Thank you for selecting the services offered to you by Modisoft Inc. and/or its subsidiaries ("Modisoft," "we," "our," or "us"), on this website. These General Terms of Service together with Modisoft’s Privacy Statement provided to you on the website or documentation for the Modisoft services you have selected and the Additional Terms and Conditions for the Services (collectively, the "Agreement") govern your use of this website and the Modisoft online services to which you are granted access under this Agreement, including but not limited to programs, components, internet-based services, content, technology, tools, updates, help content, and new releases (collectively, the "Services"). This Agreement constitutes a legal agreement between you ("you" or "your") and Modisoft By clicking "I AGREE" ("Register" on Sign up page on Modisoft website) and/or accessing or using the Services, you indicate that you understand and agree to the terms of this Agreement. If you do not agree to the terms of this Agreement, you are not granted any rights in the Services, and you will not be able to access or use the Services. Your access to or use of any Services may also be subject to your acceptance of separate agreements with Modisoft and/or third parties. This Agreement incorporates by reference applicable program, subscription, activation, ordering and pricing terms provided to you online or offline for the Services selected by you and for other Modisoft services made available to you through these Services, which may be subject to change from time to time. These terms will also govern your continued purchase and use of the Services, including such additional Modisoft internet-based services made available to you through the Services you have selected.
Subject to the terms of this Agreement and any applicable payments, Modisoft grants you a personal, limited, nonexclusive, nontransferable license, during the initial term of the subscription and any applicable renewal term or other period of use provided in the activation and ordering terms, to access and use the Services, solely for the purpose described in the Modisoft description for the Services, and, if applicable, solely by such number of authorized users for which the applicable fee has been paid by you. Except as expressly permitted herein or by applicable law, you must not, nor allow a third party to, do any of the following:
The Services are licensed not sold, and Modisoft reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. Modisoft and its licensors, where applicable, own all right, title and interest in and to the Services (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Services by whomever made. Modisoft does not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.
Fees for the Services are charged by you on a monthly subscription basis. The following terms apply to such payments. Payments are paid in U.S. dollars and credit cards/Bank ACH will be charged in U.S. dollars unless otherwise indicated in program ordering and pricing terms provided to you on the website and/or in the program terms for the Services you have selected. The Services will be deemed accepted by you upon acceptance of this Agreement for trial versions (if applicable) of the Services and upon acceptance of this Agreement and payment of the applicable fees and/or subscription fees for paid for versions of the Services. Access to the Services will begin:
If you registered for a trial use of the Services ("Trial Period"), you will have the entire Trial Period within which to purchase the Services you are using in order to retain any Content (as defined below in Section 9) that you have posted, uploaded or entered into websites made available through the Services during the Trial Period. If you have not purchased the Services by the end of the Trial Period, all of the Content will be deleted. Modisoft is not responsible for any damages to you in the event you decide not to purchase the Services and Modisoft deletes the Content after the Trial Period expires. BY YOUR USE OF THE TRIAL VERSION OF THE SERVICES YOU UNDERSTAND AND AGREE THAT AFTER THE AMOUNT OF TIME SPECIFIED IN THE WEBSITE OR DISCLOSED DURING THE ORDERING PROCESS FOR THE SERVICES YOU HAVE PURCHASED, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE SUCH TRIAL SERVICES OR ANY DATA YOU HAVE ENTERED INTO SUCH SERVICES UNLESS YOU PURCHASE THE APPROPRIATE FULL VERSION OF SUCH SERVICES.
Your registration information to use the Services must be accurate, current and complete as prompted in the sign-up process (the "Registration Data"). If you provide any Registration Data that is not accurate, current or complete, and do not promptly update your Registration Data, or Modisoft has reasonable grounds to suspect it is not accurate, current or complete, Modisoft may, in its sole discretion, suspend or terminate your account and refuse any current or future access and use of the Services or portion.
COMMUNICATION, CONDUCT, CONTENT OF The Services may include a feature that allows you to exchange helpful information with other users of the Services and the public. Internet access is required to use these communication facilities. Please respect and interact with other users as you would in any public arena when using such features. You are responsible for exercising your judgment in evaluating and acting on (or ignoring) other users' communication sessions. Modisoft does not endorse and is not responsible for the accuracy of the content in these facilities and will not be liable for any damages incurred as a result of the submission, viewing or use of any such content. Users may post hypertext links to content hosted and maintained by third parties. Modisoft has no obligation to monitor these linked sites and is not responsible for them. Your access to any linked sites is at your own risk. Do not reveal information that you do not want to make public. You also agree to comply with applicable Modisoft discussion board policies made available to you for the Services you have selected.
