|
| |
Cost-Watch
Membership Subscriber Agreement
|
 |
|
|
Current as of November 30, 2000
BY COMPLETING THE ENROLLMENT PROCESS, YOU AGREE TO THE TERMS OF THIS
SUBSCRIBER AGREEMENT, JUST AS IF YOU HAD SIGNED THE SUBSCRIBER AGREEMENT. IF YOU
DO NOT WISH TO BE BOUND BY THIS SUBSCRIBER AGREEMENT, PLEASE DO NOT COMPLETE THE
ENROLLMENT PROCESS.
Cost Watch, ("Cost-Watch"), organized and existing
under the laws of Florida, hereby grants you a limited, non- exclusive,
non-assignable and non-transferable license to access and use the Cost-Watch
System, provided and expressly conditioned upon your agreement that all such
access and use shall be governed by all of the terms and conditions set forth in
this SUBSCRIBER AGREEMENT. You hereby acknowledge and agree as follows:
The Cost-Watch System. The "Cost-Watch System" includes, without
limitation,
(a) all access software for accessing and using Cost-Watch's on-line computer
system; and any forms and data used for our fax service;
(b) the Cost-Watch's on-line computer system including all electronic databases
and services accessed by or through Cost-Watch's on-line computer system, and
individual items within those databases or services which may constitute
independent works of authorship;
(c) all documentation and the on-line computer system; and any other software,
product, service, data, fax or information provided by Cost-Watch or obtained
through Cost-Watch's on-line computer system Mail or fax (collectively referred
to herein as "information").
Ownership and Use.
a. The Cost-Watch System is the valuable, exclusive property of Cost-Watch or
its licensors, and nothing in this Agreement shall be construed as transferring
or assigning any such ownership rights to you or any other person or entity. The
Cost-Watch System is protected by contract law and various intellectual property
laws, including domestic and international copyright laws. Except as permitted
in this Agreement, you may not copy, adapt, distribute or publicly display The
Cost-Watch System or any portion thereof in any manner whatsoever without
Cost-Watch's prior written consent. You may not remove, alter or obscure any
copyright, legal or proprietary notices in or on any portions of the Cost-Watch
System.
b. You may store in the memory of your computer and may manipulate, analyze,
reformat, printed and/or display for your use only the information received or
accessed through the Cost-Watch System pursuant to this Subscriber Agreement.
You may not resell, redistribute, broadcast or transfer the information or use
the information in a searchable, machine-readable database. Unless separately
and specifically authorized in writing by an officer of Cost-Watch, you may not
rent, lease, sublicense, distribute, transfer, copy, reproduce, publicly
display, publish, adapt, store or time-share the Cost-Watch System, any part
thereof, or any of the information received or accessed therefrom to or through
any other person or entity.
c. You agree to input online or via fax by the 20th of each month the Previous
months figures needed by Cost-Watch to produce your Reports, And to provide to
Cost-watch other data as needed in a timely manner.
Fees and Payments; Charges in the Cost-Watch System.
a. In consideration of your use of the Cost-Watch System and the license granted
in this Subscriber Agreement, you shall pay Cost-Watch any and all amounts, if
any, owing pursuant to this Subscriber Agreement via debit to your credit card
or by check pursuant to the information and authorization you provide. Any sales
or use taxes will be payable by you, if applicable. A statement of the charges
you incur shall be available to you within a reasonable time after such debit
has been made or is due and payable. Each statement shall reflect
(a) the amount of the most recent debit (or amount payable if you have direct
billing);
(b) the charges incurred by you during the preceding period
(c) any previously billed but not yet debited or paid amounts based on the rate
schedule in effect at the time you used the Cost-Watch System; and
(d) any sales or use taxes that are payable by you. If you have direct billing,
you agree to pay each such statement within fifteen (15) days after it is made
available. Your use of the Cost-Watch System will be subject to any credit
limits established by or for your credit card issuer or, where direct billing is
applicable, by limits established by Cost-Watch. Further, you will pay a late
charge equal to the lesser of one percent (1%) per month, or the maximum rate
permitted by applicable law, on any and all payments owing under this Subscriber
Agreement that become thirty (30) days past due.
