Qmenu Inc.

Qmenu, Inc. Terms of Service

1.Acceptance of Terms.
1. 1.1 Qmenu, Inc. (“Qmenu” or “we”) provides its Service (as defined below) to you through its web site located at https://www.qmenu360.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, Restaurant acknowledges that it has read, understood, and agrees to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you”, “Restaurant”, or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
2. 1.2 THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE RESTAURANT TO SUBMIT CLAIMS RESTAURANT HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) RESTAURANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST Qmenu ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) RESTAURANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
3. 1.3 Qmenu may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the Site. Restaurant can review the most current version of this TOS at any time at https://www.qmenu360.com/tos.html and under the "TOS" section of our Mobile App. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services and either send a cancellation email to support@qmenu360.com or call our support hotline at (404) 382-9768.
4. 1.4 As part of the registration process, Restaurant will provide phone numbers associated with the Restaurant. Representatives of the Restaurant with access to those phone numbers may then log into the Restaurant’s account (“Account”).
2. Description of Service. The “Service” includes (a) the Site, (b) Qmenu’s services and related technologies designed to facilitate restaurants’ online purchase orders and (c) all software (including our mobile applications and related technologies (“Mobile Apps”)”), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). You can use the Service to make your Restaurant Products (defined below) available to Customers (defined below) online via ecommerce. Your Customers can then use the Service to place Marketplace Orders (defined below) with your Restaurant. Any new features added to or augmenting the Service are also subject to this TOS.
3. Delivery Services. Qmenu has entered into agreements with third-party restaurant delivery providers (each, a “RDP”). The Service connects you to RDP that are capable of providing Marketplace Orders to your Customers (“Delivery Services”). If you elect to receive Delivery Services, you acknowledge that the Service connects you with providers of Delivery Services but Qmenu does not perform those Delivery Services. The Delivery Services are performed by drivers who enter into agreements with the RDP, but Qmenu is not a party to those agreements. In order to make the Delivery Services available to you via the Service, Qmenu must accept the RDP’s terms and conditions (the “RDP Terms & Conditions”). As a condition of your receipt of Delivery Services, you agree to abide by the portion of the RDP Terms & Conditions applicable to you, which may change from time to time. If you require a copy of the RDP Terms & Conditions applicable to you, please contact us at support@qmenu360.com. In addition to those RDP Terms & Conditions, your receipt of the Delivery Services is conditioned on your performance of the responsibilities applicable to restaurants in the responsibility matrix available at https://www.uber.com/legal/en/document/?name=uber-delivery-integration-api-terms-of-use (the “Responsibility Matrix”). Please contact Qmenu if you encounter any issues with the Delivery Services. Your ability to select to receive Delivery Services is part of the Service for purposes of this TOS. All tips collected through the Service will be passed through to the RDP and to the respective driver who performs the Delivery Service.
4. The Parties’ Relationship. Qmenu provides the Service using web-based technology that connects Restaurant, and its customers who place an order for Restaurant take-out or delivery orders through the Services (“Customers”). From time to time, Qmenu may list Restaurant on the Service subject to the applicable fees pursuant to Section 8. Qmenu is not a seller of goods, or delivery service; it is an online connection platform. Upon Restaurant’s request Qmenu may become the Merchant of Record for certain orders placed on the Site (See Merchant Addendum). Restaurant and Qmenu agree they are independent businesses whose relationship is governed by this TOS. Nothing in the parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Qmenu and Restaurant (or Restaurant’s employees, representatives or locations) or Qmenu and Customers. Except as expressly set forth in this TOS, and any applicable terms between the parties, each party shall be responsible for its own expenses, profits and losses.
5. Restaurant Core Responsibilities.Restaurant will, in a timely manner:
1. 5.1 Restaurant will, in a timely manner:
  1. (a) Provide Qmenu with the Restaurant’s in-store or take-out menu, including the price of each item on such menu;
  2. (b) Only upload to the Services or otherwise provide Qmenu with the identical menu as that offered to dine-in customers, including the same pricing of such menu;
  3. (c) Monitor Restaurant’s menu and store information on the Service (including tax liabilities), promptly make updates via the Services to reflect the most up-to-date products, pricing, tax, and other information or immediately notify Qmenu of any errors or changes in writing;
  4. (d) Accept all orders placed on the Service (“Marketplace Orders”) from Restaurant’s then-current menu;
  5. (e) Prepare the correct products identified in the Marketplace Orders (“Restaurant Products”) for each Marketplace Order;
  6. (f) Notify Qmenu of any changes to the pricing, availability, description, or other characteristics of the Restaurant Products;
  7. (g) Notify Qmenu of its days and hours of operation, and remain open for business on Qmenu the same days and hours of operation as Restaurant’s in-store business; notify Qmenu of any changes to Restaurant’s hours of operations on holidays; and notify Qmenu if Restaurant closes earlier than Restaurant’s standard hours of operation or plans to close earlier than Restaurant’s standard hours of operation;
  8. (h) Notify all Restaurant store staff members of the relationship with Qmenu immediately upon execution of this TOS;
  9. (i) On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Services, and promptly communicate to Qmenu any inaccuracies;
