Terms and Conditions

Please read the Terms and Conditions carefully before using Services. By accessing, using or continuing to use Services, Customer agrees to be legally bound by the Terms and Conditions and all terms, policies and guidelines incorporated by reference into the Terms and Conditions. If Customer does not agree with the Terms and Conditions in their entirety, Customer may not use Services. TB reserves the right to change or modify any of the terms and conditions contained in the Terms and Conditions, or any policy or guideline applicable to Services, at any time and in its sole discretion. If Customer does not agree with the changes, Customer can cancel the Contract effective upon the expiry of the then current Term (as defined below) by contacting support@touchbistro.com, and until such expiry, the prior Terms and Conditions will remain in force.  If Customer renews the Services past the current Term, then the most current version of the Terms and Conditions will apply to the Customer’s continued use of the Services from and after the renewal date. Subject to the foregoing, any changes or modifications will be effective immediately upon the posting of same on the Terms Webpage, and Customer’s continued use of the Services after such time will constitute Customer’s acceptance of such changes or modifications.

  1. PURCHASE OF DIGITAL SERVICES. TouchBistro Inc. or one of its affiliates (“TB”) sells to the Customer, who purchases same, the services described in the Sales Quote entered into by the Customer (the “Services”) for the monthly or lump sum fees set forth in the Sales Quote (the “Fees”) and otherwise pursuant to the herein Terms and Conditions (together with the Sales Quote, the “Contract”). TB will, beginning on or about the date indicated in the Contract and throughout the Term, provide the Services. Services are for Customer’s own use only. Customer may not resell, host, publish, lease or provide Services in any other way to anyone else, except as expressly permitted by TB.
  2. COLLABORATION. The Customer shall respect stipulated product fulfillment timelines and provide TB all information as may be reasonably required to fulfill its obligations under this Contract. Should the Customer not provide all information required or fail to respect stipulated product fulfillment timelines, TB may continue billing Customer the Fees, even in the event that some or all of the Services cannot be provided due to the said failures by the Customer. Customer agrees to honor reservations booked through the Services.
  3. APPROVAL OF THE CUSTOMER’S CREDIT. The Customer acknowledges that this Contract is strictly conditional upon TB’s approval of the Customer’s credit. TB may cancel this Contract if it deems, in its sole discretion, that the Customer’s credit is not satisfactory. The Customer therefore authorizes TB to conduct all usual enquiries with third parties regarding the Customer’s solvency and credit and to record in the Customer’s file and disclose to third parties information regarding the Customer’s credit.
  4. VARIABLE TERM AND AUTOMATIC RENEWAL This Contract and the Services are automatically renewed for consecutive subsequent periods (each a “Renewal Period”) equal in length to the initial term (the “Initial Term”) (Renewal Period and Initial Term collectively referred to as the “Term”), unless the Customer gives TB a written notice of non-renewal at least two (2) months prior to the end of the Initial Term or any Renewal Period.
  5. INCREASE OF FEE. The Fees due pursuant to this Contract may be increased annually by TB, in accordance with its standard practices. The Customer shall pay TB the increased Fees upon receipt of a notice of increase from TB; provided that, TB shall provide the Customer a minimum of thirty (30) days notice of any Fee increase, and should the Customer not agree to the Fee increase, it may terminate this Contract at any time prior to the expiry of the notice period.
  6. INVOICES. Fees will be invoiced to the Customer on the first day of each and every calendar month during the Term, in accordance with the billing cycle set forth in the Sales Quote. The Customer undertakes to pay the Fees due pursuant to this Contract upon receipt of TB’s invoice.  An interest rate of 1.25% per month compounded monthly (16.07% per year) applies to any Fees not paid as and when due.
  7. EARLY TERMINATION. TB may terminate this Contract or any portion of the Services provided hereunder at any time for any reason by providing the Customer with thirty (30) days written notice of termination. TB shall reimburse all Fees and other charges for unrendered Services paid for by the Customer. That sum is paid as liquidated and ascertained damages by TB to the Customer as full and final settlement and satisfaction of TB’s entire liability for any loss, damages, costs and/or expenses suffered or incurred by the Customer arising from an early termination. Unless terminated in accordance with section 4, the Customer may not unilaterally terminate this Contract.
  8. DEFAULT.
  • 8.1. The Customer shall be in default of this Contract should any one of the following occur (a) the Customer does not pay the Fees as and when due pursuant to this Contract; (b) the Customer breaches any other of its obligations as set forth in the Contract; (c) the Customer ceases doing business; or (d) the Customer reproduces either a portion of or in its entirety the Services created by TB in any other media without TB’s consent (hereinafter collectively referred to as a “Default”).
  • 8.2. On the occurrence of any Default, TB may terminate this Contract immediately. Furthermore, all Fees for the remaining Term under this Contract shall become immediately due and payable to TB as liquidated damages.
  1. TRAINING SERVICES. Following the date of the execution of this Contract, TB will provide the selected set-up and training services (the “Training Services”) set forth in the Sales Quote (if any). The Training Services will be provided to the Customer’s manager(s) in one (1) interactive online session of a duration that varies between one and two hours, or as TB may determine necessary. In order to receive the Training Services, the Customer shall be responsible to: (i) have access to a computer; (ii) have an Internet access: and (iii) install all the programs as may be required by TB to provide the Services. TB shall provide the Training Services only to the manager(s) selected by the Customer and shall not be responsible to provide the Training Services or any other similar services to other employees of the Customer.
