Effective: May 19, 2011This is a subscription agreement (“Agreement”) between Restaurant Solutions, LLC, d/b/a ShiftNote, a Kansas limited liability company (“Restaurant Solutions”), you and any entity or organization on behalf of which you are accepting this Agreement (collectively, “you”) for access to the ShiftNote service, software and online tools (collectively, “ShiftNote”). In addition to the foregoing, references to ShiftNote, as used herein, shall include any and all proprietary documents and materials made available through ShiftNote and any and all accompanying and supporting software, content, and documentation. “Users” shall mean those individuals designated and authorized by you to access and use ShiftNote and who have been issued separate account registration and login information. Restaurant Solutions and you are collectively referred to herein as the “parties.”
BY CLICKING THE ACCEPTANCE BUTTON OR BY REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, USING, OR OTHERWISE ACCESSING ANY PART OF SHIFTNOTE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST INDICATE NON-ACCEPTANCE AND REFRAIN FROM REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, USING OR OTHERWISE ACCESSING ANY PART OF SHIFTNOTE.
1. Product Terms
a. Description. ShiftNote is proprietary to Restaurant Solutions and its licensors, if any, and is protected by intellectual property laws and international intellectual property treaties. Your and your Users’ access to ShiftNote is licensed and not sold. Restaurant Solutions reserves all rights not expressly granted to you, including, but not limited to, the right to alter, modify, update, enhance, or improve ShiftNote.
b. ShiftNote. Subject to the terms of this Agreement and upon payment of any applicable Fees (defined below), Restaurant Solutions agrees to provide you with the number of non-exclusive, non-transferable user accounts for which you have subscribed in the Order Form (defined below) enabling you and your Users to access and use ShiftNote solely for your internal business needs (and not for service bureau, time-sharing, or similar services). Each User account is valid for one user only and may not be shared concurrently or otherwise by or among multiple Users. You may harvest and/or reassign User accounts to new Users within your organization by notifying Restaurant Solutions (for example, upon the departure or reassignment of a User). Users of ShiftNote are limited solely to your employees or independent contractors. You are responsible for your Users’ compliance with the terms of this Agreement.
c. Accessibility of ShiftNote. Restaurant Solutions will use commercially reasonable efforts to make the core functions and features of ShiftNote available for access by you and your Users via the Internet ninety-nine percent (99%) of the time during normal business hours (8:00AM to 6:00PM Central Time Monday through Friday, excluding holidays). You understand and agree that, from time to time, ShiftNote may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which Restaurant Solutions may undertake of which Restaurant Solutions notifies you at least twenty-four (24) hours in advance; provided that, periodic maintenance affecting the availability of core functions and features during normal business hours that exceeds four (4) hours during any contract month shall be included in the calculation of the service levels provided above. In the event Restaurant Solutions fails to meet the service levels specified herein during any contract month during the term of this Agreement, you shall be entitled to a service level credit equal to one (1) month of the pro rata recurring subscription Fees due under this Agreement. Any service level credits earned during this Agreement shall immediately expire upon termination or expiration of this Agreement and are non-transferrable. You do not have a right to a refund or payment for any used or unused service level credits.
d. Usage Limitations. Each User account will be limited to the use of a pool of 2 GB of total storage space, shared for each restaurant location, to store all Customer Data (defined below) loaded by such User. Additional storage can be purchased per location at Restaurant Solutions’ then-standard rates. Restaurant Solutions reserves the right to implement reasonable usage limitations from time to time, including limitations on the number of page views and calls to Restaurant Solutions’ interface and systems, as it deems necessary.
e. Equipment. You shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for your and your User’s access to and use of ShiftNote, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, and programs and services required to access and use ShiftNote.
f. Reverse Engineering. Modification, reverse engineering, reverse compiling, or disassembly of ShiftNote or any component thereof is expressly prohibited.
a. Account Security. You and your Users shall be responsible for the security, confidentiality and integrity of all information that Users receive or transmit through ShiftNote. You and your Users shall be responsible for any authorized or unauthorized access or use of a User account by any person. You shall use commercially reasonable efforts to monitor and control access to your Users’ accounts and account information. If at any time you learn or suspect that your or any of your Users’ account information has been disclosed or otherwise made known to any person other than the relevant User, you agree to immediately notify Restaurant Solutions at email@example.com. You agree to bear all responsibility for the confidentiality of your and your Users’ passwords and all use or charges incurred from use of ShiftNote through your and your Users’ accounts.
c. Circumvention. You and your Users agree not to access ShiftNote, any part thereof or any information contained thereon through any technology or means other than through the applicable User’s account using the applicable User’s account information. You and your Users agree not to use or launch any automated system, including, without limitation, “robots,” “spiders” or “offline readers,” that accesses ShiftNote in a manner that sends more request messages to Restaurant Solutions or ShiftNote in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. You and your Users agree not to collect or harvest any personally identifiable information, including account information, from ShiftNote or Restaurant Solutions.