  10. (j) If Qmenu collects and passes tips from Customers to Restaurant, Restaurant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws; and
  11. (k) Upon reasonable request of Qmenu, without any additional cost to Qmenu, implement and comply with such protocols, procedures and other terms and conditions as are necessary and appropriate in order for Qmenu to comply with all applicable health, food packaging, food delivery service and other laws, rules, standards and regulations applicable to Qmenu’s business, including, if applicable, the requirement in Section 20-563.6 of the administrative code of New York City relating to the provision of toilet facility access to food delivery workers.
2. 5.2 When receiving Delivery Services, Restaurant will, in a timely manner:
  1. (a) Confirm all Orders within ten (10) minutes of receipt;
  2. (b) Direct all issues and complaints pertaining to the Delivery Services to Qmenu;
  3. (c) Prepare the customers products or offerings as soon as the Order is confirmed; and
  4. (d) Abide by the applicable RDS Terms & Conditions and the Responsibility Matrix.
6.General Conditions / Access and Use of the Service.
1. 6.1 Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Qmenu. Restaurant shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. Restaurant shall comply with any codes of conduct, policies or other notices Qmenu provides you or publishes in connection with the Service, and you shall promptly notify Qmenu if you learn of a security breach related to the Service.
2. 6.2 Any software that may be made available by Qmenu in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Qmenu hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. Restaurant agrees not to access the Service by any means other than through the interface that is provided by Qmenu for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Qmenu or any third party is granted to you in connection with the Service.
3. 6.3 Restaurant is solely responsible for all data, information, feedback, suggestions, text, content and other materials that it uploads, posts, delivers, provides or otherwise transmits or stores (hereafter “post(ing)”) in connection with or relating to the Service (“Restaurant Content”). “Restaurant Content” includes menus, photographs (either provided by Restaurant or on Restaurant’s website), business information and Restaurant Product descriptions (either provided by Restaurant or on Restaurant’s website), trademarks, logos, Restaurant name, location, website, phone number, and other materials provided by Restaurant to Qmenu. Restaurant agrees to cooperate with and provide reasonable assistance to Qmenu in promoting and advertising the Services.
4. 6.4 Restaurant is responsible for maintaining the confidentiality of your phone numbers, secure OTP codes, username, password and account and for all activities that occur under your login or account. Qmenu reserves the right to access your account in order to respond to your requests for technical support. Restaurant hereby grants Qmenu a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Restaurant Content in connection with the Service. Qmenu has the right, but not the obligation, to monitor the Service, Content, or Restaurant Content. Restaurant further agrees that Qmenu may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
5. 6.5 If photographs of Restaurant’s menu items are not available or if they do not meet Qmenu’s requirements, as reasonably determined by Qmenu, then Restaurant consents to Qmenu (a) engaging a professional photographer to take photographs of Restaurant’s menu items or other products; (b) enhancing the quality of Restaurant’s existing photographs; (c) using stock photographs of the menu item or other products, or (d) using photographs from Restaurant’s website or social media channels, and displaying such photographs on the Services as representations of Restaurant’s menu items; provided that Restaurant may contact Qmenu support to have such photographs removed from the Restaurant’s store listing and, in such event, Qmenu will comply in a timely manner.
6. 6.6 Restaurant understands that the operation of the Service, including Restaurant Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Qmenu’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Restaurant Content. Qmenu will have no liability to you for any unauthorized access or use of any of Restaurant Content, or any corruption, deletion, destruction or loss of any of Restaurant Content.
7. 6.7 Restaurant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Restaurant shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Qmenu’s published policies then in effect. Restaurant shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
8. 6.8 The failure of Qmenu to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. Restaurant acknowledges that this TOS is a contract between Restaurant and Qmenu, even though it is electronic and is not physically signed by you and Qmenu, and it governs your use of the Service.
9. 6.9 Qmenu reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Qmenu’s website and in other communication with existing or potential Qmenu customers. To decline Qmenu this right you need to email support@qmenu360.com or call (404) 382-9768 stating that you do not wish to be used as a reference.
10. 6.10 Subject to the terms hereof, Qmenu may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
7. Feedback. Restaurant may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Qmenu with respect to the Services. Qmenu will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Restaurant hereby grants to Qmenu a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
8 Payment. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Qmenu information regarding your credit card or other payment instrument and pay the fees made available to it in the Service. Restaurant represents and warrants to Qmenu that such information is true and that you are authorized to use the payment instrument. Restaurant will promptly update your account information with any changes (for example, a change in its billing address or credit card expiration date) that may occur. Upon successful completion of a test order, you agree to pay Qmenu the amount that specified in the payment plan within the Service and this TOS.