  2. NO REPRESENTATIONS BY TB; NO WARRANTY OF SUCCESS FOR THE CUSTOMER. The Customer acknowledges that, in order to promote the Services, TB may convey data, including statistics, estimates of performance or other types of information, which illustrate the results obtained by certain TB Customers, or average results obtained by certain groups of TB Customers. TB declares that such data is, to the best of its knowledge, accurate and that said data has been obtained from credible and independent sources. The Customer also acknowledges that such data is conveyed solely for informational purposes, that TB does not conduct any analysis regarding the Customer’s business and that consequently, the results obtained by the Customer may vary considerably from Customer to Customer.
  3. THIRD PARTY CONTENT. The Customer acknowledges and agrees that TB may aggregate, display and publish third party content related to the Customer, as well as provide the Customer’s Content to third party partners of TB. Further, the Customer acknowledges and agrees that TB shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with third party content or the provision of Customer’s Content to third party partners. The Customer releases TB from all liability with respect to third party content or the providing of Customer’s Content to third party partners.
  4. OWNERSHIP, COPYRIGHT AND TRADEMARKS. The Customer warrants that it holds all the rights to use any of Customer trademarks or trade names included in the Services and that such use does not violate any provision of any law or statute, including the Trade-marks Act (Canada), the Copyright Act (Canada) and any other law or statute relating to intellectual property. The content made available by TB through the Services, including all information, content, data, logos, marks, interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is herein called “TouchBistro Content”. Content provided by Customer is herein called “Customer Content”. For example, data about its customers that the Customer provides to TB is Customer Content, data about its payments, menu, or operations that a Customer provides to TB is Customer Content , and Content that a Customer enters into any TB database is Customer Content. Customer Content is the Customer’s property and may only be utilized by TB as expressly authorized herein. TB’s only right to Customer Content as necessary to provide the Services, and as otherwise provided herein. Other than the Customer Content, all content and all software available through the Services or used to create and operate the Services (collectively “Content”) is the property of TB or its licensors, and is protected by Canadian and international patent, trademark, and copyright laws, and all rights to the Services, the Content and the TB software associated therewith are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by TB. Throughout the term of the Contract, TB shall enjoy a non-exclusive right and license to utilize and display Customer’s business name, logo and other registered or unregistered trademarks, trade names, brands and/or service marks, on the TB’s websites and in other TB marketing and promotional material, to promote the business of TB and to identify Customer as a customer of TB. TB may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) Customer provides or has provided to TB regarding the Services. This applies to Feedback provided to TB at any time in any format. Customer assigns all intellectual property rights in Feedback to TB immediately upon communication of such Feedback to TB or its representatives. TB may use Feedback for any purpose without compensation or attribution to Customer and Customer forever waives and surrenders any and all rights in Feedback. If Customer authorizes third parties to access Customer Content through the Services, Customer agrees that TB is permitted to provide to them the Customer Content, and also agrees that TB has no responsibility or liability for their use of such Customer Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party. Without limiting the generality of the foregoing, Customer is responsible for all business continuity, data loss, business interruption, or other risks that may arise out of its use of the Services. Customer Content is Customer’s responsibility. TB has no responsibility or liability for it, or for any loss or damage Customer Content may cause to Customer or other people.
  5. CUSTOMER LICENSE TO TOUCHBISTRO TO USE CUSTOMER CONTENT. TB does not claim any ownership interest or rights in Customer Content except as provided for hereunder, but TB does need the right to use Customer Content to the extent necessary to provide the Services, now and in the future. Therefore, with respect to any Customer Content posted to, distributed or otherwise accessible through the Services, Customer (a) grant TB and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such Customer Content, i) in any manner as may be necessary to provide the Services; ii) for any purposes for which the Services from time to time use such Customer Content; and iii) to ensure the security of the Services, systems and technology; (b) represent and warrant that (i) Customer owns and controls all of the rights to the Customer Content, or Customer otherwise has the lawful right to post and distribute that Customer Content, to or through the  Services; and (ii) the use and posting or other transmission of such Customer Content does not violate the Terms and Conditions and will not violate any rights of or cause injury to any person or entity. If Customer Content is intended for the use of others, Customer also grants TB and its affiliates and subsidiaries and partners a non-exclusive, royalty-free, transferable right to sublicense such Customer Content to such users for their use in connection with their use of