, North American Bancard,
or other third-party payment provider designated by Company. All payments are
governed by the terms of use of the third-party payment provider.
c. Non-personal Data. To facilitate product support, development, improvement, and marketing
campaigns, as well as the Services provided to you through your use of the Application,
you acknowledge and agree that Company may collect information and
data you input into the Application, including End User Data, and may use
cookies, web beacons, geo-location devices and other analytic technology to
collect, use, store and transmit information and data relating to your use of the
Application. In addition to information and data collected through
the use of the Application, to improve the effectiveness of the services
of the Application, Company may request additional
information or data to be otherwise provided by you. Your submission of such
information and data shall be considered your consent to use such information
and data according to the terms of this License.
d. Use of Personal Data. Company treats all personal data as Confidential
Information (defined below) and will maintain such personal data in confidence
and prevent its unauthorized use or disclosure as set forth in Section 8 of
this License. Notwithstanding the foregoing, Company may, and you hereby authorize Company to, use your personal data in
order to provide you the Application and Services and enable you to use
the Application. In accordance with the foregoing, you hereby grant Company
a worldwide, non-exclusive, non-sublicensable,
non-transferable, royalty-free license to use, host, translate, reformat,
remove and prepare derivative works of your personal data for the purposes of
providing you the Application and the Services in accordance with this Section.
e. Use of Aggregated, De-Identified Personal Data. Company may use your personal data to create
de-identified, anonymized, and aggregated data sets to use for legitimate
business purposes, including providing such data sets to third parties. When
creating an aggregated data set, Company will strip all personally identifying
information from your personal data and combine it with other user’s de-identified
data and other types of data to create large aggregated sets of anonymized
data. Company uses these aggregated data sets for its own business
purposes or to provide these aggregated data sets to third parties for their
legitimate business purposes, including research and analytical purposes.
Company will NEVER include any of your personal data or any personally
identifiable information in these aggregated data sets. All data included in an
aggregated data set will have all personal identifiers removed so that it is
completely de-identified, and then it will be aggregated with other data so
that it is completely anonymized and will not include any data or information
that is personal to you or that can be traced to you in any respect. In accordance with the foregoing, you hereby grant
Company a worldwide, non-exclusive, non-sublicensable, non-transferable,
royalty-free license to use, host, translate, reformat, remove, aggregate,
de-identify and prepare derivative works of your personal data for the purposes
of creating aggregated data sets, and to use such aggregated data sets for
legitimate business purposes, and provide such aggregated data sets to third parties
for their legitimate business purposes.
f. Use of Other Submitted Content. Company may use your non-personal data,
including End User Data as defined in Section 1(e), for the
purpose of providing, improving and enhancing the Application and the
Services. In accordance with the foregoing, you hereby grant Compnay a worldwide, non-exclusive, non-sublicensable, non-transferable,
royalty-free license to use, host, translate, reformat, remove and prepare
derivative works of the non-personal data, including End User Data, for
purposes of operating the Application, providing the Services and revising,
modifying, evolving, training, improving, optimizing and further developing the
algorithms and data included in the Application and Services. You represent and
warrant that (i) you have sufficient right, title and
interest to upload and input the End User Data into or via the Application and to
grant Company the licenses for the non-personal
data, including End User Data, provided herein without the consent of any third
party, (ii) Company’s use of the End User Data for purposes of operating the Application and providing Services under this License will
not require a license from any third party, (iii) the End User Data will not violate any third party intellectual
property rights, and (iv) the End User Data will be free from any viruses,
worms, disabling programming codes, locks, clocks, counters, timers, time
bombs, instructions, easter eggs or other such items
that may threaten, infect, damage, disable or otherwise interfere with the Application
or the hardware, servers and other computer systems of Company or
any third party hosting provider.