Restaurant will pay fees as follows:

☐ (Option 1) Qmenu will invoice the Restaurant monthly. Restaurant hereby authorizes Qmenu to bill its payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. The Restaurant shall have thirty (30) days to pay the invoice from the date of receipt, or the Services may be terminated. After thirty (30) days of non-payment, Qmenu at its own discretion will move the restaurant to Option 2.

☐ (Option 2) Qmenu will collect online order payments directly from the Restaurant’s customers. Qmenu shall disburse payments to the Restaurant equal to the amount collected minus the commissions, fees, and prior debts as applicable. Qmenu will mail a check to the Restaurant address on file or ACH Bank Transfer for the disbursed monies on a semi-monthly basis. If Restaurant elects to enroll in Delivery Services, then Restaurant agrees that all fees will be processed via this Option 2.

If you dispute any charges you must let Qmenu know within sixty (60) days after the date that Qmenu invoices you. We reserve the right to change Qmenu’s prices. If Qmenu does change prices, Qmenu will provide notice of the change on the Site or in email to you, at Qmenu’s option, at least 30 days before the change is to take effect. Restaurant’s continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Restaurant shall be responsible for all taxes associated with Services other than U.S. taxes based on Qmenu’s net income.
9. Representations and Warranties. Restaurant represents and warrants to Qmenu that
1. 9.1 it has full power and authority to enter into this TOS;
2. 9.2 it owns all Restaurant Content or has obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Qmenu to perform its obligations) in connection with the Services without obtaining any further releases or consents;
3. 9.3 Restaurant Content and other activities in connection with the Service, and Qmenu’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Restaurant Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and
4. 9.4 It has and will comply (a) with all applicable laws, rules, standards and regulations relating to licenses, health (including, if applicable, Proposition 65 in California and Section 20-563 of the administrative code of New York City), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation that are applicable to Restaurant; and (b) with all compliance and other requirements reasonably imposed upon Restaurant by Qmenu in order to ensure Qmenu’s compliance with any such laws, rules, standard and regulations applicable to Qmenu;
5. 9.5 it has informed Qmenu of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Restaurant Product(s) and it will inform Qmenu of any such warnings, charges, opt-ins, and instructions that become required in the future;
6. 9.6 it will not make Restaurant Product(s) available through the Services at a price higher than the amount Restaurant is charging for similar products or services through any comparable platform for food delivery services.
7. 9.7 it will disclose common allergens in any Restaurant’s menu items listed on the Services;
8. 9.8 it will only list menu items or products for sale, product descriptions, and prices on the Services;
9. 9.9 it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Restaurant’s menus on the Services or request delivery of any age-restricted products through the Services without first entering into a separate agreement with Qmenu memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold;
10. 9.10 it will report taxes to proper authorities and be responsible for all of its taxes (for the avoidance of doubt, Qmenu does not report or otherwise manage sales tax remittance);
11. 9.11 it will not disclose any information related to a delivery driver or a Customer to a third party (except as required to comply with law or pursuant to a court order); and
12. 9.12 it will comply with the guidelines Qmenu publishes that govern any content Restaurant posts on the Services.
10. Termination. Restaurant has the right to terminate your account at any time by sending a cancellation request to support@qmenu360.com. Subject to earlier termination as provided below, Qmenu may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Qmenu may also terminate this TOS upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. Qmenu reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Restaurant Content on the Service (if any) may be permanently deleted by Qmenu upon any termination of your account in its sole discretion. However, all accrued rights to payment and the terms of Sections 7, 9 and 11-21 and shall survive termination of this TOS.
11. DISCLAIMER OF WARRANTIES. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Qmenu or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Qmenu EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT Qmenu DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM Qmenu OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
12.LIMITATION OF LIABILITY.
1. 12.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL Qmenu BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
