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TAKEOUT BUTTON, LLC

 

TERMS OF USE

HOSTED SERVICES

 

 

This document contains the Terms of Use (“TOU”) for Takeout Button, LLC Hosted Services. Please read it carefully. This Agreement supersedes any other agreement prior to its version. Please contact us with any questions or comments about our Terms of Use.

 

1.     OVERVIEW

This terms of use agreement (“Agreement”) sets forth the terms and conditions of your use of Takeout Button, LLC services (“Hosted Service(s)”). Your use of the Hosted Services signifies that you have read, understand, acknowledge, and agree to be bound by this Agreement.

 

The terms “we”, “us”, or “our” shall refer to Takeout Button, LLC. The terms “you”, “your”, “User” or “Customer” shall refer to any individual or entity who accepts this Agreement.

 

2.     MODIFICATION

 

Takeout Button, LLC, in its sole and absolute discretion, may change or modify this Agreement and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to http://www.takeoutbutton.com/terms.html. You acknowledge and agree that (i) we may notify you of such changes or modifications by posting them to the site, and (ii) your use of the Hosted Services after such changes or modifications have been made (as indicated by the version date at the bottom of this Agreement) shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Services and immediately notify us of this termination.

 

3.     USE LIMITATION

 

Use of third party software and documentation is subject to the terms and conditions of the applicable license agreements of Takeout Button, LLC, Service Vendor Parents, and the third party licensors. We make no representations or warranties regarding any third party software and we intend that the warranty and liability limitations provided herein are incorporated as to the third party software and documentation. You also acknowledge that the Hosted Services and the source code contain valuable proprietary information and trade secrets of Takeout Button, LLC, its Service Vendor Parents, and its third party licensors. You may not permit any third party to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from us.

 

4.     TERM AND TERMINATION

 

a.      Term. This Agreement shall commence on the date Hosted Services are provisioned and shall continue:

                                                       i.            yearly contract;

                                                     ii.            notify us of your desire to terminate; or

                                                  iii.            are terminated for other reasons set forth in the Agreement.

 

b.     Termination. This Agreement shall terminate when:

                                                       i.            You provide a cancellation request in writing;

                                                     ii.            In our sole discretion, we terminate your access to any or all of the Hosted Services or any portion thereof at any time, without notice; or

                                                  iii.            As otherwise provided in this Agreement.

 

c.      Termination-General.

                                                       i.            All outstanding fees must be paid in full prior to cancellation of the account. Termination, by you or us, does not release you from any past or current fees owed for Hosted Services rendered through the termination date.

                                                     ii.            We have no obligation to maintain any content or forward any unread or unsent messages to you or any third party.

                                                  iii.            You are responsible for securing or maintaining your data prior to termination.

                                                   iv.            We have no obligation to continue to hold, export, or return your data and you acknowledge and agree that we are not liable for the deletion of your data under this Agreement. Software supplied by Takeout Button, LLC must be uninstalled immediately upon termination and your domain cannot be placed back onto our network for a minimum of 90 days.

 

5.     ACCOUNT MANAGEMENT

 

a.      Services. If a particular Hosted Service requires you to open an account, you must complete the registration process by providing Takeout Button, LLC with current, complete, and accurate information as prompted by the applicable registration form. Your current contact, billing, and other information must be provided and updated at all times. You agree that you are doing so to induce us to enter into this Agreement with you.

 

b.     Passwords. The Services are accessed by use of passwords. You will receive generated passwords or choose your own passwords for the Services. You are entirely responsible for maintaining the confidentiality of your password and account information. Further, you are responsible for any and all activities that occur under your account. For security purposes, we cannot supply passwords. We may reset passwords after verifying your account. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss that you may incur as a result of someone else obtaining your password or account, either with or without your knowledge.

 

c.      Legal Use. By using the Hosted Services, you are representing and warranting that you are of legal age to form a binding contract and are not a person barred from receiving the Hosted Services under the laws of the United States or other applicable jurisdiction. As a condition of your use of the Hosted Services, you will not use the Hosted Services for any purpose or in any manner that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Hosted Services in any manner which could damage, disable, overburden, or impair our network or interfere with any other person’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Hosted Services, other accounts, computer systems or networks connected to us, through hacking, password mining, or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through us. You are liable for the content of the data passing through our Network or Hosted Services and for all actions performed by the use of the Hosted Services including that which may be illegal, obscene, defamatory, threatening, or that may violate particular trademark or copyright laws and rights.

 

d.     User Responsibility. You agree it is your responsibility to obtain access to the Hosted Services and that no equipment (e.g. computer hardware) or internet access will be provided to you by us. You are responsible for informing us of any changes to email addresses, contact information, and billing details to ensure receipt of notifications and invoices.

 

6.     FEES AND BILLING

 

a.      Fees. The fees associated with the Hosted Services provisioned are effective once the registration form is completed. Hosted Services are invoiced on a recurring basis at the rates set forth on the Site or on the Control Panel at the time of provisioning.

