TERMS OF SERVICE
1. DEFINITIONS FOR THESE TERMS
"You" and "your" refer to you, either an individual or as any legal entity (including restaurants), and as a user of the Site. A "user" is someone who accesses, browses, crawls, scrapes, contributes to, or in any way uses the Site. "We," "us," and "our" refer to zMenu.
"Content" means text, software, scripts, images, photos, audio, video, and all other forms of data or communication which may be viewed on, accessed through or contributed to the Site. "Your Content" means Content that you submit or transmit to, through, or in connection with the Site, such as ratings, reviews, photos, images, descriptions of menu items, messages, and information that you publicly display or that is displayed in your account profile. "zMenu Content" means Content that we create and make available in connection with the Site. "Third Party Content" means Content that originates from parties other than zMenu or its users, which is made available in connection with the Site. "Site Content" means all of the Content that is made available in connection with the Site, including Your Content, Third Party Content, and zMenu Content.
2. CHANGES TO THESE TERMS
We reserve the right to modify the Terms from time to time. The most current version of these Terms will be posted on the Site. If you access or use the Site, you agree to be bound by the Terms effective at the time of your access to or use of the Site. You should revisit these Terms on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. We will include the date of the last revision of the Terms on the Site.
3. USING THE SITE
To access or use the Site, you must be 13 years or older and have the requisite power and authority to enter into these Terms.
B. Permission to Use the Site
We grant you permission to use the Site subject to the restrictions in these Terms. Your use of the Site is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
C. Site Availability
zMenu reserves the right to modify, update, interrupt, suspend or discontinue the Site at any time without notice or liability.
D. User Accounts
You must create an account and provide certain information about yourself in order to use some of the features that are offered through the Site. You are responsible for maintaining the confidentiality of your account password and accept all risks of unauthorized access to any data or other information you contribute to the Site. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason.
Your account is for your personal, non-commercial use only. In creating it, we ask that you provide complete and accurate information about yourself as a contributor of Content to the Site. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts.
Legal entities, including restaurants, may create separate accounts on the Site for commercial use. zMenu services provided to its restaurant customers, including the online restaurant management and order processing system, may be governed by separate Restaurant Terms of Service and other agreements in addition to these Terms.
E. Communications from ZMenu and other Users
By creating an account, you agree to receive certain communications in connection with the Site. For example, you will receive our periodic e-mail newsletter and similar communications.
4. CONTENT ON THE SITE
A. Responsibility for Your Content
You alone are responsible for Your Content, including its legality, reliability, and appropriateness. Once published, Your Content cannot always be withdrawn. You assume all risks associated with Your Content, including anyone's reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by ZMenu.
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
B. Our Right to Use Your Content
When you post, upload, or otherwise make Content available to the Site, you irrevocably grant us world-wide, perpetual, non-exclusive, royalty-free, assignable, sublicensable, transferable rights to use Your Content for any purpose. We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms. Please note that you also irrevocably grant the users of the Site and any other media the right to access Your Content in connection with their use of the Site and any other media. Finally, you irrevocably waive, and cause to be waived, against ZMenu and its users any claims and assertions of moral rights or attribution with respect to Your Content. “Use” here means use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
Aside from our right to use Your Content, you own and retain all rights to Your Content. We own or otherwise have the right to use the zMenu Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of Your Content and other Site Content, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the zMenu Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the zMenu Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the zMenu Content are retained by us.
zMenu and its licensees may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
Content available on ZMenu (including any that may have been created by users employed or contracted by ZMenu) does not necessarily reflect the opinion of ZMenu. We reserve the right to remove, screen, edit, or reinstate Your Content from time to time at our sole discretion for any reason or no reason, and without notice to you. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
5. RESTRICTIONS ON USE AND CONDUCT
As a condition of use, you promise not to use the Site for any purpose that is prohibited by the Terms. We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion. The restrictions below apply to the extent permissible by applicable law.
A. You may not post, upload, or otherwise make available through the Site any of the following:
1) Content that may infringe or violate any party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right;
2) Content that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
3) Content that violates any applicable law.