3. Intellectual Property
a. Restaurant Solutions’ Intellectual Property. The intellectual property utilized in providing ShiftNote is the valuable, confidential and copyrighted property of Restaurant Solutions and its licensors, if any. You and your Users may use ShiftNote as permitted herein and may not otherwise disclose, modify, adapt, translate, or create derivative works based on ShiftNote or any component thereof without the prior written consent of Restaurant Solutions. As between the parties, Restaurant Solutions owns all right, title, and interest in and to ShiftNote, including without limitation, any and all proprietary documents and materials made available through ShiftNote and all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio, video and other content therein. Restaurant SolutionsSM, ShiftNoteSM, and the ShiftNoteSM logo are service marks of Restaurant Solutions. All other trademarks, service marks and logos used on the website or through ShiftNote are the trademarks, service marks or logos of their respective owners.
b. Customer Data. ShiftNote allows you to upload and/or input data selected by you and your Users (the “Customer Data”) into the ShiftNote system. In connection with Customer Data, you affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to use and authorize Restaurant Solutions to use all Customer Data and to enable inclusion and use of the Customer Data in the manner contemplated hereunder. You retain all ownership rights in the Customer Data. By uploading and/or inputting Customer Data to ShiftNote, you hereby grant Restaurant Solutions a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display and perform the Customer Data for purposes of providing ShiftNote and the services to you under this Agreement. Additionally, you grant to Restaurant Solutions a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable and transferable license to use, reproduce, adapt, perform, compile, display, incorporate, modify and create derivative and collective works utilizing Customer Data in a de-identified format for the improvement of ShiftNote and Restaurant Solutions’ other products and services (as may exist now or in the future) and for other lawful purposes. For the avoidance of doubt, Restaurant Solutions will compile and present any such Customer Data that it so uses in such a manner that data cannot reasonably uniquely identify, either explicitly or implicitly, you or any individual.
c. Inaccurate Customer Data. All Customer Data originates from you and your Users, and as such, is beyond the control of Restaurant Solutions. Restaurant Solutions neither initiates the uploading and/or input of such Customer Data nor monitors the specific content or accuracy of the Customer Data being uploaded and/or input. Without limiting the generality of any other provision of this Agreement, Restaurant Solutions shall have no responsibility for or liability related to the accuracy, content, currency, completeness or delivery of the Customer Data provided by you or any of your Users. You are responsible for the accuracy, content, currency, completeness and delivery of the Customer Data uploaded and/or input by your Users, and you warrant that the Customer Data posted by your Users is accurate, current and complete.
d. Suggestions. Restaurant Solutions welcomes your suggestions, comments, feedback, information, or materials regarding ShiftNote or Restaurant Solutions’ products or services (collectively, “Suggestions”). If you submit Suggestions to Restaurant Solutions, please note that your Suggestions shall become the property of Restaurant Solutions. By submitting your Suggestions to Restaurant Solutions, you agree to assign, and hereby irrevocably assign to Restaurant Solutions, all right, title, and interest in and to the Suggestions and all copyrights and other intellectual property rights related to such Suggestions on a worldwide basis. Restaurant Solutions shall be free to use your Suggestions on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Suggestions.
4. User Representations
You and your Users represent and warrant to Restaurant Solutions that:
(a) you and all your Users are over the age of eighteen (18) and have the power and authority to enter into and perform their obligations under this Agreement;
(b) all information provided by your Users to Restaurant Solutions is truthful, accurate and complete;
(c) you and your Users shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth in Sections 5 and 7;
(d) you and your Users have provided and will maintain accurate and complete registration information with Restaurant Solutions, including, without limitation, names, addresses and telephone numbers;
(f) you and your Users will not use ShiftNote to violate any statute, law, rule or regulation, to violate any agreement with Restaurant Solutions or to otherwise violate the legal rights of Restaurant Solutions or any third person;
(g) you and your Users will not access or use ShiftNote in order to gain competitive intelligence about Restaurant Solutions, ShiftNote or any product or service offered by Restaurant Solutions or to otherwise compete with Restaurant Solutions;
(h) you and your Users are in fact authorized representatives of the entity on behalf of which you purport to act.