You agree to defend, indemnify and hold Modisoft Inc, its Suppliers as defined below, its corporate affiliates, officers, directors, employees, subsidiaries and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorney’s fees) resulting from or arising out of a claim that your Content infringes or misappropriates the intellectual property rights, or otherwise violates any other right, of a third party or a claim resulting from or arising out of your breach or alleged breach of this Agreement.
You may be made aware of or offered services, features, products, applications, online communities, rewards or promotions provided by Modisoft (the "Modisoft Services"). If you decide to use the Modisoft Services, you may be subject to additional terms and conditions governing these Modisoft Services and separate fees may apply. You acknowledge that in accessing certain Modisoft Services through the Services you may upload or enter certain data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You hereby grant Modisoft permission to use information about your business and usage experience to enable us to provide the Modisoft Services to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services Modisoft may provide to you in the future. You also grant Modisoft permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally to improve services and to compare business practices with other company standards. We may use your data to create, market or promote new Modisoft offerings to you and others.
Modisoft offers a rewards program known as MRewards. If you to sign up for MRewards and/or any other loyalty programs which may be offered by Modisoft, you acknowledge and agree to such Terms and Conditions as stated herein and also agree to be bound by such Terms and Conditions as are promulgated under said rewards and/or loyalty programs, which may be updated from time to time.
LIMITATION OF LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF MODISOFT INC, ITS AFFILIATES AND SUPPLIERS, AND YOUR EXCLUSIVE REMEDY FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY AND/OR DUE FROM THE REGISTERED USER FOR THE SERVICES TO MODISOFT INC, ITS AFFILIATES OR ITS SUPPLIERS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MODISOFT INC, ITS AFFILIATES AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND (B) DAMAGES RELATING TO TELECOMMUNICATION FAILURES, INTERNET AND ELECTRONIC COMMUNICATIONS FAILURES, DELAYS OR LIMITATIONS, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET MODISOFT SYSTEMS REQUIREMENTS, TAX POSITIONS TAKEN BY YOU; ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MODISOFT INC, ITS AFFILIATES AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MODISOFT AND YOU. MODISOFT WOULD NOT HAVE PROVIDED THIS SOFTWARE WITHOUT SUCH LIMITATIONS.
Modisoft may change this Agreement from time to time effective upon posting of the modified Agreement on its website. Please review the Agreement periodically on this website for changes. Modisoft has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, upon reasonable notice, including but not limited to posting information concerning such change in the Services selected by you or on an Modisoft sponsored website. Your continued use of the Services after Modisoft Inc's publication of any such changes shall constitute your acceptance of this Agreement as modified.
You acknowledge that this website, the Services, and the software made a part of the Services are subject to U.S. export control regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the Services, directly or indirectly, in violation the U.S. export administration laws and regulations to any country or end user; or to any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that the Services may include technical data subject to such U.S. export regulations.
In connection with your use of the Services, you may be made aware of services, products, offers and promotions provided by third parties who are not affiliated with Modisoft ("Third Party Products"). If you decide to use any Third-Party Products, you do so at your own risk and are responsible for reviewing the terms governing such Third-Party Products. You authorize Modisoft to use and disclose your contact information, including name and address, for the purpose of making the Third-Party Products you choose available to you. You agree that the third party, and not Modisoft Inc, is responsible for the performance of the Third-Party Products. The Services may contain or reference links to websites operated by third parties ("Third Party Websites"). Modisoft is not responsible for the content of, nor any link contained in such Third-Party Websites. The inclusion of any Third Party Website link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Modisoft of any data contained in, or services made available through any Third Party Website. You acknowledge that linked Third Party Websites may contain terms and privacy policies that are different from those of Modisoft. Modisoft expressly disclaims any liability for use of such Third-Party Products and Third-Party Websites.
GOVERNMENT. The software that forms a part of the Services is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government end users who access or use the Services, acquire a license to use the software with only those rights set forth herein.
This Agreement is the complete agreement between you and Modisoft and sets forth the entire liability of Modisoft, its corporate affiliates and its Suppliers and your exclusive remedy with respect to the Services and its use. Any modification or waiver of the terms herein by Modisoft must be in a writing signed by an authorized representative of Modisoft and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be interpreted to accomplish the objectives of such provision to the fullest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement may not be assigned by you without the prior written approval of Modisoft, but may be assigned without your consent by Modisoft to (a) a parent or direct or indirect subsidiary, (b) in an acquisition of the assets including the Services, in whole or in part, (c) a successor by merger. Any assignment in violation of this Section will be void. This Agreement will be governed by California law, without regard to its conflicts of laws principles, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Harris County, Texas or federal court for the Southern District of Texas, Houston Division.
