Provider Terms & Conditions
These Optimization Terms & Conditions (“Terms and Conditions” “Agreement”) is made between Vapemenu.com, Inc, a Florida Corporation (“Vapemenu” “Party”) and you (“Provider” “Party”)
AGREED UPON FACTS
A. Vapemenu is a cloud based application offering a digital, interactive menu for E-Cigarette Retailers (“User”).
B. The parties herein desire to agree to these Terms and Conditions by which Vapemenu will optimize Provider’s presence within the Vapemenu network.
C. Vapemenu is the sole owner of all User accounts, whether sourced by Vapemenu or Provider.
IT IS NOW AGREED among the parties as follows:
1. The above Agreed Upon Facts are hereby made a part of the Terms and Conditions.
2. Liability. Provider agrees NOT to hold Vapemenu liable for any injury or issues surrounding neither hardware nor software, be it damage, loss or lack of functionality. If Provider is alerted to any irregularities with Provider content embedded on User screens, Provider is to alert Vapemenu who agrees to engage in best efforts to rectify irregularities in a timely manner.
3. Provider Payments. Provider agrees to pre-purchase optimization services by way of free.vapemenu.com online store.
4. Vapemenu Obligations, Covenants and Responsibilities. Vapemenu agrees to embed content as received by provider into all applicable Vapemenu user accounts. Vapemenu shall furnish Provider a report with all accounts optimized which shall act as a receipt of services rendered.
5. Provider Obligations, Covenants and Responsibilities. Provider agrees to furnish Vapemenu with all requested content necessary for Vapemenu to optimize Provider presence within User accounts. Provider confirms that any content furnished to Vapemenu has been approved for uploading into relevant User accounts.
6. Screen Content. Vapemenu and Provider shall not display content that is defamatory, obscene, indecent, violently graphic or discriminatory against any class of persons.
7. Provider Content. Provider media content within User account shall be limited to products carried in-store by specific User. Once media content has been furnished, Provider may not request changes to content within User accounts. Provider acknowledges that individual Users may adjust their menu and modify/delete Provider content after it has been embedded into User accounts by Vapemenu.
9. Vapemenu Service. Provider acknowledges that the Service, Vapemenu.com and Provider’s data on Vapemenu servers may not be available at all times and without interruption. Vapemenu will not be responsible for loss of service or functionality due to slow or unreliable Internet connections. Vapemenu does not guarantee that Provider data maintained on Vapemenu will be free of loss, virus, corruption, or error. Vapemenu agrees to engage best efforts to rectify any interruptions to service or loss of functionality in a timely manner.
10. Limitation of Liability. In no event shall Vapemenu’s liability arising out of or related to this Agreement, however caused, and whether arising under contract, tort (including negligence) or any other theory of liability exceed the amounts received by Vapemenu from Provider under the terms of this agreement. Retribution for any User specific disputes shall not exceed the amounts received by Vapemenu for the User in question.
11. Indemnification. Vapemenu agrees to indemnify and hold Provider harmless with respect to any claims or actions by third parties against Vapemenu based upon material prepared by Vapemenu, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, except where any such claim or action arises out of material supplied by Provider to Vapemenu. Provider agrees to indemnify and hold Vapemenu harmless with respect to any claims or actions by third parties against Provider based upon materials furnished by Provider. Information or data obtained by Vapemenu from Provider to substantiate claims made in advertising shall be deemed to be “materials furnished by Provider.” Provider further agrees to indemnify and hold Vapemenu harmless with respect to any death or personal injury claims or actions arising from the use of Provider’s products or services.
12. Copyright & Trademark Infringement Liability. Provider is responsible for any content it furnishes to Vapemenu. Any and all liabilities whatsoever arising out of use of content provided to Vapemenu by Provider rests with Provider.
13. Term of Agreement and Termination Rights. Once paid, Provider may not cancel or request refund for services whether complete or in process.
14. Entire Agreement. These Terms and Conditions constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. It supersedes and replaces all previous discussions, negotiations, and understandings between the parties. These Terms and Conditions may only be amended by a written amendment signed by authorized representatives of both companies.
15. Confidentiality. The parties acknowledge that, in the course of their dealings hereunder, each party (“Recipient”) may receive or otherwise become familiar with information about the other party (“Discloser”), including without limitation, information about the Discloser’s technology, client order information, client relationships, Provider information, business activities and operations and its trade secrets, which is proprietary and confidential, and is marked as such or if not marked, disclosed orally as confidential or from the circumstances surrounding disclosure should reasonably be considered to be confidential (the “Confidential Information”). Recipient hereby agrees to protect the Confidential Information of Discloser in the same manner that it protects its own information of a similar nature and to take all reasonable measure to maintain the confidentiality and secrecy to the Confidential Information of Discloser and to avoid its disclosure. Recipient shall not disclose Confidential Information to anyone except an employee, agent or contractor who has a need to know same to carry out Recipient’s obligations under this Agreement, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as those in this section. Recipient will not use Discloser’s Confidential Information other than as expressly permitted under this Agreement. Upon expiration, cancellation or termination of this Agreement, and upon Discloser’s written request, Recipient shall promptly return the Discloser’s Confidential Information or delete all copies of such Confidential Information from its possession and certify in writing to Discloser of such deletion. The foregoing notwithstanding, Confidential Information will not include any information to the extent that it: (a) is or becomes publicly available through no act or omission on the part of the Recipient; (b) is disclosed to Recipient by a third party without obligation of confidentiality with respect thereto; (c) is independently developed by Recipient’s employees who do not have and have not had access to the Confidential Information of the Discloser; (d) is released from confidential treatment by written consent of Discloser. In addition, if Recipient is required to disclose the Confidential Information or any part thereof to a tribunal or to governmental or regulatory agency, then unless Recipient is restricted by law or order, It will notify Discloser prior to such disclosure and cooperate with Discloser to allow it to obtain protective orders maintaining the confidentiality of such information.
16. Governing Law. This agreement shall be governed by California law, without regards to its conflicts of law’s provisions. Each party agrees to bring any action or proceeding arising out of or relating to this Agreement in a state or federal court in Los Angeles, CA and consents to the exclusive jurisdiction of such courts.
17. Relationship. In making and performing this Agreement, the Parties shall be deemed to be acting as independent contractors and shall not be deemed to be agents, representatives or partners. Neither Party is authorized to bind the other to any obligation affirmation, or commitment with respect to any other person or entity.
18. Successors and Assigns. These Terms and Conditions are binding upon and shall inure to the benefit of the parties hereto and their respective successors, attorneys, agents, representatives, heirs and assigns. Neither party may assign, delegate or otherwise transfer these Terms and Conditions, whether by operation of law or otherwise, without the party’s prior written consent.
19. Headings. The section headings contained herein are inserted for convenience and reference only and do not affect the meaning or interpretation of these Terms and Conditions.
20. Invalidity of Provisions. Should any of the provisions herein be deemed to be invalid by a court of competent jurisdiction, the validity and ability to enforce of the remaining provisions shall not be affected thereby, unless rendering the provisions invalid defeats the purpose for which these Terms and Conditions exist, in which case the entire Terms and Conditions shall be rendered invalid.
21. Attorney’s Fees and Costs of Suit. In the event of any action brought to enforce any portion of these Terms and Conditions, the prevailing party shall be entitled to reasonable attorney’s fees and costs of suit.
22. Mediation. In the event that any dispute arises between the parties with respect to these Terms and Conditions, then the parties shall first attempt to resolve the matter by mediation. Failure to so mediate shall cancel the provisions of paragraph 18 as against any party that so refuses mediation.