 

b.     Liability. The individual provisioning the Hosted Services is personally liable, jointly and severally, for any and all non-payment by you. Any Hosted Services enabled by request or in the Control Panel are billable and cannot be refunded due to user negligence. The individual assenting to this Agreement also assumes all fees associated with non-payment.

 

c.      Payment Terms.

                                                       i.            Month to Month. The default payment term is monthly where you will be billed on the same day of each month for any Hosted Services provisioned in the month prior to the invoice.

 

 

d.     Payment Methods. Payments must be remitted in USD currency by one of the following methods:

                                                       i.            Credit Card. Fees that you incur for the Hosted Services will be charged to the credit card number you provide during registration. If this credit card number expires or if we are otherwise unable to make valid charges to this credit card, we will notify you of the problem and reserve the right to terminate your access to the Hosted Services within 30 days of such notice unless you provide us with an alternative method of payment acceptable to us, within our sole discretion, within the 30 day period.

                                                     ii.            Check. Fees that you incur for the services must be received within 10 days from the invoice date. Partial payments will not be accepted. Checks that are not the full amount of the invoice due will be automatically shredded for security purposes and you will be notified of the rejection and non-payment.

 

e.      Other Fees. Other fees assessed on a one-time or as-needed basis are as follows:

                                                       i.            Setup Fees. If a setup fee is associated with any Hosted Service this fee is due on the invoice following the setup of the Service.

                                                     ii.            Professional Services Fees. These fees are determined based on the services rendered. Once the initial quote is agreed to by you, payment must be remitted before the services will be performed. E.g. restoration of deleted mailbox.

                                                  iii.            Late Fees. Invoices that are unpaid within 10 days will incur a $50 late fee per Hosted Service per month. If the entire balance is not paid within 30 days the account may be suspended.

                                                   iv.            Returned Check Fees. Accounts with returned checks will be assessed with a $50 late fee or the highest fee permitted by law. If the balance is not paid within 30 days the account will be suspended.

                                                     v.            Administrative Fees. These fees may be assessed when we incur expenses or expend resources based solely on you and not on the entire End User base. E.g. Fees incurred if an unpaid balance must be sent to a third party collection agency.

                                                   vi.            Interest on Unpaid Balances. Any unpaid balance shall accrue interest at the rate of 1 1/2 percent per month, compounded monthly, or the highest interest rate permitted under the law. This rate shall apply for both pre and post judgment balances.

 

f.       Account Suspension and Collection. If an account balance is unpaid, the Hosted Services will be automatically suspended. This suspension entails being locked out of all Hosted Services and the Control Panel. In order to lift the suspension, any outstanding balances must be paid in full along with late fees, and a reactivation fee of $50. Unpaid balances will be set to a third party collection agency after 60 days past due date and an additional administrative fee will be assessed.

 

g.     Fee Dispute – Initial Resolution. All billing discrepancies and disputes must be provided in writing along with a spreadsheet detailing invoiced charges juxtaposed against charges on the credit card statement or check. Application of credits or refunds can only be done within 90 days of us receiving the disputed invoice. Any disputes after 90 days will not be considered without home-office approval and the assessment of an administrative fee.

 

7.     PRIVACY

 

We will take all reasonable measures to not share any private information about you with any party outside of this Agreement. In the event we receive a request for your information, we will notify you and seek prior approval before disclosure. Notwithstanding the above, you agree and consent that we may access, preserve, and disclose your information, data (including without limitation e-mails, contents of user accounts) at our sole discretion if we reasonably believe the disclosure is necessary to comply with (a) the legal process, (b) enforce the terms of this Agreement, (c) respond to your requests for customer service, or (d) protect the rights, property, or personal safety of us or the public. Other terms and conditions exist in our privacy policy as it exists on the Site and available to you.

 

8.     WEBSITE DEVELOPMENT

 

a.      Specifications. Restaurant and Takeout Button, LLC will create a detailed listing of the services, specifications, and plan (collectively “Specifications”) for development, modification, upgrades to Restaurants website. The Specifications will list the price, delivery date, and scope of the project.

 

b.     Changes in Project Scope. If either we or you desire a change in the scope, performance, delivery date, et al. to the Specifications, such change shall be in writing and shall not modify this Agreement unless accepted by both parties.

 

9.     ONLINE DIRECTORY PLACEMENT

 

You agree that we shall have the right to place your website, contact information, logo, or other information as needed into website or online directories to improve traffic to your site. You agree that Takeout Button, LLC shall not be responsible for maintenance of your information in these directories. You shall review these directories from time to time and ensure all information is accurate and timely (e.g. change in hours of operation).

10. SPAM

 

You agree we may immediately terminate any Hosted Service which we believes, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $3.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Hosted Services.

 

11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

 

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR OWN RISK AND THAT THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, “ERROR-FREE OPERATION”, AND “WITH ALL FAULTS” (EVEN IF CREATED BY THE INTERNATIONAL SALE OF GOODS CONVENTION). TAKEOUT BUTTON, LLC, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT (EVEN IF CREATED BY THE INTERNATIONAL SALE OF GOODS CONVENTION). TAKEOUT BUTTON, LLC, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OF COMPLETENESS, OR CONTENT OF THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.

