DMS SUBSCRIPTION AGREEMENT
These Terms of Service (this “Agreement”) create a binding agreement between Cornelius, Inc., with an address of 101 Regency Drive, Glendale Heights, IL 60139 (“Cornelius” or "Company") and you ("End User," "You" or “Your”). This Agreement governs your access and use of the Cornelius DMS Platform, including the Cornelius DMS Web-based and cloud-based services platform, and any related software, services and documentation as may be made be available through our website, any optimized version of our website via a wireless device or through any mobile application (collectively the “Services”). Use of the Cornelius DMS Website also is governed by the DMS Website Terms and Conditions of Use.
BY CREATING AN ACCOUNT, CLAIMING UNITS UNDER ACCOUNT, AND/OR USING ANY PORTION OF THE SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (1) YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, (2) YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (3) IF END USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF END USER AND BIND END USER TO ITS TERMS.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CORNELIUS DOES NOT LICENSE THE SERVICES TO YOU AND YOU MUST NOT ACCESS OR USE THE SERVICES. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT ACCESSES OR USES THE SERVICES. NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE), AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING THE SERVICES THAT YOU DID NOT LAWFULLY ACQUIRE THE RIGHT TO ACCESS OR USE, OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE CORNELIUS DMS PLATFORM OR ANY OTHER PORTION OF THE SERVICES.
Account Creation; Subscriptions; Renewals and Terminations
In order to use the Services, you must register and create an account and claim one or more units under the account. Depending on the level of permissions assigned to your user account, you may not have access to or be able to view or use all of the functions or features of the Services.
You may need to provide certain registration details or other information on behalf of yourself or other users to create an account and to otherwise access and use the Services. It is a condition of your access and use of the Services that all the information you provide is correct, current, and complete.
The Services are available under a basic (free) subscription plan or one or more premium (fee-based) monthly or annual subscription plans as offered when claiming and/or maintaining a unit under the account. Users may upgrade or downgrade between a basic subscription plans and premium subscription plans. Your agreement for a basic or paid subscription plan becomes binding upon your confirmation that “I have read, understood and accept the Terms and Conditions.” Each premium subscription term, will automatically renew for the agreed upon term (e.g., 1 month or 12 months), unless you cancel the subscription before the current term expires. The full amount for each renewal term will be charged on the first day of the renewal.
If You terminate your account, or a free or a premium subscription plan, your account and/or plan will become unusable and your access to the Services will be terminated. Users are not entitled to any refund of subscription fees. We are under no further obligations to you upon your termination of the subscription. Cornelius reserves the right to cancel accounts or subscription plans at any time for any reason.
FEES AND Payment
End User shall pay all fees and any expenses due and payable under this Agreement in strict accordance with the applicable subscription plan and this Agreement.
Unless otherwise specified: (i) all fees are due and payable prior to commencement of in immediately available funds; (ii) all prices are stated in U.S. Dollars; and (iii) interest shall accrue on past-due amounts at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. If any invoice for fees are not timely paid, without limiting its rights and remedies under this Agreement, Cornelius shall be entitled to suspend access to and use of the applicable Service.
Fees do not include: consulting services; travel and living expenses for services and training; the costs of any hardware; or the costs of any communications or networking service.
All fees and other amounts payable by End User under this Agreement are exclusive of taxes and similar assessments. End User is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by End User hereunder, other than any taxes imposed on Cornelius’ income.
In order to purchase a subscription, You will be required to provide credit or payment card information, your billing address and related information. You represent and warrant that you have the right to use any credit or payment card or other payment mechanism that you submit in connection with the purchase of a subscription and that you have all authority necessary to purchase a subscription using the credit card or payment mechanism that you submit. By submitting such information, you grant us the right to provide such information to third parties for the purposes of facilitating your purchase. You acknowledge and agree that we are not responsible for how any third party credit card or other payment method processor transmits, stores, uses or shares your information.
Subject to the terms of this Agreement and Your strict compliance thereof, Company grants You a limited, non-exclusive, non-sublicensable, nontransferable, revocable license during the Term to: (a) access and use the Services as made available by Company via the Cornelius DMS website, in accordance with any documentation (including user manuals, technical manuals and any other materials provided by Company, that describe the operation, use or technical specifications of the (“Documentation”), any applicable third party licenses, and this Agreement, and for so long as this Agreement is in effect; and (b) access, stream, download and/or use the Documentation as well as any content made available or otherwise accessible through the Company's websites.