Modisoft will not be liable for any loss or over payments to any party by the customer including any error which might arise in calculation of state taxes, federal taxes or payroll taxes, due to improper account settings.
Any replacement request for replacement of equipment and hardware purchased through our online shopping portal, must be made within 10 calendar days of receiving the delivery of equipment. Modisoft will forward same request to the distributor. Ultimate decision to replace the equipment would be with the distributor of the subject equipment. Modisoft will not be liable for any rejection by the distributor to replace the equipment. Customer will responsible for shipping the equipment to distributor in its original packing and with its complete set of parts in original conditions. external packaging should be used to retain the original condition of parts and its boxes. Refunds will not be issues if any parts and/or boxes are damaged.
mPOS Customers opting to avail merchant account services from third party processing companies to integrate with mPOS will be required to pay additional fee/charges on per credit card terminal basis.
Mobile access to the Services requires an active subscription, internet access, and may not be available for all mobile devices or telecommunication providers. You will need to check the Services website to ensure your mobile devise and telecommunications provider is compatible with the Services. Modisoft is not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by Modisoft at any time with reasonable notice to you. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider.
PASSWORDS. You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact Modisoft if you become aware of any unauthorized access to your account. The Services may be periodically updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to these updates.
Thank you for selecting Modisoft software (the "Software"). This license agreement in addition to the Modisoft Terms of Service (the "Agreement") is a legal agreement between the Licensee, a single legal entity identified in the registration process provided as part of the start-up interview ("Licensee", "you"), and Modisoft ("Modisoft" "we", "our" or "us").
By clicking "ACCEPT/AGREE/REGISTER", Licensee indicates that it has read and understood, and assents to be bound by, the terms of this Agreement. If the person clicking on the "ACCEPT/AGREE/REGISTER" button is an individual working for Licensee ("Agent"), such person agrees to the terms and conditions of this Agreement on behalf of Licensee and certifies that he/she is an Agent of Licensee and has all necessary authority to act on Licensee's behalf, including the authority to bind Licensee to the terms and conditions of this Agreement.
If Licensee does not agree to the terms of the Agreement, Licensee is not granted any rights whatsoever in the Software. If Licensee does not agree to be bound by these terms and conditions, Licensee should not click on the "ACCEPT/AGREE/REGISTER" button, and may not access or otherwise use the Software or Services.
The Software is licensed on a monthly subscription basis
Licensee may notify Modisoft to cancel the subscription prior to the beginning of each Renewal Term.. If your subscription is a monthly subscription basis, you must notify Modisoft in writing 15 days prior to the end of the current month. If your subscription is an annual subscription basis, you must notify Modisoft in. in writing 15 days prior to the end of the current year subscription of your intent to cancel. Licensee's rights to use the Software may be terminated by Modisoft immediately and without notice if Modisoft is unable to debit Licensee's or its agent's Card in accordance with this Agreement.
Prior to cancelling a subscription, it is recommended that Licensee download any and all data it saved on Modisoft servers. Modisoft will delete all data stored, saved and/or contained within Licensee’s account thirty (30) days after a subscription is terminated. It is recommended Licensee download reports in Excel/PDF while the account is active and prior to cancelling services to ensure Licensee does not lose any account information. No access or data retrieval will be available to a Licensee after the subscription is cancelled and the data is terminated.
Licensee acknowledges and agrees that in order to provide Licensee with access to and use of the Software and Services, Modisoft may provide Licensee Access Information and Account Data to
Licensee grants Modisoft permission to aggregate any previous and/or future uploaded, non-personally identifiable account data with that of other users of the Service. You permit Modisoft to use that aggregated data to improve services, issue promotions, and provide ways for you to compare business practices with other users.
Modisoft shall have the right, in its sole discretion and with reasonable notice posted on the Modisoft site and/or sent to Licensee at Licensee’s email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently, including but not limited to
From time to time, Modisoft may, at its sole discretion, include new or updated beta features in the Services ("Beta Features"). We understand that your use of any Beta Feature is voluntary. You understand that once you use a Beta Feature, you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the prior non-beta version. The Beta Features are provided on an "as is" basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk.