3. Termination. This License is
effective until terminated by Company or you. This License shall
automatically terminate without notice to you (a) upon the termination of a master
license agreement under which this License is provided, or (b) if you fail to
comply with any of the terms or conditions of this License. Upon termination,
you shall cease all use of the Application and uninstall the Application from
all computers and device(s) upon which it is installed. The following Sections
shall survive termination of this License: Sections 1(b), 1(c), 1(d), 1(e), 2(c),
2(d), 2(e), 2(f), 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
4. Third Party Materials, Sites, Terms and Conditions.
a. Third Party Materials and Sites. The Application may display, include or make available content,
advertisements, data, information, applications and other materials from third
parties (“Third Party Materials”) or provide links to certain third party web sites or applications. You acknowledge and
agree that Company is not responsible for
examining or evaluating the content, accuracy, completeness, timeliness,
validity, copyright compliance, legality, decency, quality or any other aspect
of such Third Party Materials or third party web sites
or applications. Company does not warrant or endorse and
does not assume and will not have any liability or responsibility to you or any
other person for any Third Party Materials or third
party web sites or applications, or for any other materials, products, or
services of third parties.
b. Third Party Terms and Conditions. Your access and use of the Application and Third Party Materials may be subject to certain third party
terms and conditions and privacy policies, including but not limited to those
of application stores, mobile software platforms and wireless carriers and
providers. You acknowledge and agree that Company is not liable for any such third
party terms and conditions.
5. Disclaimer of Warranties. YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK. THE APPLICATION AND ANY
INFORMATION AND SERVICES OFFERED ON OR THROUGH THE APPLICATION AND ANY
REFERENCED THIRD-PARTY MATERIALS, WEB SITES AND APPLICATIONS ARE PROVIDED TO
YOU “AS IS” AND ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED. COMPANY DISCLAIMS ALL EXPRESS AND
IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED
TO IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR
A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE APPLICATION
WILL MEET ALL OF YOUR REQUIREMENTS OR THAT USE OF THE APPLICATION WILL BE
UNINTERRUPTED OR ERROR-FREE. ANY THIRD PARTY MATERIALS
OR WEB SITES COMPANY PROVIDES ARE PROVIDED AS A
CONVENIENCE TO YOU AND COMPANY’S PROVISION OF THESE THIRD
PARTY MATERIALS OR WEB SITES DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION,
PARTNERSHIP, OR ENDORSEMENT. COMPANY DOES NOT WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE APPLICATION OR THE
MATERIAL PROVIDED THROUGH THE APPLICATION IN TERMS OF CORRECTNESS, ACCURACY,
TIMELINESS, RELIABILITY OR OTHERWISE.
6. Indemnification. You agree to indemnify, defend and hold harmless Company and its directors, officers, affiliates, employees,
agents, representatives, third party service providers, successors and assigns
(each an “Indemnitee”) from and against any and all claims, damages, losses and
expenses suffered or incurred by any such Indemnitee arising from, relating to
or otherwise in respect of any loss, damage or to any person or property
resulting from or relating to your use of the Application or any breach of this
License, including but not limited to, any breach of a representation and
warranty made herein.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE
BY LAW, In no event shall COMPANY be
liable for loss of profits, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE,
COMPUTER OR DEVICE FAILURE OR MALFUNCTION, SUBSTITUTE GOODS OR SERVICES or ANY
OTHER DIRECT, indirect, special, incidental, or consequential damages arising
out of or related to THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT
(INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE. Furthermore,
ANY OTHER damages recoverable by YOU from COMPANY shall in no case exceed THE
AMOUNT PAID BY YOU FOR THE APPLICATION OR $100, WHICHEVER IS LESS.
8. Confidential Information.
a. Nondisclosure of
Confidential Information. Each party acknowledges and accepts
the responsibility to maintain all Confidential Information (defined below) of
the other party in confidence and to prevent its unauthorized use or
disclosure, using measures the receiving party uses to protect its own similar
confidential information, but in any event, no less than a reasonable degree of
care. Without limiting the foregoing, each party agrees that it shall not
publish, disclose or otherwise provide to any person (except employees or
contractors with a legitimate need to know and who have entered into a written
agreement with the receiving party containing confidentiality provisions as
restrictive as those set forth in this Section 8), or use for any purpose other
than those purposes contemplated by this License, any Confidential Information
it receives hereunder. Notwithstanding the foregoing, you acknowledge that certain End User Data
and location information may be made accessible by Company to vendors, brokers, or other third parties involved in
providing the Services to you, including completing transactions to which such End User Data
and location information relates. To the extent the receiving
party is required by subpoena or otherwise by law to disclose Confidential
Information it received from the disclosing party, the receiving party shall
provide the disclosing party with prompt written notice of such requirement and
shall cooperate with the disclosing party in taking such steps as may be
reasonably indicated to maintain the confidentiality of the information subject
to disclosure. Each party acknowledges that violations of the terms hereof may
cause the other immediate and irreparable damage for which monetary damages may
be inadequate for which the other party is entitled to seek injunctive relief.