End User shall be fully and solely responsible for providing any and all telephone, Internet, mobile or other communications or networking services, access, or configuration necessary for or otherwise related to its use of the Services, including compliance with all firewall and port settings, domain whitelisting settings, and any other connectivity requirements specified by Company, and further including all costs and fees thereof.
Limitations and Appropriate Use
End Users shall not: (a) use (including make any copies of) the Services or Documentation beyond the scope of the license granted under the “Access Rights” section above; (b) provide any other person, including any subcontractor, independent contractor, affiliate or service provider of You, with access to or use of the Services or Documentation; (c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Services; (d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (e) remove, delete, alter or obscure any titles, trademarks, service marks, trade names, legends, watermarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services, including any copy thereof; (f) provide use of the Services to a third party, including but not limited to providing an evaluation license to the Services to any other person or entity, or otherwise permitting any other person or entity to evaluate the Services; (g) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services; (h) use the Services or Documentation, the development of a competing software product or service or any other purpose that is to the Company’s commercial disadvantage.
End Users shall not engage in activities when using the Services that: (i) violate the law, regulation, rule, court verdicts, resolutions or orders, or administrative measures that are legally binding; (ii) infringe any intellectual property rights of the Company and/or a third party; (iii) post or transmit any objectionable content including, but not limited to, violent or sexual expressions, expressions that lead to discrimination by race, national origin, creed, sex, social status, family origin, etc.; (iv) lead to the misrepresentation of the Company and/or a third party, or intentionally spread false information; (v) interfere with the servers and/or network systems related to the Services, (vi) abuse the Services and/or servers and/or network systems related to the Services by means of BOTs, cheat tools, or other technical measures; (vi) use the Services for sales, marketing, advertisement, soliciting or other commercial purposes (except for those approved by the Company); or (viii) other activities that may be deemed by the Company to be inappropriate.
Any violation of the above limitations or restricted activities shall be deemed a material breach of this Agreement for which Company, in its sole discretion, may terminate this Agreement and your access to the Services.
Proprietary Rights and Reservation of Rights
You hereby acknowledge and agree that the Services, Documentation (including any copies thereof) and all intellectual property rights therein are the exclusive proprietary technology and materials of Company (and/or Company’s third party licensors, as may be appropriate) and are protected by copyright laws and international treaties as well as other intellectual property laws, and are provided to You solely under the limited license as described in this Agreement. Nothing in this Agreement or otherwise constitutes a sale or assignment of the software utilized or associated with the Services or any portion or copy of it. All rights not granted are expressly reserved by Company and its third party licensors. In the event that you develop any unauthorized copies, modifications, translations, adaptations, derivative works of, or improvements to, the Services or components, such items shall be exclusively owned by Company, and You hereby (i) assign and shall assign any and all rights, title, and interests in the foregoing to Company, (ii) will promptly sign any other documents necessary to perfect Company’s rights in and to the foregoing, and (iii) expressly waive any rights You may obtain inconsistent with the foregoing through application of law or otherwise. You hereby covenant that you will not assert any claim that the Services, components thereof, modifications or derivative works thereof created by or for Company infringe any intellectual property right owned or controlled by You.
As used herein, “Data” means all data, information, and other content of any type and in any format, medium, or form, that is input, uploaded to, placed into, or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of Cornelius (including its customers) or any End User, including any works, inventions, data, analyses, telemetry data, device operation and use data, and other information and materials resulting from any use of the Services by a user. Use of Services involves transmittal of Data from End User device(s) and premises to Cornelius, and storage and maintenance of such Data by Cornelius or its affiliates. Use of Services also involves access and/or analysis of certain Data maintained by Cornelius or its affiliates. End User agrees that Cornelius may use and access any and all Data maintained by Cornelius or its affiliates related to or associated with End User for purposes of providing Services to End User, for assessing and improving Services, and for assessing and improving device performance and operation. Nothing in this Agreement grants to End User any ownership in such Data, or any rights to access and use such Data other than as provided by or through the Services.