Services in accordance with all applicable privacy laws and regulations. These licenses from Customer are non-exclusive because Customer have the right to use Customer Content elsewhere. They are royalty-free because we are not required to pay Customer for the use of Customer Content on the Services. They are transferable because we need the right to transfer these licenses to any successor operator of the Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Services does this to Customer Content when it processes it for use in the Services. In addition to the foregoing, Customer agree that TB may compile, collect, copy, modify, publish and otherwise use Customer Content in an aggregated fashion (excluding any parts of the Customer Content that represents personally identifiable information of an individual) (“Aggregated Anonymous Data”) for any lawful purpose. TB shall be the owner of the Aggregated Anonymous Data, and may, without limitation, use the Aggregated Anonymous Data to analyze, improve, support and operate the Services, combine it with data from other sources, share it with third parties and otherwise use it for any lawful business purpose, both during the currency, and after the termination, of the Contract, including without limitation in order to  generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by TB customers and other third parties.
  1. LIABILITY. TB makes no representations or warranties of any kind, whether expressed or implied, including any implied warranties of merchantability, fitness, condition, design or operation, including for a particular use, of any software products or related services, or any purchased equipment (including, but not limited to, touch screen computers). Without limiting the generality of the foregoing, TB makes no endorsements, representations, conditions, warranties or guarantees about the accuracy, completeness, timeliness, functionality, security, access or compatibility of any third party accounts and applications. Customer waives and shall not assert any claims or allegations of any nature whatsoever against TB, its affiliates or subsidiaries, their sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to Customer’s use of the Services or any third party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless Customer or any third party from any claim or allegation arising from Customer’s use or other exploitation of any third party services or the Services. Customer uses the Services completely at Customer’s own risk.  Customer agrees that this is fair and reasonable. Without limiting the foregoing, neither TB nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of access to or use of data or loss of goodwill, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of or inability to use any or all of the Services or any third party services, including without limitation any damages caused by or resulting from Customer’s reliance on the Services or any third party services or other information obtained from TB or any other Released Party or accessible via the Services or any third party service, or that result from mistakes, errors, omissions, interruptions, deletion of files or data or email, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to TB or any other Released Party’s records, programs or services. In no event shall the aggregate liability of TB, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Services or any third party services exceed any compensation paid by Customer for access to or use of the  Services for the three months immediately prior to the date of any claim. Customer shall defend, indemnify and hold harmless TB and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of Customer’s or Customer’s customers use of the Services, or any third party services and from the use the Services or any third party services by any person to whom Customer give access to Customer’s account (including as staff), including any claims made by any person that any of the Customer Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event TB claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.
  2. MODIFICATION TO SERVICES BY TB. TB may modify the Services if said modification is to the advantage of the Customer or such modification does not substantially affect the rights and obligations of the Customer or diminish the overall quality and functionality of the Services. The Customer is bound by any such modifications from the moment the Customer receives a notice to that effect.
  3. PRIVACY NOTICE. Please refer to TB’s Privacy Notice, available at www.touchbistro.com/privacy for information on how TB collects, uses and discloses personally identifiable information from Customers. By using the Services, Customer agrees to TB’s use, collection and disclosure of personally identifiable information in accordance with the Privacy Notice. Furthermore, Customer agrees to establish and maintain a privacy policy that complies with local laws in its jurisdiction and that is consistent with the TB Privacy Notice. Customer agrees that TB may collect, maintain and use non-personally identifiable data in aggregated form for its business purposes, including the improvement and enhancement of its services and Customer grant TB an irrevocable, perpetual, non-exclusive right to use such data for such purposes.
  4. REGISTRATION DATA, ACCOUNT SECURITY. Customer agrees to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms related to Services (“Registration Data”); (b) maintain the security of Customer’s password/s; (c) maintain and promptly update the Registration Data, and any other information Customer provides to TB, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data Customer provides to TB or through the Services. Customer is responsible for all activity on its Services account, and for charges incurred by and through its Services account.
  5. RESTRICTION ON USE OF THE SERVICES. Customer’s use of the Services is subject to the following restrictions. Customer (alone or by assisting or enabling any other party) may not:
    • Interfere or attempt to interfere in any manner with the proper workings of the Services, or adversely impacts the behavior of other applications using the Services;

