Online Ordering License and Subscriber Agreement

Published on: May 25, 2016

Subscription. Online Ordering includes one or more electronic publications, manuals, guides, forms, newsletters, or other materials defined in the Order Form (“Online Ordering”). FOLOS provides access to Online Ordering via FOLOS’s proprietary Internet software and hardware which are licensed to Subscriber by FOLOS subject to the terms and conditions of this agreement. Access to certain features of the Subscription may be licensed subject to additional terms. By using a subscription governed by additional terms, Subscriber agrees to all such additional terms as well as the terms and conditions in this agreement.

Credit Card Authorization. I authorize FOLOS to charge my credit card provided for setup and regular payments of my online ordering system per the terms of the Order Form and Online Ordering License and Subscriber Agreement. I understand that this authorization will remain in effect until I cancel this agreement in writing, and I agree to notify FOLOS in writing of any changes in my account information or termination of this authorization at least 30 days prior to the next billing date. If the above noted payment dates fall on a weekend or holiday, I understand that the payments may be executed on the next business day. I certify that I am an authorized user of this credit card and will not dispute these scheduled transactions with my bank or credit card company; so long as the transactions correspond to the terms indicated in this agreement.

Grant of License. Subject to the terms of this Agreement, FOLOS hereby grants to Subscriber a nonexclusive, non-transferable, non-assignable, revocable license, without the right to sublicense or assign, to have Subscriber’s employees only use the Subscription, including any programs, publications, services, features, documentation, data, information and related files solely in connection with Subscriber’s internal business operations in the United States.

Restrictions on Use. Subscriber represents, warrants and covenants that Subscriber will not transmit, display, disclose, divulge, reveal, report, publish or transfer the Subscription, including passwords, to any third party or reproduce or create derivative works based upon the Subscription or any portion thereof. Subscriber further represents, warrants and covenants that neither Subscriber nor any of its employees, subcontractors or other personnel will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of any element of the Subscription.

Responsibility for Certain Matters. Subscriber is solely responsible for maintaining security of FOLOS passwords. Subscriber is also liable for all access to and use of Online Ordering by Subscribers employees, whether or not Subscriber has knowledge of or authorizes such access and use. Subscriber will promptly notify FOLOS if it becomes aware of any unauthorized use of the Subscription and will take such action as may be reasonably necessary and legally permissible to terminate or remedy any unauthorized use of the Subscription.

Reservation of Rights. FOLOS reserves all rights not expressly granted to Subscriber herein, and no other rights and licenses are granted or will be deemed to be granted hereunder. Subscriber does not have the right to assign, transfer or sublicense to any third party any of the rights or licenses granted herein.

Ownership. Subscriber acknowledges and agrees that all the worldwide rights, title and interest to and ownership of Subscription, all patent rights, copyrights, trademarks and all other proprietary rights with respect to the Subscription shall at all times remain with FOLOS or its licensors. Subscriber will honor and retain all FOLOS’ and third parties’ copyright and proprietary right notices that appear on or in the Subscription.

Term. This Agreement will be effective as of the date of acceptance and remain in full force and effect for the term selected provided Subscriber is current in the payment of all amounts due to FOLOS hereunder, unless terminated earlier by FOLOS as provided herein.

Termination. If Subscriber terminates the License Agreement the full balance of remaining payments will be due within 30 days. FOLOS will have the right to terminate this Agreement effective immediately in the event of any breach by the Subscriber of any of the provisions of this agreement or in any event by providing thirty (30) days prior written notice.

Personal Guarantee. As a primary inducement to us to accept this License and Subscriber Agreement, the undersigned Guarantor(s), by signing the Agreement, jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance and payment by Subscriber of each of its duties and obligations to us (including, without limitation, Chargebacks and obligations in connection with credit card processing and Leased Equipment, if applicable) pursuant to the License and Subscriber Agreement, as may be amended from time to time, with or without notice. Guarantor(s) understand further that we may proceed directly against Guarantor(s) without first exhausting our remedies against any other person or entity responsible therefore to them or any security held by us or Company. This guarantee will not be discharged or affected by the death of the Guarantor(s), will bind all heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any of our successors. Guarantor(s) understand that the inducement to us to accept this License Agreement is consideration for the guaranty and that this guaranty remains in full force and effect even if the Guarantor(s) receive no additional benefit from the guaranty.

