THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN ETHOR MEDIA LTD. (“ETHOR”/”WE”/”US”) AND YOU AND IT GOVERNS YOUR USE OF THE ETHOR SOFTWARE AND SERVICES (THE “SERVICES”). IF YOU ACCESS OR USE THE SERVICES THROUGH OUR WEBSITE, YOU ARE ACCEPTING TO DO SO ON THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1.1 You must create an account in order to use the Services. To create an account, You will be asked to provide certain basic information as set out in the eThor Customer Information Form provided to you by eThor in order to purchase/use the Services. This information may include Your name, address, company/organization, telephone number and email address.
2.1 Term. The Effective Date of this Agreement is the date of first login to Your account and will remain in effect until the subscription is terminated in accordance with Section 2.2 or 2.3 below.
2.2 Termination for Convenience. You may terminate Your subscription to the Service by providing eThor with at least thirty (30) days prior written notice and termination will take effect from the end of the notice period.
2.3 Termination for Breach. Either party has the right to terminate this Agreement if the other party breaches or is in default of any obligation hereunder which default is incapable of cure or which, being capable of cure, has not been cured within seven (7) days after receipt of notice of such default.
2.4 Effect of Termination. On termination of Your subscription, You may elect to have your Content (as defined in Section 6.3) retained and backed-up by EThor for a period of 30 days at eThor’s rates indicated on request.
3.1 Set-up Fees. One-time setup fees to integrate with Your point of sale systems and locations may apply to Your subscription and will be notified to You in advance of set-up by eThor.
3.2 Subscription Fees & Invoicing. Subscription fees are indicated when you sign up to use the Services and unless stated otherwise, are charged monthly in advance. Charges are invoiced and due and payable upon receipt. If charges are not paid within thirty (30) days of the invoice date, a one and one half percent (1.5%) per month interest charge shall be assessed until date of payment. If Your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, eThor reserves the right to suspend the Services, until such amounts are paid in full.
3.3 Transaction Processing. eThor will cause transactions in respect of Your purchase of Services to be processed, and applicable fees owing by You to be collected. Subscriptions will automatically renew and the relevant fees will be processed and charged to You in full unless You notify eThor at least thirty (30) days in advance of the anniversary of a renewal period that you wish to discontinue the Services. Recurring payments for periodic subscriptions are processed on the first of each calendar month in respect of that month if You acquire Services on a monthly subscription basis and on the first day of the month You subscribed for an annual subscription.
3.4 Pre-authorized Payment. By providing a credit card to eThor as part of Your account set-up for monthly pre-authorized payments, You authorize eThor to charge Your credit card for all outstanding fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes eThor’s good and sufficient authority for so doing. If Your pre-authorized payment fails, eThor may immediately deactivate Your account and collect fees owing using other collection mechanisms.
3.5 Taxes. All charges are exclusive of all taxes. Taxes imposed by Government agencies, whether based upon the software, its use, or the Agreement, shall be paid by You.
4.1 License Grant. Subject to the terms of this Agreement and payment of the applicable fees, eThor grants You a limited, personal, non-sublicensable, internal license and right to use the Services (including the underlying software and technology contained therein) for the purpose of online ordering, marketing and promotions. Any software provided to you is licensed; not sold.
4.2 License Restrictions. You shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on eThor software & services except to the extent expressly permitted in this Agreement or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Services or eThor software; or (d) access the Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.
4.4 Lawful purposes. You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Your country, including applicable rules that govern the export or import of software. You will use the Services solely for lawful purposes. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on our website), (iii) send any unsolicited commercial communication not permitted by applicable law (including communications which violate anti-spam legislation); or (iv) endanger any part of any system or Internet connection of eThor or any third party; and (v) You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Services in Your country, including applicable rules that govern the export or import of software.
4.5 Recourse. We reserve the right to interrupt or restrict service without notice to you if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe within reason. Failure to cooperate will result in your liability for all fraudulent usage.
5.1 eThor Proprietary Rights. Except for the rights and licenses granted in this Agreement, eThor and its suppliers and licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to eThor software and services (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof and all research and development and experimental development in respect thereto). You acknowledge that only eThor shall have the right to maintain, enhance or otherwise modify eThor software and services.
5.2 Third Party Software. The Services may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Services falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of subscription.