b. The rate schedule and plans in effect at the time of executing this
Subscriber Agreement are located inside the materials provided in the Cost-Watch
System and are also displayed on-line during your initial use of the Cost-Watch
System (or any portion thereof requiring additional fees); however, the fees
reflected in the rate schedule are subject to change at membership renewal upon
thirty (30) days notice to you. Any such amended rate schedule shall be deemed
accepted by you if you use the Cost-Watch System (or any portion thereof
requiring additional fees) in any manner after the effective date of such
changes. Cost-Watch reserves the right to modify these terms and conditions of
this Subscriber Agreement, our privacy statement and the Cost-Watch System.
Cost-Watch shall use reasonable efforts to notify you (including by facsimile,
email or, if available, network message) in advance of or concurrent with such
change. Such modifications may include, without limitation, changes in prices,
implementation of user priorities, implementation of rules for use by you, and
discontinuance of functional aspects of the Cost-Watch System. Cost-Watch may
also add, withdraw or modify databases within the Cost-Watch System or services
provided through the Cost-Watch System at any time in its sole discretion. All
notices and statements described above shall be displayed on-line, and such
display shall constitute effective notice under this Subscriber Agreement on the
day Cost-Watch places them on the Cost-Watch System.
Password Disclosure.
If, at any time, you learn or suspect that your password has been disclosed or
otherwise made known to any person other than yourself, you agree to immediately
notify Cost-Watch at 1-877-402-2211 and to confirm such notice in writing within
seventy-two (72) hours. Upon receiving such notice, Cost-Watch will assign a new
password to you within a reasonable period of time. Repeated reissuance and
reactivation of such passwords may be subject to Cost-Watch's standard charges.
Delays in Services.
Neither Cost-Watch nor any of its licensors, service providers or service
sponsors (including its and their officers, directors, employees, affiliates,
agents, representatives or subcontractors) shall be liable for any loss or
liability resulting, directly or indirectly, from delays or interruptions due to
electronic or mechanical equipment failures, telephone interconnect problems,
defects, weather, strikes, walkouts, fire, acts of God, riots, armed conflicts,
acts of war, or to other like causes. Cost-Watch shall have no responsibility to
provide you access to the Cost-Watch System while interruption of the Cost-Watch
System due to any such cause shall continue.
Termination.
This Subscriber Agreement and the license rights granted hereunder shall remain
in full force and effect unless terminated or canceled for any of the following
reasons:
a. upon thirty (30) days written notice by either party of its intent to
terminate this Agreement;
b. immediately by Cost-Watch if you fail to make any applicable payment to
Cost-Watch, its services providers or service sponsors when due or your
automatic credit card debit is denied for any reason;
c. immediately by Cost-Watch for any unauthorized access or use by you,
including, without limitation:
(i) concurrent access of the Cost-Watch System with identical user
identification numbers;
(ii) permitting another person or entity to use your user identification number
to access the Cost-Watch System; or
(iii) any other access or use of the Cost-Watch System except as expressly
provided in this Agreement;
d. immediately, if you fail to abide by the rules and regulations relating to
the use of, or tamper with or alter any of the software and/or data files
contained in, or accessed through, the Cost-Watch System;
e. immediately, if you transmit or receive using the Cost-Watch System (or cause
the same) any computer virus, pornographic, obscene, disparaging, defamatory, or
libelous information of any nature or form whatsoever, with respect to any other
user, company, or any other person or business entity. Cost-Watch, at its sole
discretion, shall determine whether any information transmitted or received
violates this provision; or
f. immediately, if you violate any of the other terms and conditions of this
Subscriber Agreement.