5. Prohibited Uses
You are responsible for any and all acts and omissions that occur under each of your User’s account or password, and you and your Users agree not to engage in unacceptable use of ShiftNote, which includes, without limitation, use of ShiftNote to:
(a) disseminate or transmit material in any form that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious;
(b) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property, privacy or publicity rights of any person;
(c) interfere, disrupt or attempt to gain unauthorized access to other accounts on ShiftNote or any other computer network;
(d) disseminate, store or transmit viruses, trojan horses or any other malicious code or programs;
(e) disseminate or otherwise make available any proprietary documents or materials made available through ShiftNote to third parties unrelated to your internal business needs without the prior written consent of Restaurant Solutions; and/or
(f) violate any statute, law, rule or regulation or otherwise violate the legal rights of a third person.
6. Fees and Payment
a. Payment. You shall pay to Restaurant Solutions (or to its third-party payment services provider, if any) the subscription and other charges set forth in the applicable order form (whether online or otherwise) (“Order Form”), the first such payment due and payable immediately upon submission of the Order Form and any other payments due monthly, quarterly or annually as set forth in the Order Form (“Fees”). All Fees, Taxes (defined below) and other charges shall be billed to your credit card, ACH or other payment method by Restaurant Solutions or its third party service provider, if any. Fees are quoted and payable in United States dollars and are based on services and accounts purchased as opposed to actual usage. In the event the Agreement is renewed as set forth in Section 8, you agree that Restaurant Solutions may automatically charge you for the Fees due for the renewal term based upon your then-current usage of ShiftNote using your previous payment method.
b. Collection and Taxes. You shall be responsible for and shall pay Restaurant Solutions all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any governmental entity. You agree to pay interest at the rate equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable law, on any outstanding balance, together with costs of collection, including attorneys’ fees and costs.
By virtue of this Agreement, each party may have access to information that is confidential to the other party (“Confidential Information”). Restaurant Solutions’ Confidential Information shall include, but not be limited to, any documents or materials made available through ShiftNote, the ShiftNote software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, terms and pricing, and any information clearly identified in writing or which, by its nature, should reasonably be known by User at the time of disclosure as confidential. Your Confidential Information shall include Customer Data submitted via ShiftNote that is non-public, proprietary information. Each party acknowledges that the disclosing party’s Confidential Information constitutes valuable, proprietary information of the disclosing party, and each party agrees that it shall use the disclosing party’s Confidential Information solely in accordance with the provisions of this Agreement and shall not use or disclose, or permit to be used or disclosed, the same, directly or indirectly, to any third party without the disclosing party’s prior written consent. Each party shall safeguard the disclosing party’s Confidential Information from unauthorized use and disclosure using measures that are equal to the standard of performance used it to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. The following information will not be considered Confidential Information:
(a) information which was in the public domain prior to its disclosure;
(b) information which becomes part of the public domain by any means other than through violation of this Agreement;
(c) information independently developed by the receiving party without reference to the disclosing party’s Confidential Information, already in the receiving party’s possession prior to receipt from the disclosing party, or rightfully provided to the receiving party from a third party without restriction; or
(d) information solely to the extent produced in compliance with any law, court or administrative order; provided, however, that the receiving party gives the disclosing party reasonable notice under the circumstances and as allowed by law that such Confidential Information is being sought by a third party, so as to afford the disclosing party the opportunity to limit or prevent such disclosure. Further, each party agrees that it shall disclose the disclosing party’s Confidential Information only to such of its representatives and/or employees who have a need to know such information for the furtherance of this Agreement.