B. You also agree not to, and will not assist, encourage, or enable others to do any of the following in connection with the Site:
1) Violate the Terms;
2) Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site or Site Content (other than Your Content), except as expressly authorized by ZMenu;
3) Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Site or any Site Content;
4) Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Site or on any materials printed or copied from the Site;
5) Collect personal information about other users;
6) Use the Site in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site and related services, or that could damage, disable, overburden or impair the functioning of the Site;
7) Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Site, users of the Site, or third parties;
8) Use the Site or any Site Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses");
9) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.
6. GUIDELINES AND POLICIES
A. Guidelines for Content
1) We encourage colorful and passionate language and imagery from our users, but threats, harassment, lewdness, hate speech, or other bigotry are strictly prohibited.
2) Your contributions should be unbiased and objective. You shouldn't write reviews of your own business or employer, your friends' or relatives' business, or the businesses of other associates you may know in your networking group, for example.
3) Please ensure your contributions to the Site are relevant. For example, reviews aren't the place for complaints about a business's employment practices, political ideologies, or other matters that don't directly address the user experience with the Site or the restaurants appearing thereon.
4) Please ensure that photographs or images of menu items, entrees, and other food dishes contributed to the Site are clear and accurate reproductions of the food item and are of professional quality.
C. Copyright and Trademark Complaints/Disputes
We take intellectual property rights seriously and care about the legitimate infringement of others’ copyright or trademark rights. It is zMenu’s policy to respond to notices of infringement that comply with applicable international intellectual property law and to terminate the accounts of repeat infringers.
DMCA Agent Information: Our Registered Agent for DMCA purposes is:
If you believe that your copyright or trademark is being infringed on the Site, please send us a written notice to our registered agent at DMCA@zmenu.com with the following information:
1) Identification of the copyrighted or trademarked work claimed to have been infringed or a representative list of such works;
2) Identification of the allegedly infringing material that is to be removed, and information reasonably sufficient to permit zMenu to locate the work on the Site (e.g., the URL for the web page on which the content appears);
3) A statement that the complaining party has a good faith belief that the use of the content identified in the notice in the manner complained of is not authorized by the copyright/trademark owner, its agent, or the law;
4) A statement by the complaining party attesting, under penalty of perjury, that the information in the notice is accurate and that the complaining party is the copyright/trademark owner or is authorized to act on the owner's behalf; and
5) A physical or electronic signature, together with contact information (address, telephone number and, if available, email address) of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Be aware that if you materially misrepresent that a product or activity is infringing your trademark or copyright, you may be liable for any damages. If you are not sure whether material available online infringes your copyright or trademarks, we request that you first contact an attorney. If you believe that your content should not have been removed for alleged copyright or trademark infringement, you may send us a written counter-notice to DMCA@zmenu.com with the following information:
1) Identification of the copyrighted or trademarked work that was removed, and the location on the Site where it would have been found prior to its removal;
2) A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification. For trademark disputes only: information reasonably sufficient to explain why you believe you are not infringing the trademark;
3) A statement that you consent either to the jurisdiction of (a) the Federal District Court for the judicial district in which your address is located if you live in the United States, or (b) any judicial district in which zMenu is located if you live outside the United States. Please also include a statement that you will accept service of process from the person who sent the original infringement notice to zMenu, or an agent of such person;
4) Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
We will respond to all such notices and comply with applicable law. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion.
Repeat Infringer Policy:
zMenu will investigate all allegations of copyright infringement, including evaluation of all DMCA Takedown Notices and Counter-Notices and compliance therewith. zMenu will also terminate a user's account if the user is determined to be a repeat infringer, or if a user’s infringements are of sufficient concern or severity to warrant termination. Any user subject to two or more valid complaints of infringement will be deemed a repeat offender and will have their account terminated unless such user can demonstrate good cause to avoid such termination. Adoption of a repeat infringer policy does not inhibit zMenu’s right to terminate any user for any other reason or for no reason, including being annoying. An annoying person is anyone who is (capriciously or not) determined to be annoying by authorized zMenu employees or agents.