 

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY TAKEOUT BUTTON, LLC, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

 

THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR USE OF THE SERVICES.

 

12. LIMITATIONS ON LIABILITY

 

IN NO EVENT SHALL TAKEOUT BUTTON, LLC, ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE HOSTED SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (III) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION, OR OTHER INFORMATION AND DATA STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF SERVICES TO THE USER, (VI) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM YOU WHILE USING THE SERVICES, (VII) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONAL, AND/OR (VIII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT TAKEOUT BUTTON, LLC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE HOSTED SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

 

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL TAKEOUT BUTTON, LLC’S TOTAL AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION FOR THE PRECEDING TWELVE MONTH PERIOD.

 

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE HOSTED SERVICES.

 

13. INDEMNITY

 

You agree to protect, defend, indemnify, and hold harmless Takeout Button, LLC, its officers, directors, managers, employees, and agents, from and against any and all claims, demands, costs, expenses, losses, liabilities, and damages of every kind and nature (including, without limitation, reasonable attorneys fees) imposed upon or incurred by Takeout Button, LLC directly or indirectly arising from (i) your use of and access to the Hosted Services, (ii) your violation of any provision of this Agreement, and/or (iii) your violation of any third party right, including without limitation any intellectual property or other right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.

 

14. GOVERNING LAW

 

This Agreement shall be governed by and construed in accordance with the federal law of the United States and the state law of Florida, whichever is applicable, without regard to conflict of laws principles.

 

15. JURISDICTION AND VENUE

 

You agree that any action relating to or arising out of this Agreement shall be brought in the state court of Pinellas County, Florida and the federal court of the Middle District of Florida, Tampa Division. You hereby consent to and waive all defenses for lack of personal jurisdiction and forum non conveniens with respect to jurisdiction and venue in the state court of Pinellas County, Florida and the federal court of the Middle District of Florida, Tampa Division, including both pre and post judgment depositions.

 

16. WAIVER OF TRIAL BY JURY

 

YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT INCLUDING ALL LAWSUITS, COUNTERCLAIMS, AND THIRD PARTY SUITS.

 

17. THIRD PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS

 

Nothing in this Agreement shall be deemed to confer any third party rights or benefits. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.

 

 

18. SEVERABILITY

 

If a court of competent jurisdiction holds any provision (or a portion thereof) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portion thereof) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

 

19. INDEPENDENT COVENANTS

 

Each covenant and provision in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement.

 

20. TITLES AND HEADINGS

 

The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret this Agreement.

 

21. INTELLECTUAL PROPERTY

 

You are not acquiring a copyright, patent, or other intellectual property right in any Hosted Service, software, specifications or materials, or in any data, customizations, enhancements, changes, or work product related thereto. Any intellectual property rights that existed prior to this Agreement’s effectiveness shall belong solely to the party owning them at that time. Neither party shall be entitled to any copyright, trade secret, or patent of the other party. You shall not alter, obscure, or revise any proprietary, restrictive trademark, or copyright notice included with, affixed to, or displayed in, on or by a Service or materials. You agree to permit us a limited license to use your website images, links to your website, or other use of your intellectual property as it exists or exists in the future for use in our portfolio and for any other commercial marketing purpose.

 

 

 

22. EXPORT RESTRICTIONS AND UNLAWFUL ACTIVITY

 

Our Hosted Services are subject to export controls under applicable law. Accordingly, you shall: (i) remain in compliance with all requirements associated with these laws; (ii) cooperate fully with any audit related to these laws; and (iii) not utilize our Services in any country that is embargoed by the United States government. You shall be solely responsible for the importation of our Hosted Services, including obtaining any approval or permit necessary for importation or use. You represent that neither you, nor any of your directors, officers, agents, employees, or other persons associated with or acting on your behalf: (i) have received or will receive any unlawful contribution, gift, entertainment, or other payment from us; (ii) is a governmental entity; or (iii) is in violation of, or will violate any applicable anti-corruption or anti-bribery law. We shall have an irrevocable right to immediately terminate the Agreement or any other relationship with User if this subsection is breached.

 

23. FORCE MAJEURE EVENT

 

We shall not be liable for any loss, damage, or failure due to causes beyond its control, including strikes, riots, earthquakes, epidemics, terrorist actions, wars, fires, floods, weather, power failure, telecommunications outage, acts of God, or other failures, interruptions or errors not directly caused by us.

 

24. ENTIRE AGREEMENT

 

This Agreement constitute the entire agreement and understanding of the parties with respect to its subject matter. All prior agreements, understandings and representations regarding the same or similar services are superseded in their entirety.

 

25. ATTORNEYS FEES.

 

The non-prevailing party in any dispute under this Agreement shall pay all costs and expenses, including expert witness fees and attorneys' fees, incurred by the prevailing party in resolving such dispute from demand through litigation and any appeals thereon.

 

 

26. NOTICES

Any questions about this Agreement or notices required hereunder should be directed to us by email or regular mail at the following address:

 

Cindy Siriwong

Takeout Button

2400 Feather Sound Dr. Unit 1225

Clearwater FL 33762

cindy@takeoutbutton.com

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