This Policy was last updated on March 26, 2020
Modisoft has designed and developed a mobile application known as “Cartzie” and offers an online platform that allows Retailers to advertise and market their products or sale and delivery to consumers, as well as offer a rewards and loyalty program to customers using the application (the “Software”); and
WHEREAS, Retailer desires to enter into this Agreement with Modisoft for certain services for use of the Modisoft Software;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the Parties hereto agree as follows:
(a)Modisoft Service. Modisoft, through the Cartzie Software, provides an marketplace connection, using web-based technology that allows consumers to connect to delivery contractors to place order for food, beverages, and/or other goods from various convenience stores, liquor stores, smoke shops, delicatessens, restaurants and other businesses (the “Services”). Once such orders are made, the Software notifies the Retailer that a delivery opportunity is available, and the Software facilitates completion of the delivery to the consumer through the use of delivery Contractors (defined below). Modisoft and the Software is not a retail store, restaurant, delivery services, or food preparation business. Through the online platform, customers can access Retailer products, promotions, rewards and loyalty. Modisoft does not own, buy, sell or control the sale of any products sold on the platform or mobile application and holds no license to do so. All the products offered, ordered, sold or delivered under this agreement will be sole responsibility of retailers.
(b)The Parties’ Relationship. Neither Modisoft nor Cartzie is a merchant or delivery service. Modisoft and Retailer agrees that they are independent businesses whose relationship is governed by these terms. Nothing in the parties’ agreements, relationship, or transactions shall create or be construed as creating an agency, partnership, fiduciary, or joint venture relationship between Modisoft and Retailer (or any of Retailer’s employees, representatives, or agents), Retailer’s customers, or any Contractors. Except as otherwise set forth herein, each Party shall be responsible for its own expenses, profits and losses.
(c)Service Fee. Retailer shall pay Modisoft a monthly service fee as per the prevailing rate for Modisoft service or as agreed by both the parties for its use of the Software.
(d)Access to and Use of Services. Retailer may, on a non-exclusive basis, during the Term access and use Services as set forth in these Terms and through authorized means to:
i. Review, accept, decline, monitor, process and execute purchase orders and transactions with end users of legal drinking age; and
ii. Review market analyses, industry trends and other informational reports provided by Modisoft but solely for Retailer’s own educational and internal purposes. The software enabling Retailer’s access to and use of Services is in the form of “software as a service.” Modisoft is not liable if Retailer does not have compatible technology or if it accesses or uses the wrong version of Services or software. Retailer may not solicit, induce, or suggest to any end consumer who uses Modisoft’s services to use a competitive service or Retailer’s own services or solicit, induce or suggest to any end consumer to cease using Modisoft’s services.
(e)Payment for Services. As consideration for use of the Software Services to be provided by any contractor, all payments for the Services are made through the Cartzie application. Retailer will open a merchant account with a payment processing company agreed to and authorized by Modisoft. Retailer is responsible for the payment of all credit card fees and charges of the payment processing company.
(f)Delivery Fees/Charges. Retailer may arrange for delivery through their own third-party delivery channel or use the delivery and/or fulfillment partners of Modisoft (collectively, “Contractors”). Retailers using Modisoft-partnered Contractors will be billed for delivery charges which will be collected two times per week, or as otherwise agreed to by Modisoft. Retailer shall execute a Bank ACH authorization to collect the applicable delivery fees for fulfillment of any orders completed through a Modisoft delivery partner.
(g) Tips. The Software will provide customers the option to tip the Contractor for delivery of the online orders. Tips will be deposited to the Retailer’s bank account. If Retailer utilizes Modisoft’s Contractors, Retailer will be billed to collect back the tip to reimburse the same to delivery company/contractor. Retailer shall provide Modisoft a Bank ACH authorization to collect the applicable tip amount two times per week from the Retailer’s bank account.
(h) Retailer Authority.
i. All offers, deals, promotions, rewards, loyalty and solicitations, selection of products, sales including acceptance of online orders, payments, shipments or delivery of the products are at the express direction and control of Retailer, exercising its management and pricing decisions. Retailer represents and warrants that it holds and will continue to hold permit/license for the products marketed and offered to consumers. Retailers offering delivery orders for Alcoholic products (beer, wine, liquor and other alcohol) shall only accept the orders which are to be delivered within the Retailer’s Delivery Zone permitted by the Alcohol licensing authority of concerned city/state.
ii. Retailer shall, at all times, be solely responsible for controlling and managing all aspects of the sale and delivery of any products including alcoholic beverages, the selection and pricing of inventory, receipt and acceptance of orders, and the processing of payments, chargebacks and refunds.
iii. Neither Modisoft and/or Cartzie shall be responsible for the legal or illegal decisions, acts or omissions of Retailer or any third-party service provider contracted by Retailer to carry out Retailer’s activities. Retailer must perform its activities in accordance with the laws, rules and regulations governing its retail license, including taking legally required steps to verify the age of any person to whom Retailer may furnish alcoholic beverages and in determining whether a transaction or furnishing any products thereunder is safe and appropriate.