8. Term; Termination
a. Term; Renewal. This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until the expiration of the period set forth in the Order Form unless otherwise earlier terminated in accordance with this Agreement. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other written notice of non-renewal at least thirty (30) days prior the end of the relevant subscription term. The Fees during any such renewal term shall be the same as those charged during the prior term unless Restaurant Solutions provides you with written notice of an increase in Fees at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such increase in Fees shall not exceed ten percent (10%) over the applicable Fees for materially similar access to or number of equivalent accounts for ShiftNote in the immediately prior subscription term, unless the Fees in such prior term were designated in the relevant Order Form as promotional or one-time. Notwithstanding anything to the contrary in this Agreement, if you are registering for a free, 30-day trial subscription to ShiftNote, the term shall be for such thirty (30) days, and Restaurant Solutions shall have no further obligation beyond such time period unless you convert to a paid subscription during such free trial period.
b. General Termination of ShiftNote. Should either party commit a material breach of its obligations hereunder, the other party may, at its option, terminate this Agreement by written notice to the other party. Such notice shall identify and describe the material breach upon which termination is based. The breaching party shall have fifteen (15) days from the effective delivery of the notice to cure such breach which, if effected, shall prevent termination by virtue of such breach. In the event of termination by you due to Restaurant Solutions’ uncured breach, Restaurant Solutions shall refund a pro rata portion of the Fees paid by you for the then-current term. Otherwise, you shall not be entitled to any refund of the Fees, and any unpaid Fees for the remainder of the then-current term shall become immediately due and payable to Restaurant Solutions. Restaurant Solutions may suspend your and your Users’ access to ShiftNote immediately upon written notice in the event of nonpayment of the Fees for a period of ten (10) days after the due date thereof or immediately in the event of later rejection of your payment method or chargeback.
c. Additional Methods of Termination of ShiftNote. Restaurant Solutions reserves the right, in its sole discretion and at any time and for any reason, to terminate the terms of this Agreement as to ShiftNote upon thirty (30) days notice to you. Additionally, you may terminate this Agreement immediately in the event you qualify for service level credits for any three (3) consecutive months during the term of this Agreement. In such an event, Restaurant Solutions shall refund a pro rata portion of the Fees paid by you for the then-current term.
d. Effect of Termination. Upon termination, you and your Users shall terminate all use of ShiftNote, including, without limitation, you and your Users’ use of any and all proprietary documents and materials made available through ShiftNote, and each party shall return or destroy the other party’s Confidential Information (provided that Restaurant Solutions may retain your Confidential Information subject to the confidentiality obligations of this Agreement to the extent incorporated into Restaurant Solutions’ disaster recovery backups, if any, or as otherwise permitted or required by law). If requested within thirty (30) days after the effective date of termination of this Agreement, and if all outstanding Fees are paid, Restaurant Solutions will make available to you for download a file of the Customer Data in comma separated value (.csv) format. After such thirty day period, Restaurant Solutions shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In the event you are subscribing to a 30-day free trial, you must remove all Customer Data uploaded to and/or input into ShiftNote prior to the end of the trial period. Restaurant Solutions may remove any remaining Customer Data from its systems immediately upon expiration of the free trial period unless you convert to a paid subscription prior to expiration of such free trial period.
9. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR OTHERWISE PROHIBITED BY LAW, SHIFTNOTE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOUR AND YOUR USERS’ ACCESS TO AND USE OF SHIFTNOTE IS AT YOUR SOLE RISK. RESTAURANT SOLUTIONS DOES NOT WARRANT THAT YOUR OR YOUR USERS’ USE OF SHIFTNOTE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES RESTAURANT SOLUTIONS MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF SHIFTNOTE, OR THE TIMELINESS, SEQUENCE, ACCURACY, ADEQUACY OR COMPLETENESS OF ANY DOCUMENTS, MATERIALS OR INFORMATION PROVIDED THROUGH SHIFTNOTE. RESTAURANT SOLUTIONS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, IN RELATION TO SHIFTNOTE.
10. Limitation of Liability
EXCEPT AS OTHERWISE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES SHALL RESTAURANT SOLUTIONS BE LIABLE TO YOU, ANY USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, SHIFTNOTE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, YOUR OR YOUR USERS’ USE OR INABILITY TO USE SHIFTNOTE, ANY CHANGES TO OR INACCESSIBILITY OF SHIFTNOTE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH SHIFTNOTE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH SHIFTNOTE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL RESTAURANT SOLUTIONS’ TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL PURCHASE PRICE AND/OR FEES PAID, IF ANY, BY YOU TO RESTAURANT SOLUTIONS HEREUNDER. IF YOU ARE DISSATISFIED WITH SHIFTNOTE, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE FOR YOU AND YOUR USERS TO DISCONTINUE USE OF SHIFTNOTE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.