b. Definition of
Confidential Information. “Confidential Information”
shall mean any and all information and documentation relating directly or
indirectly to the business, business practices, trade secrets or affairs of a
party, including but not limited to, that pertaining to (i)
the internal business, financial and marketing information of either party; (ii)
the software code and its technical documentation (including, without
limitation, the architecture, conceptual logic, know-how and other intellectual
property embodied in the Application and the Services, and made accessible to you
hereunder); (iii) End User Data; or (iv) any other material or information
received from the other party and which is designated as “confidential” or “proprietary”,
or which are known, or under the circumstances surrounding disclosure
reasonably should be known, as the confidential or proprietary material of the
disclosing party. Confidential Information shall not include information that
(1) was in the receiving party’s possession at the time it was received from
the disclosing party, (2) is or becomes a matter of public knowledge through no
wrongdoing of the receiving party, (3) is rightfully provided to the receiving
party by a third party without restrictions of confidentiality, or (4) is
independently developed by the receiving party without breach of this License.
9. Export. You may not use or otherwise
export or re-export the Application except as authorized by United States law
and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may
not be exported or re-exported (a) into any U.S. embargoed countries or (b) to
anyone on the U.S. Treasury Department’s list of Specially Designated Nationals
or the U.S. Department of Commerce Denied Person’s List or Entity List. By
using the Application, you represent and warrant that you are not located in
any such country or on any such list. You also agree that you will not use the Application
for any purposes prohibited by United States or foreign law.
10. Injunctive Relief. You agree that a breach of this License will cause irreparable injury to
Company for which monetary damages
would not be an adequate remedy and Company shall be entitled to seek equitable relief in addition to any remedies it
may have hereunder or at law without a bond, security or proof of damages.
11. Entire Agreement. This License constitutes the entire agreement between you and Company
with respect to the Application and supersedes all
prior negotiations, discussions or representations, whether written or oral.
12. Assignment. Company may assign this License without notice to you. You shall not assign this
License without the prior written consent of Company. Such consent may be withheld at Company’s sole discretion.
13. Governing Law. This and any dispute
arising under or in connection with this License, including but not limited to
any action in contract or tort, will be governed by the laws of the State of Missouri,
without regard to its conflict of laws principles.
14. Dispute Resolution. Any dispute
arising out of, relating to, or concerning this Agreement shall, as a condition precedent to any
arbitration or court proceeding, be mediated by the parties. The parties shall
mutually agree upon a mediator, and shall schedule and
conduct such mediation at a mutually convenient time and place. Each party
shall bear its own costs, fees and expenses associated with such mediation,
except that the parties agree to split equally the costs and expenses of the
mediator and the conduct of the mediation itself. Any dispute that is not
resolved by mediation and which arises out of, relates to or concerns this
Agreement shall be resolved by arbitration administered by the American
Arbitration Association under its commercial arbitration rules, and judgment on
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. All arbitration hearings shall be conducted in Kansas
City, Missouri. Each party will bear its own costs, fees, and expenses
associated with any arbitration, except that the parties agree to split equally
the costs and expenses of the arbitrator or panel and the conduct of the
arbitration itself.
15.
Severability. If any provision of this License is held to be
unenforceable in mediation or by a court of competent jurisdiction, the
remaining provisions of this License will remain in effect, to be construed as
if the unenforceable provision was originally deleted and to be further
construed in such a manner as to give effect to the intent of the parties to
the greatest extent possible.
16.
Notices. If you have any questions or concerns regarding this
License, you may contact Company at: info@biz-os.app.