iv. Retailer is responsible for all costs and expenses in connection with the sale of products, including but not limited to shipping costs, defected or damaged product costs and exercise and sales taxes
v. Alcoholic Products. If Retailer offers alcoholic beverages for delivery, Retailer represents and warrants that (a) Retailer shall comply with all federal, state and/or local laws regarding the preparation, sale and delivery of alcohol applicable to it, including all applicable state alcoholic beverage commission requirements (as updated); (b) Retailer currently holds, and will continue to maintain, adequate permits and licenses required by any state alcoholic beverage commission to authorize them to offer alcoholic beverages for instore and delivery and will immediately notify Modisoft of any changes thereto; (c) Retailer shall be primarily responsible for ensuring compliance with state alcoholic beverage commission packaging and preparation requirements, including, when required by law, ensuring that all alcohol orders are accompanied by a food order that was prepared on-premise and that alcoholic beverages are either in the original container sealed by a manufacturer (as such requirements may be modified or superseded by regulatory, legislative, or executive action); and (d) Retailer shall accept returns of alcohol orders that were undeliverable for any reason. Furthermore, if any Contractor delivers alcoholic beverages from Retailer, the Contractor represents and warrants that (e) he/she currently holds, and will continue to maintain, either a Carrier Permit, Consumer Delivery Permit, or other permit under any Alcoholic Beverage Code of the applicable state authorizing it to deliver alcoholic beverages; (f) Retailer will be responsible for complying with all state alcoholic beverage commission requirements applicable to it, and has implemented processes and procedures, software features, and/or other precautionary measures designed to ensure compliance; and (g) orders including alcoholic beverages will only be offered to Contractors who are twenty-one years of age or older and who have undergone a background check in the last twelve months, if not sooner, and who will be responsible for ensuring that the recipient of such order is twenty-one years of age or older and not intoxicated. For the avoidance of doubt, both parties acknowledge and agree that Retailer shall have and maintain exclusive control over all alcoholic beverages purchased, stored, or sold by it, including sole control over all prices and funds from a transaction involving the sale of alcoholic beverages, and that title to all alcoholic beverages will pass directly from Retailer to the end-user and shall at no time pass to Modisoft or any Contractor.
If applicable, Retailer represents and confirms that it is licensed by the alcoholic beverage commission and/or any other licensing authority of the city/state of business operation of Retailer, namely ____________________________ to sell and deliver alcoholic beverages under the license/permit number ____________________. Retailer will maintain all licenses, permits and authorizations necessary to sell and deliver products in the State of ______________. Retailer is solely responsible for compliance of applicable laws, rules and regulations, including but not limited to alcoholic beverage control laws, laws governing the sale and delivery of products, and any other obligations under this Agreement. Upon Modisoft’s request, Retailer shall provide a copy of its current retail alcoholic beverage license to Modisoft.
vi. Customer Verification. Retailer agrees and acknowledges that any information or affirmation by customers/consumers for their name/identity in connection with the use of Modisoft and/or the Cartzie Software is not independently verified. Retailer also acknowledges that any affirmation by customers/consumers that they are over twenty-one (21) years of age is provided without independent investigation or verification or any representation as to be accurate or reliable. Retailer shall promptly notify Modisoft in writing of any notice, complaint, deficiency or other communication from any relevant alcohol beverage commission and/or licensing authority related to the Retailer’s permits or Retailer’s ability to make proper use of the Cartzie Software.
(a) Term. This Agreement becomes effective on the date Retailer registers with Modisoft or first accesses Services, whichever is earlier, and will continues monthly until terminated.
i. Either Party may terminate this Agreement for any reason at any time upon 30 days prior written notice to the other Party. Once the contract is terminated Modisoft will close all the Cartzie and Software-related services available to Retailer. Retailer is responsible for saving any data and/or information Retailer may need for future use. Modisoft and/or Cartzie is unable to retrieve and provide data after the termination date.
ii. Any material breach of a provision of this Agreement is grounds for termination by the non-breaching party. However, the non-breaching party shall provide a written notice of the alleged breach and afford the breaching party an opportunity to cure said alleged breach upon mutually agreeable terms.
(a) License Grant. Subject to the terms of this Agreement, Modisoft grants Retailer a worldwide, non-exclusive, non-transferable, non-sublicensable, non-assignable (except in connection with a permitted assignment of this Agreement), non-perpetual, revocable right and license to (i) access and use the Software for the purpose of accessing and using the Services in accordance with all laws, rules and regulations of the jurisdiction in which Retailer is located. The foregoing licenses may only be exercised by Retailer and its end users.