Monthly Fees. Monthly Fees shall be paid by Subscriber in accordance with the terms and conditions of the License Agreement. The applicable terms and conditions are incorporated herein by reference. Any failure to pay such fees shall be a breach of this Agreement.

Taxes. Subscriber will be responsible for, and agrees to pay, all applicable state, local, federal and governmental taxes, duties or charges that may be levied upon either party in connection with this Agreement, except for taxes based on FOLOS’s net income.

Possession and Surrender of Equipment. At the expiration of the Agreement Term, Subscriber shall surrender the Equipment to FOLOS by delivering the Equipment to FOLOS or FOLOS’s agent in good condition and working order, ordinary wear and tear excepted, as it was at the commencement of the Agreement.

Maintenance, Damage and Loss. Subscriber will, at Subscriber’s sole expense, keep and maintain the Equipment clean and in good working order and repair during the Term of this Agreement. In the event the Equipment is lost or damaged beyond repair, Subscriber shall pay to FOLOS the replacement cost of the Equipment; in addition, the obligations of this Agreement shall continue in full force and effect through the Term of this Agreement.

Limited Warranty. The performance of the Subscription varies with various manufacturers’ equipment with which it is used. FOLOS does not warrant the level of performance of the Subscription or that the Subscription or the functions or features contained in the Subscription will meet Subscriber’s requirements, or operate without interruption or be error-free.

Disclaimer of Warranties. THE SUBSCRIPTION IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND. FOLOS HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY CUSTOM OR TRADE USAGE), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, DESIGN AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FOLOS IN PERFORMING ITS OBLIGATIONS HEREUNDER WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES MADE BY FOLOS.

LIMITED LIABILITY. FOLOS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED PROFITS, REVENUES, DATA OR BENEFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ANY LEGAL OR EQUITABLE ACTION BROUGHT AGAINST FOLOS.

Choice of Law. This Agreement will be governed by the laws of the State of Colorado without regard to its principles of conflicts of laws. The parties stipulate and agree that any litigation arising from or relating to this Agreement will be filed and prosecuted in Colorado.

Aggregate Data. In connection with Subscriber’s use of the Subscription, Subscriber’s technical information may be collected (“Subscriber Data”). Notwithstanding any other provision herein, FOLOS shall have the perpetual fully paid-up right to aggregate and create derivative works from the Subscriber Data for any lawful purpose, including without limitation, compiling, using and distributing research, statistical analyses, benchmark reports and related services utilizing aggregated data derived from the Customer Data (collectively “Aggregate Data”), provided, that the Aggregate Data is used only in an aggregated form, without identifying or being capable of identifying the source of the Aggregate Data.

Force Majeure. FOLOS shall not be liable for any delay or failure in ‘its performance of any of the acts required by this Agreement, when and to the extent such delay or failure arises due to circumstances beyond the reasonable control of FOLOS, including, without limitation; any failure of or delay in performance directly or indirectly caused by acts of Subscriber, its agents, employees or subcontractors, acts of God or public enemies, labor: disputes, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire; flood, earthquakes, quarantine restrictions, epidemics, riots, strikes, any unusually severe weather conditions, or defaults of or delays by Subscriber’s employees, sub-contractors and suppliers.

Governmental Laws and Regulations. To the extent that Online Ordering is used for the purpose of complying with governmental laws, regulations or reporting, Subscriber will assume all responsibility for determining that any output from Online Ordering are accurate and complete and satisfies any governmental requirements. Subscriber will place all applicable copyright notices, on any output or reports from Online Ordering prior to providing them to any governmental agency.

Independent Contractors. Each party and its respective employees are independent contractors in relation to one another with respect to all matters arising under this Agreement. Nothing herein will be deemed to establish a partnership, joint venture, association or employment relationship between the parties.

Assignment. FOLOS, in its sole discretion, shall have the right to assign this Agreement or any rights, duties or obligations hereunder. This Agreement shall inure to the benefit of and be binding upon the permitted successors, permitted legal representatives, and permitted assignees of the parties hereto.

Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings, proposals, offers, representations, agreements and communications with respect to the Subscription. This Agreement may be modified or amended only by a writing signed by both parties. If any provision of this Agreement is unenforceable, the remaining provisions will remain in effect, to be construed as if the unenforceable provisions were originally deleted.