Termination or cancellation of this Subscriber Agreement shall not effect any
right or relief to which Cost-Watch may be entitled, at law or in equity. Upon
termination of this Subscriber Agreement, all rights granted to you will
terminate and revert to Cost-Watch. Except as set forth in Section 13 below,
regardless of the reason for cancellation or termination of this Subscriber
Agreement, the annual subscription fee for the first year of this Subscriber
Agreement is non-refundable for any reason. Accrued monthly flat rate fees or
usage-based access charges are not refundable.
Monitoring. You acknowledge that Cost-Watch reserves the right to, and
may from time to time, monitor any and all information transmitted or received
through the Cost-Watch System. Cost-Watch, at its sole discretion and without
further notice to you, may review, censor or prohibit the transmission or
receipt of any information which Cost-Watch deems inappropriate (such as that
specified in Section 6(f)) or that violates any term or condition of this
Agreement.
Equipment and Operation.
You shall provide and maintain all telephone and other equipment necessary to
access the Cost-Watch System, and the costs of any such equipment and/or
telephone connections or use, including any applicable taxes, shall be borne
solely by you. You shall reimburse Cost-Watch for any such costs incurred by
Cost-Watch due to use of the Cost-Watch System by you; such reimbursement shall
be billed to you and payable in accordance with Section 3 of this Agreement. You
are responsible for operating your own equipment and for familiarity with the
information (e.g., calculations and reports) used with or available through the
Cost-Watch System. Cost-Watch reserves the right to refuse assistance or to
charge additional fees if you seek assistance from Cost-Watch with respect to
such basic background information or any other matters not directly relating to
the operation of the Cost-Watch System.
LIMITED WARRANTY AND LIABILITY.
a. You acknowledge that the information provided through the Cost-Watch System
is compiled from sources which are beyond the control of Cost-Watch. Though such
information is recognized by the parties to be generally reliable, the parties
acknowledge that inaccuracies may occur and Cost-Watch and its licensors do not
warrant the accuracy or suitability of the information. FOR THIS REASON, YOU
ACKNOWLEDGE THAT THE COST-WATCH SYSTEM IS PROVIDED TO YOU ON AN "AS IS,
WITH ALL FAULTS" BASIS. COST-WATCH AND ITS LICENSORS EXPRESSLY DISCLAIM ANY
AND ALL WARRANTIES, WHETHER EXPRESS, ORAL, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE
OR COURSE OF DEALING AND ANY IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT.
FURTHER, COST-WATCH AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE
COST-WATCH SYSTEM WILL MEET YOUR REQUIREMENTS OR ARE SUITABLE FOR YOUR NEEDS.
Under this Subscriber Agreement, you assume all risk of errors and/or omissions
in the Cost-Watch System, including the transmission or translation of
information. You assume full responsibility for implementing sufficient
procedures and checks to satisfy your requirements for the accuracy and
suitability of the Cost-Watch System, including the information, and for
maintaining any means which you may require for the reconstruction of lost data
or subsequent manipulations or analyses of the information provided under the
Subscriber Agreement. YOU AGREE THAT COST-WATCH AND ITS LICENSORS (INCLUDING ITS
AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES OR
SUBCONTRACTORS) SHALL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE COST-WATCH
SYSTEM FOR ANY PURPOSE WHATSOEVER. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN
LAWS (e.g., CONSUMER LAWS) THAT DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF SUCH LAWS
APPLY, OUR EXCLUSIONS OR LIMITATIONS DO NOT APPLY TO YOU.