(b) Restrictions. Retailer shall use the Software and the Services solely for its business purposes as contemplated by this agreement. As such, Retailer agrees that only Modisoft shall have the right to alter, maintain, enhance, or otherwise modify the Software. Retailer shall not (i) reverse engineer, disassemble, de-compile, decrypt or discover the proprietary technologies or all or any portion of the Software, create or derive works from the Software for the purpose of resale or use by Retailer, anyone acting in concert with Retailer, any division, affiliate, parent or subsidiary of Retailer, or any other person or entity; (ii) merge the Software into another software product or service; (iii) translate the Software products or services into another language format; (iv) make the Software or any derivative therefrom available to anyone other than Authorized Users; (v) sublicense, sell, publish, rent, lease, or lend the Software; (vi) remove, alter or obstruct copyright notices, trademarks, branding or other legends on the Software, documentation or related materials or as reasonably designated by Modisoft; or (vii) transfer the Software in violation of this Agreement or applicable laws.
(a) Except as otherwise expressly provided herein, Modisoft’s Software and any other content, technology and information developed by Modisoft (i) is and will remain the exclusive property throughout the world of Modisoft; (ii) is protected by applicable copyright law and international treaty; and (iii) may not be reproduced, displayed, published or distributed without the express prior written consent of Modisoft. Retailer acknowledges and agrees that no title to the Software is transferred pursuant to this Agreement, and that Retailer does not obtain any rights, express or implied, in Modisoft’s Software, other than the rights expressly granted in this Agreement. To the extent that Retailer create any derivative work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted), any such derivative work is owned by Modisoft and all right, title and interest in and to each such derivative work automatically vests in Modisoft. Modisoft has no obligation to grant you any right in any such derivative work, except as otherwise expressly provided in one or more of the supplemental service and product agreements).
(b) In the event that any idea, code, technology or information is developed solely by or jointly with Retailer to be used in connection with any Modisoft content, code or technology, Modisoft will be the sole and exclusive owner of the resulting technology and will not in any manner be prohibited from utilizing, developing and/or marketing similar ideas, codes, technologies or information. To the extent that the Parties work together to create features or functionality in code, technology or other information, Modisoft shall be the sole and exclusive owner of the resulting technology and Retailer grants to Modisoft and its successors and assigns the irrevocable worldwide non-exclusive paid up, royalty-free license to use, develop, modify, reproduce, distribute, or otherwise disseminate such jointly developed ideas, suggestions, code, technology or other information for any and all purposes. Retailer will not challenge, directly or indirectly, in any manner whatsoever the right, title in interest of Modisoft and/or Modisoft’s system, nor the validity or enforceability of such rights under all applicable laws, nor will Retailer, directly or indirectly, register, apply for registration, or attempt to acquire in its name any legal protection in any jurisdiction for any proprietary rights therein, or attempt to reverse engineer, or take any other action that may adversely affect Modisoft’s right, title or interest therein. Retailer will not purport to sell or otherwise transfer Modisoft’s system and/or any of Modisoft’s product and/or service except as otherwise expressly authorized in writing by Modisoft.
(a) Confidential Information. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (the “Disclosing Party”) provided to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, the Software constitutes Confidential Information of Modisoft. Retailer agrees that it will use reasonable efforts to protect such Confidential Information as is used to protect its own confidential and/or proprietary information. Disclosures of such information shall be restricted to those individuals who are directly participating in the development, integration or customer service efforts provided for under this Agreement.
(b) Exceptions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
(c) Use and Disclosure of Confidential Information. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 6(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
(d) If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
6. INDEMNIFICATION. Retailer shall indemnify and hold harmless Modisoft from any and all loss, damage, claim, demand, cause of action, liability or expense (i) on account of damage to real, tangible and/or intellectual property, loss of business and/or injuries, including without limitation death, to all persons to the extent caused by the negligence, gross negligence or willful misconduct of the Retailer, Retailer’s employees, contractors or agents and arising out of or in connection with this Agreement, or (ii) resulting from the failure of Retailer to comply with any law applicable to it, or (iii) resulting from a security breach of its systems or software, or (iv) arising out of any claim asserted against Modisoft by a third party asserting that software or other products or technology incorporated in or comprising the Retailer’s electronic system and related software and technology violates such third party’s copyright, patent rights, trade secret rights or other intellectual property rights, or (v) arising out of the breach, violation or failure to perform any provision, representation, warranty or requirement of this Agreement. The foregoing indemnities will be contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action for which indemnity is sought, cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action, and obtaining the indemnifying party’s prior written agreement to any settlement or proposal of settlement (which agreement will not be unreasonably withheld, conditioned or delayed). Modisoft is granted the right but not the obligation to retain counsel of its choice to defend any such claim or action and Retailer shall reimburse Modisoft all fees, cost and expenses associated with such defense incurred by Modisoft.