2. 12.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, Qmenu’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13. Indemnification. Restaurant shall defend, indemnify, and hold harmless Qmenu from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Restaurant Content, or your other access, contribution to, use or misuse of the Service. Qmenu shall provide notice to you of any such claim, suit or demand. Qmenu reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Qmenu’s defense of such matter.
14. Assignment. Restaurant may not assign this TOS without the prior written consent of Qmenu, but Qmenu may assign or transfer this TOS, in whole or in part, without restriction.
15. Google My Business Listing. The Restaurant agrees that in order to more effectively promote the Restaurant’s business online (including adding Qmenu’s online ordering link to the Restaurant’s Google My Business listing, or “GMB”), the Restaurant shall grant Qmenu permission to own and manage the Restaurant’s GMB, and to modify GMB online ordering links, including removal or re-prioritization of GMB ordering links for entities other than Qmenu. Restaurant retains the right to have ownership and management of the Restaurant’s GMB returned to the Restaurant or transferred to any other person or business designated by the Restaurant at any time.
16. Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that these TOS are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Qmenu in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
17. English Language Controls. Any translation of these TOS or summary of the terms thereof is provided solely for your convenience and this English language version of this TOS controls in the event of any discrepancy. Any translation or summary of the terms provided may not accurately represent the information in this version.
18. Governing Law. This TOS shall be governed by the laws of the State of Georgia without regard to the principles of conflicts of law. Unless otherwise elected by Qmenu in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Georgia for the purpose of resolving any dispute relating to your access to or use of the Service.
19.Dispute Resolution by Binding Arbitration.
1. 19.1 This Section 19 is referred to in this TOS as the “Arbitration Agreement.” Restaurant agrees that any and all disputes or claims that have arisen or may arise between Restaurant and Qmenu, whether arising out of or relating to this TOS (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if Restaurant’s claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on Restaurant’s behalf. Restaurant agrees that, by entering into this TOS, Restaurant and Qmenu are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
2. 19.2 RESTAURANT AND Qmenu AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH RESTAURANT AND Qmenu AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
3. 19.3Pre-Arbitration Dispute Resolution
  1. (a) Qmenu is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@qmenu360.com or calling (404) 382-9768. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Qmenu should be sent to 115 Perimeter Center Place Suite 1025, Atlanta, GA 30346 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Qmenu and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Qmenu may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Qmenu or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Qmenu is entitled.
4. 19.4Arbitration Procedures
  1. (a) Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these TOS as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the TOS and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
  2. (b) Unless Qmenu and Restaurant agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Restaurant’s claim is for $10,000 or less, Qmenu agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Restaurant’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
5. 19.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
6. 19.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
7. 19.7 Severability. Without limiting the severability provision in Section 16 of this TOS, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section 19.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 19.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the TOS will continue to apply.
8. 19.8 Future Changes to Arbitration Agreement. Notwithstanding any provision in this TOS to the contrary, Qmenu agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Qmenu written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
20. Privacy. Please visit https://www.qmenu360.com/privacy.html or the "Privacy Policy" section of our Mobile App to understand how Qmenu collects and uses personal information.
21. DMCA. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Qmenu will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Qmenu’s Copyright Agent at support@qmenu360.com (subject line: “DMCA” Takedown Request”). Restaurant may also contact us by mail at:

Attention: Copyright Agent

Qmenu, Inc.

