1. App La Carte License.
App La Carte is a SaaS (Software as a Service) business registered, owned and operated in New Zealand. App La Carte hereby grants Clients a nonexclusive, nontransferable, revocable license to use App La Carte during the Term as permitted hereunder.
2. Client Materials.
Client hereby grants, and App La Carte accepts, a license to use, copy, and/or publicly display, during the term, any and all trademarks, trade names, business names, logos, descriptions, menus and/or photographs of clients restaurant(s) (collectively, the Client Materials) as may be provided to App La Carte by Client. Client represents and warrants that it has the right to license the Client Materials.
3. Deployment on the app store.
Once a request has been made for an App to go live and on completion of the the payment of the setup and subscription the App will be published to the respective app stores on behalf of the client under the App La Carte iTunes and Google account unless specified by a client. The average time for an app to go live is between 2-3 weeks and is dependent on iTunes and Google Play store approval. An app may face the possibility of a rejection on an app store if the app doesn't comply with iTunes or Google Play submission guidelines.In such a case App La Carte will represent the client's case to address the cause of an app rejection.
4. Billing and Refunds.
The name that will appear on your billing statement will be App La Carte. Billing and payments will occur in US Dollars as will be billed as a monthly or yearly cycle depending on the mode of payment selected at the time of payment. If a submitted app is rejected by iTunes or the Google Play store or if App La Carte refuses submission of an app because of the likelihood of an app being rejected by an app store, a full refund will be given.
A client can terminate usage of the service at anytime by contacting and emailing the support service informing App La Carte of the same. No refunds will be given if cancellation has been made after a billing cycle.
Either party may terminate this Agreement immediately by giving the other party written notice of termination in the event that the other party: (a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an assignment for the benefit of its creditors; or (d) breaches any of its obligations under this Agreement in any material respect, which breach is not cured within ten (10) days after the breaching party receives notice of such breach from the non-breaching party. Without limiting the foregoing, in the event that the client has failed to pay any amount due hereunder within thirty (30) days following the due date for such payment, App La Carte may immediately terminate this Agreement, or, in its discretion, suspend service to Client until such payment has been received. Upon the expiration or termination of the Agreement for any reason: (a) the license(s) granted by App La Carte to Client hereunder will immediately terminate; (b) the rights and obligations of the parties under Sections 4-11 will survive such expiration or termination; (c) any amounts still due App La Carte shall remain due.
7. Warranty Disclaimer.
App La Carte makes no representation or warranty with respect to App La Carte platform, the App La Carte network, and App La Carte expressly disclaims any and all warranties, whether express, implied or statutory, with respect to App La Carte, the App La Carte network and all services provided hereunder by App La Carte, including without limitation any implied warranty of merchantability, infringement or fitness for a particular purpose, or any implied warranty arising from course of performance, course of dealing or usage of trade. App La Carte does not Warrant that App La Carte will be uninterrupted or error free.
8. Limitation of Liability.
App La Carte will not be liable to Client for any indirect, incidental, punitive, or consequential damages or for any loss of profit, revenue, data, business or use arising out of this Agreement. In no event will App La Cartes Cumulative Liability exceed the total amounts paid by Client to App La Carte during the six (6) months prior to the date of the event giving rise to the initial claim for which damages are recovered.
Any confidential or proprietary information of either party, whether of a technical, business or other nature, including but not limited to trade secrets, know-how, technology, and information relating to customers, business plans, promotional and marketing activities, finances, and other business affairs, including but not limited to the terms of this Agreement and App La Carte (collectively confidential information) disclosed to the recipient party by the disclosing party will be treated by the recipient party as confidential and proprietary. Unless specifically authorized by the disclosing party, the recipient party will: (a) not disclose such Confidential Information to any third party; and (b) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature. This section 7 will not apply to any information that; (i) was already known to the recipient party, other than under an obligation of confidentiality, at the time of disclosure by disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the recipient party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the recipient party in breach of this Agreement; (iv) was disclosed to the recipient party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the recipient party without any use of Confidential Information.
Client agrees to indemnify, defend and hold harmless App La Carte, and its officers, directors, employees, representatives and agents, from and against any and all actions, causes of actions, claims, demands, liabilities, losses, judgments, damages or expenses (collectively, Claim or Claims) which App La Carte may at any time incur, sustain or become subject to by reason of any Claim brought by a third party and: (a) arising out of the Clients breach of any provision, warranty or representation in this Agreement; (b) arising out of the Clients willful acts or omissions, negligence, or other similar wrongdoing; or (c) arising from Clients failure to comply with any law or regulation. Client will pay all costs, damages and expenses incurred by App La Carte, including but not limited to, reasonable attorneys fees and costs awarded against or otherwise incurred by App La Carte in connection with or arising from any such Claim, provided that App La Carte promptly notifies Client in writing of any such Claim, and promptly tenders to Client control of the defense and any settlement of such Claim.
Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Client without the prior written consent of App La Carte. The terms of this agreement including pricing may be changed by App La Carte from time to time and Client may be notified by App La Carte posting new terms and conditions on App La Carte website, or by email, or by other written notice. This Agreement will be constructed in accordance with the laws of New Zealand, without reference to its choice of law provisions. The courts located in New Zealand will be the exclusive venue for any claim or dispute between the parties whether related to this Agreement or otherwise and the parties hereby consent to the personal jurisdiction of those courts. The prevailing party in any dispute under this Agreement will be entitled to its costs and reasonable attorneys fees. All notices required or permitted to be given under this Agreement will be deemed given (i) three business days after being deposited in the mail, first class, postage prepaid, (ii) upon transmission, if sent by facsimile, (iii) upon delivery, if served personally or sent by any generally recognized overnight carrier, or (iv) upon transmission, if sent by e-mail and later confirmed by one of the preceding means. If any provision of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.