RESTAURANT SOLUTIONS IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF SHIFTNOTE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATIONS OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR YOU AND YOUR USERS TO OBTAIN THE RIGHT TO USE SHIFTNOTE AT THE SPECIFIED PRICE, IF ANY. YOU AGREE TO ASSUME THE RISK FOR: (a) ALL LIABILITIES DISCLAIMED BY RESTAURANT SOLUTIONS CONTAINED HEREIN; AND (b) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
You agree to indemnify, hold harmless and defend Restaurant Solutions, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person or entity, arising out of or relating to:
(a) this Agreement;
(b) your and your Users’ use of ShiftNote, including any Customer Data, data or work transmitted or received by you or your Users;
(c) any unacceptable use of ShiftNote by you or your Users or through you or your Users’ accounts, including, without limitation, any Customer Data or any statement, data or content made, transmitted or republished by you or your Users which is prohibited under applicable law or by this Agreement;
(d) any intentional or negligent act or omission of you or your Users; and/or
(e) your or your Users’ violation of any third party rights, including, without limitation, any intellectual property or privacy right.
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Consent to Electronic Transactions. The parties understand and agree that this Agreement may be agreed to and executed via electronic methods of agreement. The parties consent to the use of electronic agreement and electronic signatures and agree that the electronic signature of their authorized representatives as affixed to writings and documents relating to this Agreement is the legal equivalent of a manual signature on such documents. The parties further agree that (a) use of a key pad, mouse or other device to select an item, button, or icon, (b) sending an email or other electronic correspondence to the other party consenting to or accepting certain terms relating to this Agreement, or (c) any other similar act or action in submitting documents to the other party, constitutes such party’s electronic signature. The parties also agree that no certification authority or other third party verification is necessary to validate their electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting agreement between the parties.
c. Assignment. You shall not assign or otherwise transfer your license under this Agreement or any of your rights or duties hereunder to another party, by operation of law or otherwise, without the prior written consent of Restaurant Solutions. Any attempted assignment or transfer in contravention of this Agreement shall be void and of no effect. Restaurant Solutions may assign this Agreement at any time without advance written notice to you.
d. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
e. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
f. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party’s last known post office, facsimile or e-mail address, respectively. You hereby consent to notice by email and posting on Restaurant Solutions’ web site. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at their respective addresses or to such other address as either party may, from time to time, provide to the other party.
g. Law. This Agreement shall be treated as though it were executed and were to be performed in Kansas City, Missouri, USA. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods, the application of which is expressly excluded, but such rights and obligations will instead be governed by the laws of the State of Missouri, USA. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri, USA, without regard to conflict of law principles.
h. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts located in or serving the City of Kansas City or the County of Jackson County, Missouri, USA. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts located in or serving the City of Kansas City or the County of Jackson County, Missouri, USA. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts located in or serving the City of Kansas City or the County of Jackson County, Missouri, USA and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court located in or serving the City of Kansas City or the County of Jackson County, Missouri, USA.
i. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving the City of Kansas City or the County of Jackson County, Missouri, USA.
j. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use or duplication of ShiftNote or any of the proprietary documents and materials made available through ShiftNote or a breach of the confidentiality provisions of this Agreement, would cause irreparable harm and significant injury to Restaurant Solutions which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Restaurant Solutions has the right to enforce the provisions of this Agreement in a court of competent jurisdiction by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies Restaurant Solutions may have for your breach of this Agreement.
k. Attorneys’ Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
l. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
m. Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, telecommunications interruption, slow-speed of the Internet or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
n. Survival. The terms and provisions of Sections 1(a), 1(f), 3, 4, 7, 8(d) and 9-12 shall survive any termination or expiration of this Agreement.
o. Entire Agreement. This Agreement, including any other documents referenced herein and hereby incorporated by this reference, constitutes the complete and exclusive statement of the agreement between the parties with respect to ShiftNote and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning ShiftNote. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
p. Export Compliance. You and your Users shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using ShiftNote. Without limiting the generality of the foregoing, you represent that (i) you and your Users are not named on any U.S. or other applicable government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use ShiftNote in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. You recognize and acknowledge that some countries (including, without limitation, Belgium, China (including Hong Kong), France, India, Indonesia, Israel, Russia, Saudi Arabia, Singapore and South Korea) have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and you further acknowledge and agree that you and your Users are ultimately responsible for complying with any and all government export and other applicable laws.