115 Perimeter Center Place Suite 1025, Atlanta, GA 30346

Notice: To be effective, the notification must be in writing and contain the following information:
1. • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. • a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. • a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
4. • your address, telephone number, and email address;
5. • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
6. • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:
1. • your physical or electronic signature;
2. • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
3. • a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
4. • your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Qmenu will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Qmenu’s sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Qmenu has adopted a policy of terminating, in appropriate circumstances and at Qmenu ‘s sole discretion, members who are deemed to be repeat infringers. Qmenu may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
22.Mobile Services and Software
1. 22.1 Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device, and (iii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent Restaurant access the Service through a mobile device, Restaurant’s wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by Restaurant’s carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, Restaurant agrees that we may communicate with Restaurant regarding Qmenu and other entities by SMS, MMS, text message, or other electronic means to Restaurant’s mobile device and that certain information about Restaurant’s usage of the Mobile Services may be communicated to us. In the event Restaurant changes or deactivates its mobile telephone number, Restaurant agrees to promptly update Restaurant’s Qmenu account information to ensure that Restaurant’s messages are not sent to the person that acquires Restaurant’s old number.
2. 22.2 Mobile App License: Subject to these TOS, Qmenu hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App on another device on which you also agreed to these TOS. Each instance of these TOS that Restaurant agrees to in connection with downloading a Mobile App grants Restaurant the aforementioned rights in connection with the installation and use of the Mobile App on one device.
3. 22.3 Third-Party Distribution Channels: Qmenu offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If Restaurant obtains such Software through a Distribution Channel, Restaurant may be subject to additional terms of the Distribution Channel. These TOS are between Restaurant and us only, and not with the Distribution Channel. To the extent that Restaurant utilizes any other third-party products and services in connection with Restaurant’s use of the Service, Restaurant agrees to comply with all applicable terms of any agreement for such third-party products and services.
4. 22.4 Apple-Enabled Software: With respect to Mobile Apps that are made available for Restaurant’s use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these TOS, the following terms and conditions apply:
  1. • Qmenu and Restaurant acknowledge that these TOS are concluded between Qmenu and Restaurant only, and not with Apple Inc. (“Apple”), and that as between Qmenu and Apple, Qmenu, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
  2. • You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
  3. • Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that Restaurant owns or controls, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
  4. • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
  5. • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, Restaurant may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to Restaurant; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Qmenu’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
  6. • Qmenu and Restaurant acknowledge that Qmenu, not Apple, is responsible for addressing any claims of Restaurant or any third party relating to the Apple-Enabled Software or Restaurant’s possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
  7. • In the event of any third-party claim that the Apple-Enabled Software or Restaurant’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Qmenu and Apple, Qmenu, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  8. • Restaurant represents and warrants that (a) Restaurant is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) Restaurant are not listed on any U.S. Government list of prohibited or restricted parties.
  9. •
    If Restaurant has any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Qmenu as follows:
    
    Qmenu, Inc.
    
    115 Perimeter Center Place Suite 1025, Atlanta, GA 30346
    
    support@qmenu360.com
  10. • Restaurant must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., Restaurant’s wireless data service agreement.
  11. • Qmenu and Restaurant acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOS with respect to the Apple-Enabled Software, and that, upon Restaurant’s acceptance of the terms and conditions of these TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOS against Restaurant with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
5. 22.5 Google-Sourced Software: The following applies to any Mobile App Restaurant download from the Google Play Store (“Google-Sourced Software”): (a) Restaurant acknowledges that these TOS are between Restaurant and Qmenu only, and not with Google, Inc. (“Google”); (b) Restaurant’s use of Google-Sourced Software must comply with Google’s then-current Google Play TOS; (c) Google is only a provider of Google Play where Restaurant obtained the Google-Sourced Software; (d) Qmenu, and not Google, is solely responsible for Qmenu’s Google-Sourced Software; (e) Google has no obligation or liability to Restaurant with respect to Google-Sourced Software or these TOS; and (f) Restaurant acknowledges and agrees that Google is a third-party beneficiary to these TOS as it relates to Qmenu’s Google-Sourced Software.
6. 22.6 Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: https://www.qmenu360.com/open-source-software.html. If required by any license for particular open source software, Qmenu makes such open source software, and Qmenu’s modifications to that open source software (if any), available by written request to support@qmenu360.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.