b. IF THERE SHALL, NOTWITHSTANDING THE ABOVE PROVISIONS, AT ANY TIME BE OR ARISE
ANY LIABILITY ON THE PART OF COST-WATCH OR ITS LICENSORS BY VIRTUE OF THIS
SUBSCRIBER AGREEMENT OR BECAUSE OF THE RELATION THEREBY ESTABLISHED, WHETHER DUE
TO THE NEGLIGENCE OF COST-WATCH OR ITS LICENSORS OR OTHERWISE, SUCH LIABILITY IS
AND SHALL BE LIMITED TO A SUM EQUAL IN AMOUNT TO TEN (10%) PERCENT OF THE SUMS
PAID TO COST-WATCH BY YOU UNDER THE TERMS OF THIS AGREEMENT OR $100.00,
WHICHEVER IS GREATER, AS LIMITED DAMAGES AND NOT AS A PENALTY. THIS LIABILITY
SHALL BE COMPLETE AND EXCLUSIVE
c. YOU ACKNOWLEDGE AND AGREE THAT COST-WATCH WILL USE REASONABLE EFFORTS TO
ASSURE THAT NO VIRUSES OR PROGRAMS WITH SIMILAR FUNCTIONS OPERATE ON, OR ARE
PASSED THROUGH THE COST-WATCH SYSTEM OR THE ACCESS SOFTWARE. HOWEVER, YOU HEREBY
ASSUME ALL RESPONSIBILITY (AND THEREBY HOLD THE COMPANY HARMLESS), BY WHATEVER
MEANS YOU DEEM MOST APPROPRIATE FOR YOUR NEEDS FOR DETECTING AND ERADICATING ANY
VIRUS OR PROGRAM WITH A SIMILAR FUNCTION.
d. THE PROVISIONS CONTAINED IN THIS SECTION SHALL SURVIVE TERMINATION OF THIS
AGREEMENT.
INDEMNIFICATION.
YOU SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS COST-WATCH AND ITS LICENSORS
(INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS,
REPRESENTATIVES OR SUBCONTRACTORS) FOR AND AGAINST ALL CLAIMS BROUGHT BY PERSONS
OR ENTITIES OTHER THAN THE PARTIES TO THIS SUBSCRIBER AGREEMENT ARISING FROM OR
RELATED TO YOUR ACCESS AND USE OF THE COST-WATCH SYSTEM, INCLUDING THE
INFORMATION OBTAINED THROUGH THE COST-WATCH SYSTEM.
No Conflicting Terms.
If there is any conflict between this Subscriber Agreement and your purchase
order, any help text, or other documents, this Subscriber Agreement shall
govern, whether such order or other documents is prior to or subsequent to this
Subscriber Agreement, or is signed or acknowledged by any director, officer,
employee, representative or agent of Cost-Watch.
Attorney's Fees.
If Cost-Watch takes action (by itself or through its representatives) to enforce
any of the provisions of this Subscriber Agreement, including collection of any
amounts due hereunder, Cost-Watch shall be entitled to recover from you (and you
agree to pay), in addition to all sums to which it is entitled or any other
relief, at law or in equity, reasonable and necessary attorney's fees and any
costs of any litigation.
Governing Law; Limitations; Venue. This Subscriber Agreement shall be
governed by the laws of the State Of Florida. To the extent allowed by
applicable law, any claims or causes of action arising from or relating to your
access and use of the Cost-Watch System contemplated by this Subscriber
Agreement must be instituted within two (1) year from the date upon which such
claim or cause arose or was accrued. Further, any such claim or cause of action
may only be brought in the state or federal courts located in Volusia County,
Florida and you agree to submit to the exclusive personal jurisdiction of such
courts.
Severability.
If any provision of this Subscriber Agreement is found to be unlawful or
unenforceable in any respect, the court shall reform such provision so as to
render it enforceable (or, if it is not possible to reform such provision so as
to make it enforceable, then delete such provision); and, as so reformed or
modified, fully enforce this Subscriber Agreement.
Entire Agreement.
This Subscriber Agreement is complete at the time you agreed to it by completing
the enrollment process, and this Subscriber Agreement constitutes the entire
agreement between the parties, and no other agreement, written or oral, exists
between you and Cost-Watch.
|
COST-WATCH MEMBERSHIP SUBSCRIBER AGREEMENT November 30, 2000
|
Restaurant