(a) Representations and Warranties of Modisoft. Modisoft makes the following representations and warranties under this Agreement:
i. it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party;
ii. it will comply with all applicable laws, rules and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, (ii) all applicable laws related to third party intellectual property and other proprietary rights;
iii. Modisoft further agrees to (i) use commercially reasonable efforts to ensure the Software is delivered in a prompt and efficient manner using due care; and (ii) maintain its own equipment, proprietary systems and programs used in connection with providing the Software. Modisoft further represents that it will, at it own expense, promptly correct any errors which are due to the malfunction of Modisoft’s computers, operating systems, or programs used in connection with providing the Software to Retailer.
(b) Modisoft Responsibilities. Modisoft shall use commercially reasonable efforts to make the Software generally available 99.9% of the time, except for (i) planned downtime (of which Modisoft shall endeavor to give reasonable advance notice); or (ii) any unavailability caused by circumstances beyond Modisoft’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, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Modisoft’s possession or reasonable control, and network intrusions or denial of service attacks.
(c) Representations and Warranties of Retailer. Retailer makes the following representations and warranties under this Agreement:
i. it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party;
ii. the operation of its business, including without limitation the preparation and sale of food, beverage and other items, if any, will at all times comply with all applicable laws, rules and regulations in performing its obligations and activities under this Agreement, including without limitation (including those relating to regulatory permits and licenses, food safety and sanitation, the sale of alcoholic beverages and other regulated products, data protection and privacy laws, and third party intellectual property or proprietary rights, as applicable);
iii. it holds and will maintain for the entire term a retail license and permitted and required by the licensing board or authority for the city, county, and/or state (each as applicable) in which Retailer operates its store(s), as well as any alcohol beverage licensing commission for each state in which Retailer operates;
iv. the prices charged through the Modisoft Cartzie Software will not be higher than those charged to Retailer’s other customers for take-out or delivery of Retailer’s products.
(d) Retailer Responsibilities.
i. Products displayed and promoted on the Cartzie mobile application are the responsibility of the Retailers and they assume responsibility to hold valid license to sell and deliver such products.
ii. Retailer is solely responsible for maintaining current and accurate information in its account and portal, including information regarding its location, hours of operation, availability to make deliveries, scope of service area, inventory, store sales, pricing, policies for consumers and contact information for its manager of record.
iii. Retailer shall promptly review orders made through the mobile application service. Retailer is expected to complete the order within thirty (30) minutes from the Point of Sale to execute payment processing of payment card for the customer. Failure to process transaction on timely manner can risk the any payment authorization being voided by the cardholder.
iv. Retailer is expected to verify customers to ensure orders received are legitimate and that a person of legal age with valid identification will be available to receive delivery in case of alcoholic beverage orders.
v. Retailer shall use its best efforts to deliver accepted orders within one (1) hour of the placement of the order accepted through the Cartzie mobile application, or such other delivery service.
vi. Retailer can use their Contractors to deliver the products. They also have the option to use Contractors offered by Modisoft through the Cartzie Software to deliver the products.
vii. Retailer shall not use customer data for any reason other than to fulfill delivery orders and marketing required for the promotion of the Cartzie application or the promotion of Retailer. Violation of this clause may lead to immediate termination of the agreement.
viii. In case of delivery of age restricted items such as alcoholic beverage products, Retailer and its agents and employees delivering the order will verify the identity of the customer through valid and acceptable Government-issued documentation to confirm that the customer is twenty-one (21) years old or any other age required by the laws of the jurisdiction of the delivery address. Retailer is also responsible for verifying that any individual receiving delivery of alcoholic beverage products is not visibility intoxicated as defined and required by the laws for receiving alcohol products delivery. Retailer and delivery agent shall comply all the relevant laws of any state alcoholic beverage commission and/or licensing authorities in this regard.
ix. Retailer shall define the delivery zone that complies with laws governing deliveries set forth in the alcoholic beverage code/rules of the business jurisdiction of the Retailer and the delivery address of the ordering customer. Retailer will deliver alcoholic products only in the permitted jurisdiction as per their respective license/permit.
x. Retailer shall be solely responsible for compliance with all applicable federal, state, or local laws related to online sale and delivery of Alcoholic Beverages.