5.3 Customer Content. As between eThor and You, You exclusively own all right, title and interest in and to the data you provide and process through the Services (“Content”). You hereby grant eThor, its subcontractors and agents a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to access and use the Content to the extent necessary to perform the services as contemplated by this Agreement and in connection with creating aggregated datasets, add-ons and delivering new services and applications. For the avoidance of doubt, eThor will only use Your Content in an anonymized, manner and will not reveal its origins. You are responsible for the accuracy and adequacy of the Content which You furnish or transmit to EThor for processing or storage via the Services. Reasonable precautions have been taken by EThor to prevent the loss, alteration or improper access to Content, but EThor does not guarantee the accuracy or security of the same.
5.4 Access to Content. The specified “billing entity” and “administrative contact” for any subscription Order becomes the “owner” of any Content in the file system managed by that entity. EThor has no ability to provide access to parties other than those assigned by the “administrative contact” of the “billing entity”. The “billing entity” is the sole owner and authority governing data sets and user access rights provided. EThor cannot provide access to or copies of any data sets other than as communicated in writing by the designated “administrative contact” for the “billing entity”.
5.5 Suggestions. EThor shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your users relating to the operation of the Services.
6.1 NO WARRANTIES. ETHOR CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. WE MAKE NO EXPRESS WARRANTY REGARDING THE SERVICES AND DISCLAIM ANY IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, INTEGRITY OF DATA, PERFORMANCE, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE NOR DOES ETHOR WARRANT ANY CONNECTION TO OR TRANSMISSION VIA THE INTERNET. WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
6.2 LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ETHOR BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES AND DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, REPLACEMETN OR RECOVERY COSTS OR OTHER COMMERCIAL OR ECONOMIC LOSS WHETHER ARISING FROM CONTRACT, EQUITY, TORT OR ANY OTHER THEORY OF LIABILITY, EVEN IF ETHOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ETHOR’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
6.3 ESSENTIAL BARGAIN. THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER ETHOR NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
7.1 Your Indemnity. You agree on demand to indemnify, defend and hold eThor its affiliates and staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) misuse of the Services.
7.2 eThor Indemnity. eThor shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such claim; provided, that You (a) promptly give eThor written notice of the claim; (b) give eThor sole control of the defense and settlement of the claim; and (c) provide to eThor all reasonable assistance, at eThor’s expense.
EThor will provide standard or premium support for the Services (depending on the form of support You have ordered) and will use commercially reasonable efforts to make the Services available (see further Support within www.ethor.com) except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond eThor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
9.1 Updates to Agreement. eThor reserves the right to modify this Agreement at any time by publishing the revised Agreement on the ethor.com website. The revised Agreement shall become effective within ten (10) business days of such publication or provision to You. Your express acceptance or Your continued use of the Services after expiry of the notice period of ten (10) business days in your place of residence, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.ethor.com/termsofservice.
9.2 Changes to Fees and Services. eThor may change the Services, any service fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services (including altering, updating or upgrading the eThor software and services) at any time upon reasonable notice to You by posting the change on sending notice via an email to the email address You provide on registration, a message on Your invoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate the Services. Your continued access to and use of the Service after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Services unless You terminate in accordance with Section 2 above.
10.1 In order to set up remote ordering, your point of sale (POS) vendor will need to provide eThor Media Ltd. access to your system or data files. By agreeing to these Terms of Service, you authorize your POS vendor to provide access to your store POS system including but not limited to the store IP address, menu files and data files to eThor Media Ltd.
10.2 You understand that your POS vendor may have specific configuration requirements in order for the POS software to work properly. You hereby authorize eThor or your POS vendor (as applicable) to make required configuration changes to your POS system or upgrade your POS software as required to meet your POS vendor’s configuration requirements.
10.3 You understand that there are security risks in providing access to computer systems or disclosing data to third parties, and you acknowledge and agree that neither eThor Media Ltd. nor your POS vendor will be liable in respect of any losses or damages caused by your granting access pursuant to these Terms of Service unless such loss or damage is due to the willful misconduct of POS vendor or eThor Media as applicable. You further acknowledge that the requirements for PCI compliance may change without notice, and it is your sole responsibility, not eThor Media Ltd or your POS vendor’s responsibility, to ensure that your locations are aware of and your business is compliant with all PCI compliance requirements.
For more information on configuration requirements and PCI compliance, please contact your POS vendor.
11.1 You are not allowed to assign this Agreement or any rights hereunder without the prior written consent of eThor. eThor is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party.
11.2 This Agreement is the entire Agreement between the parties and it supersedes all prior agreements and understandings between the parties concerning the subject matter herein.
11.3 This Agreement is governed by the laws of the Province of Alberta, and exclusive jurisdiction for any legal proceeding regarding this agreement shall be in Calgary, Alberta. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall be excluded from application to this Agreement.
11.4 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the waiving party.
Last revised: May 16, 2013