7. ZMENU ADVERTISING
8. THIRD PARTY SERVICES
You agree to indemnify, defend, and hold harmless ZMenu, its subsidiaries, affiliates, any related companies, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the "ZMenu Entities") from any and all claims, demands, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising out of or relating to (i) your access to or use of the Site, (ii) Content you submit, post, transmit, modify, or otherwise contribute through the Site, (iii) your violation of the Terms, (iv) any products or services purchased or obtained by you in connection with the Site, or (v) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. ZMenu reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. ZMenu will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF ZMENU TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THUS, SOME OF THESE LIMITATIONS MAY NOT ACTUALLY APPLY TO YOU. BY ACCESSING OR USING THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
A. YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. THE SITE IS MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE ZMENU ENTITIES MAY NOT MONITOR OR CONTROL CONTENT. THE ZMENU ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR COMPLETENESS OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, ZMENU IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS, OR METRICS MADE AVAILABLE THROUGH THE SITE.
B. THE ZMENU ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SITE, THE SITE'S USERS, OR ANY THIRD PARTY CONTENT. ACCORDINGLY, THE ZMENU ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SITE. ZMENU SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK. YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
C. THE ZMENU ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SITE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE ZMENU ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
D. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
E. ZMENU' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE ZMENU ENTITIES IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
We may translate these Terms into other languages for your convenience. Regardless of any translations, the English version governs your relationship with zMenu, and any inconsistencies among the different versions will be resolved in favor of the English version.
For any dispute you have with zMenu, you agree to first contact us and attempt to resolve the dispute with us informally. Any cause of action arising out of or related to the Site must commence within (1) one year after the cause of action arose; otherwise, the cause of action is permanently barred.
Any controversy or claim arising out of or relating to these Terms shall be settled by binding arbitration in San Francisco County, California using the English language in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment on the arbitration award may be entered in a court having jurisdiction and application may be made to such court for acceptance of any award and an order of enforcement as the case may be. Notwithstanding anything to the contrary, zMenu may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
YOU AND ZMENU AGREE THAT ALL CLAIMS SHALL BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS YOU AND ZMENU AGREE, THE ARBITRATOR MAY NOT PRESIDE OVER ANY REPRESENTATIVE OR CLASS PROCEEDING.
13. GOVERNING LAW AND VENUE
California law will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and ZMenu without regard to conflict of law provisions. Any claim brought by either party that is not subject to Arbitration under Section 12 of these Terms and that arises in whole or in part from the Site shall be decided exclusively by a court of competent jurisdiction in California. However, we reserve the right to seek injunctive relief in any jurisdiction where we deem it necessary.
A. You may terminate the Terms at any time by closing your account or otherwise discontinuing your use of the Site.
B. We may close your account, suspend your ability to use certain portions of the Site, and/or ban you altogether from the Site at any time and without notice or liability of any kind if: i) you are in default on these Terms; ii) you are engaged in illegal actions, or infringe proprietary rights, rights of privacy, intellectual property rights of any person, any third party rights, or otherwise create risk or possible legal exposure for us; iii) required by applicable laws/regulations and within the time limits as required by such laws/regulations; iv) we decide to disable the Site generally or v) for any other reason that we want or deem sufficient. Any such action could prevent you from accessing your account, the Site, Your Content, Site Content, or any other related information.
C. In the event of any termination of these Terms, your obligations to zMenu under these Terms (including, without limitation, Ownership of Content, Our Right to Use Your Content, Indemnity, and Limitation of Liability) will continue in full force and effect, and are intended to survive such suspension or termination.
D. Closing your account may include any or all of the following: i) removal of access to all or part of the services within the Site; ii) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof); and iii) barring of further use of all or part of the Site.
15. ASSIGNMENT AND GENERAL TERMS
A. The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with ZMenu's prior written consent, but may be assigned or transferred by us without restriction. Any attempt to assign rights and obligations under these Terms without consent will be void and unenforceable.
C. If any provision of the Terms is found to be unenforceable or invalid by a court of competent jurisdiction, then only that provision shall be modified to reflect the parties' intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
D. Any failure by zMenu to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights under these Terms.
E. We reserve the right to modify, update, or discontinue the Site at our sole discretion, at any time, for any or no reason, and without notice or liability.
F. We may provide you with notices, including those regarding changes to the Terms, by email, regular mail or communications through the Site.
G. The section titles in the Terms are for convenience only and have no legal or contractual effect.
Please let us know what you think of the Site, these Terms, and in general, ZMenu. When you send us any ideas, suggestions, comments, or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, and (iii) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback.
17. QUESTIONS AND CONTACT INFORMATION
If you have any questions or concerns about these Terms, please contact firstname.lastname@example.org, and we will do our best to address them.