8. WARRANTIES. To the maximum extent permitted by applicable law, and except as expressly provided herein, the Cartzie Software and services and intellectual property provided through or in connection with the Software (Including third party materials, software and services) are provided to Retailer on an” As Is”, “Where Is” and “As Available” Basis without Warranty of any kind, (All of which are hereby disclaimed), and modisoft HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, NON-INTERFERENCE AND NON-INFRINGEMENT, and all warranties implied from any course of dealing or usage of trade. MODISOFT DOES NOT WARRANT THAT THE FAVOR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. To the maximum extent permitted by applicable law, Modisoft makes no representation, warranty or guaranty of any results of any kind for Retailer. Modisoft may introduce Retailer to third party delivery or fulfilment service provider. Modisoft will not assess legality or ability of any third party service provider and make no warranty or guaranty as to their reliability. Retailer acknowledges that the operation of the Cartzie Software may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Modisoft shall not be responsible to Retailer or others for any such interruptions, errors, or problems or an outright discontinuance of the Cartzie Software nor for any guarantee of results with respect to the Modisoft services or Cartzie Software. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
(a) Compliance with Laws. Retailer represents and warrants that, during the term of this Agreement, it will comply with all laws, rules and regulations applicable to the use of the Software, including any laws, rules and regulations applicable to Retailer’s industry.
9. LIMITATION OF LIABILITY. To the Maximum Extent permitted by Applicable Law, In no event shall Modisoft’s aggregate liability exceed the amounts actually paid or payable by Retailer in the six (6) month period immediately preceding the event giving rise to such claim to the maximum extent permitted by applicable law, in no event must Modisoft be liable for any indirect, punitive, special, exemplary, incidental, consequential or exemplary damages, loss of use, data or profits, or any other damages or losses of any type of kind arising out of, or in any way connected with these terms or any services or intellectual property provided by Modisoft (including any third party materials, software from or arising out of the sale, purchase, dDelivery or consumption of alcoholic beverages, including any claim, demand or damages arising from any transaction between Retailer and any consumer through use of services, from or out of any relationship between Retailer and any third party service provider, or from or out of any advertising through services, however caused and under any theory of liability, whether in contract, strict liability or even if Modisoft has been previously advised of the possibility of such damages. Modisoft will not be a party to transactions, disputes or indulge any negotiations between Retailer and any third parties. Each party acknowledges that the foregoing limitations are an essential element of the agreement between the parties and that in the absence of such limitation these terms would be substantially different.
(a) Governing Law. These Terms should be governed by and construed in accordance with the Laws of the State of Texas, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with these Terms, except for those seeking injunctive relief, will be brought exclusively in the state or federal court located in state of Texas. The Parties each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims or disputes and waive any objection as to inconvenient forum.
(b)Dispute Resolution. Any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach, validity or termination thereof, shall be finally settled by binding arbitration in Austin, Texas under the American Arbitration Association Commercial Arbitration Rules (together the “AAA Rules”) by one neutral arbitrator appointed in accordance with the AAA Rules. The arbitrator shall apply Texas law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitrator shall have the power to decide all questions of arbitrability. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration requirement and without any abridgment of the powers of the arbitrator. RETAILER AGREES TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
(c) Assignment. Retailer may not assign this Agreement to any third party without first obtaining Modisoft’s prior written consent, but otherwise this Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and assigns.
(d) Force Majeure. Failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, emergency, unavailability of services or materials, or other causes beyond the reasonable control of the party and which could not have been avoided by the party’s use of due care shall not be deemed a breach of this Agreement, and if any time period for performance is involved, such period shall be deemed extended accordingly. This provision does not apply to the payment of monies.
(e) Severability. The provisions of this Agreement are severable. Should any provision, part of a provision or term be declared or determined by any court of competent jurisdiction to be illegal or invalid, the validity and enforceability of the remaining parts, terms, and provisions shall not be affected thereby.
(f) Notice. Any notice or writing required or permitted to be given or delivered to a party under this Agreement will be deemed effective if given in writing and sent by world-class overnight courier service (such as Airborne, DHL, UPS, or Federal Express) or by registered mail or certified mail, postage prepaid, return receipt requested, addressed to the party at the address set forth in the introductory paragraph or such other address as the party will have designated by notice made in accordance with the provisions of this paragraph. Notice shall be deemed effective if given via electronic mail (email). Notice by any other means shall be deemed effective when actually received and understood by the other party
(g) Terms and Conditions. The Terms and Conditions applicable to the Modisoft Services and Software is available at https://www.modisoft.com/terms.html and is incorporated herein by reference. Modisoft may update these Terms and Conditions at any time by posting an amended Terms & Conditions on its website. Any amended Terms and Conditions shall become effective upon posting.
(i) Entire Agreement. These terms and the registration form completed by Retailer contain the entire agreement and understanding between the Parties and supersede and replace all other prior and contemporaneous agreements between the Parties. These Terms may not be amended by Retailer except in a written instrument signed by Modisoft.
(j) Amendment. This Agreement may not be amended or modified by the Parties in any manner, except by written mutual consent.