End User agrees that Cornelius may compile certain anonymous, aggregated information about the use of the Services or devices by users (the “Usage Data”). The Usage Data may include, but are not limited to device operation and performance, device use of consumables, frequency of user logins or visits to the Services, the specific features used, user IDs, and geographic and market segment information. Cornelius will have an unrestricted right to capture, store, analyze, evaluate, and use the Usage Data for its own internal business purposes, including improving the features, performance, and functionality of the Services and devices, the development of market analytics services and products, and the development of devices.
By Your use of the Services, Cornelius may provide You with notices by, but not limited to, email, regular mail, text message or SMS, MMS, push notifications, postings on the Services, telephone, or other reasonable means now known or hereafter developed. You consent to receive these notices by any and all of the foregoing means, and agree that You shall be responsible for providing any and all telephone, Internet, mobile or other communications or networking services, access, or configuration necessary for or otherwise related to such notifications, including all costs and fees thereof. You may not receive notices if you violate the Terms by accessing the Services in an unauthorized manner, and you will be deemed to have received any and all notices that would have been delivered had you accessed the Services in an authorized manner.
Export Regulation and Geographic Restrictions
You shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services or your Applications available outside of the United States.
If you access the Content and Services from outside of the United States, you are responsible for compliance with local laws. You acknowledge that you may not be able to access all or some of the Services or content from outside of the United States and that access thereto may not be legal by certain persons or in certain countries.
No Obligation of Support or Updates
You agree that, unless specified within Your paid subscription plan, Company has no obligation to provide Services support or updates, upgrades, bug fixes, patches, enhancements and other error corrections, new features, or technical support for the Services (collectively, including related documentation, "Support/Updates"), or to continue to provide or enable any particular features or functionality. Company may from time to time, however, in its sole discretion develop and provide Support/Updates without any notice to You. Support/Updates may also modify or delete in their entirety certain features and functionality.
Third Party Materials
The Services may display, include or make available third-party content (including advertisements, signage, data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
Term and Termination
The term of Services commences when You access and/or use the Services and will continue in effect until the expiration of the term unless earlier terminated by You or Company as set forth in these terms. You may terminate this Agreement by ceasing to access and use the Services and Documentation. Company may terminate this Agreement at any time and for any reason in its sole discretion including without limitation for any violation of any of the terms of this Agreement. Upon termination: (i) all rights granted to You under this Agreement will also terminate; and (ii) You must cease all use of the Services and Documentation. Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties
THE SERVICES AND ACCESS TO YOUR APPLICATION(S) ARE PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES AND YOUR APPLICATION(S), INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES OR YOUR APPLICATION(S) WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE CORNELIUS DMS PLATFORM, YOUR APPLICATION(S) OR THE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO CORNELIUS FOR THE SERVICES IN THE PAST 12 MONTHS. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS IMPLIED WARRANTIES OR CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You agree to defend (at Company request), indemnify, and hold Company harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of Your direct activities or those conducted on Your behalf): (i) Your access to, or use of the Services; (ii) Your access to, or use of any third-party product or service through or in connection with your use of the Services; (iii) Your breach or alleged breach of this Agreement; (iv) Your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (v) Your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (vi) any misrepresentation made by You; or (vii) your creation, use, distribution, sale, offer for sale, of Your Application(s). You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You, and You will not in any event settle any claim without the prior written consent of Company. You agree that Company assumes no responsibility for the content You submit or make available through or per the use of the Services.
GOVERNING LAW AND DISPUTE RESOLUTION
Except as expressly referenced herein, this Agreement, along with the terms on any account or subscription page, constitute the entire agreement between the parties with respect to the Services. If any provision in this Agreement is found to be illegal, unenforceable or invalid, the remaining provisions shall survive in full effect. You may not assign this Agreement or any interest in this Agreement without the prior written approval of Company. This Agreement shall not be construed to create any employment, partnership, joint venture, and franchise or agency relationship between You and Company or to authorize either party to enter into any commitment or agreement binding on the other party. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
Company will not be responsible or liable to End User, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to circumstances or causes beyond Company’s reasonable control. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to Company at DMS@MarmonFoodService.com and will be sent to You at the email address provided at the time of registration to acquire access to and/or use of the Services (or to such other address as may be designated by a party from time to time in writing).
Last Updated on December 19, 2019