 

    • Misrepresent its identity or intentions when communicating with TB in relation to the Services, allow Customer’s login credentials to be used by others, or mask Customer’s usage of the Services;

 

    • Use the Services in association with, or as a component of, any website that in the sole discretion of TB is determined to be obscene or otherwise commercially inappropriate;

 

    • Use the Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code;

 

    • Use the Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations;

 

    • Replicate, in whole or in part, the “look and feel” of Services or portion of them;

 

    • Disparage or otherwise negatively represent the Services or do anything that could result in damage or dilution to the goodwill of TB and its brand;

 

    • Use the Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all Services;

 

    • Reverse engineer, decompile or otherwise attempt to extract the source code of Services or any part thereof;

 

    • Circumvent or render ineffective any IP address-based functionality or restriction imposed by Services;

 

    • Circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect;

 

    • Build conversion functionality that converts Content from the Services to a competing or alternative product or service; or

 

  • Solicit, interfere with or endeavour to entice away from TB any of its customers.

TB may monitor Customer’s use of the Services for any reason, including but not limited to: quality assurance, the improvement of TB products and services, and for verification of Customer’s compliance with the Terms and Conditions. Customer shall not interfere with such monitoring or otherwise obscure from TB any aspect of its use of the Services.

  1. APPLICABLE LAW AND VENUE Customer and TB both benefit from establishing a predictable legal environment in regard to Services. Therefore, Customer and TB explicitly agree that all disputes, claims or other matters arising from or relating to Customer’s use of the Services or any third party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario.  The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to this agreement. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving TB and arising out of or relating to (a) the Terms and Conditions; (b) the Services or any associated third party services; (c) oral or written statements, advertisements or promotions relating to the Services or any associated third party services; or (d) the relationships that result from the Services or any associated third party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written Notice of Arbitration invoking this provision. The arbitrator’s authority is limited to claims between Customer and TB alone. Claims may not be joined or consolidated unless Customer and TB consent in writing.  An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority. Except where prohibited by applicable law, Customer waives any right Customer may have to commence or participate in any class action against TB related to any Claim and, where applicable, Customer also agrees to opt out of any class proceedings against TB. Without limiting the foregoing, Customer and TB will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim or other matter related to the Contract. If Customer has a Claim, Customer should give written notice to arbitrate at the e-mail address specified below or by registered mail to TB’s head office. If TB has a Claim, it will give Customer notice to arbitrate at Customer’s address provided in Customer’s Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario. To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, Customer agree that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. Customer consents to the personal jurisdiction of such courts over Customer, stipulates to the fairness and convenience of proceeding in such courts and submits to their exclusive jurisdiction, and covenants not to assert any objection to proceeding in such courts. Notwithstanding the foregoing, TB shall be entitled, at its election, to apply to a court of competent jurisdiction for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of the Contract and TB’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trade-marks, and other proprietary material of TB or its suppliers or licensors. With respect to Customer’s use of the Services, Customer is responsible for compliance with all local laws applicable to Customer and Customer’s use of the Services and Customer agrees to indemnify TB and the other Released Parties for Customer’s failure to comply with any such laws.
  1. MISCELLANEOUS. If any provision of the Contract shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the contract and shall not affect the validity and enforceability of any remaining provisions. TB may assign any or all of its rights hereunder to any party without Customer’s consent. Customer are not permitted to assign any of Customer’s rights or obligations hereunder without the prior written consent of TB, and any such attempted assignment will be void and unenforceable. The Contract constitutes the entire agreement between Customer and TB regarding Customer’s use of the Services or any associated third party services, and supersede all prior or contemporaneous communications whether electronic, oral or written between Customer and TB regarding Customer’s use of them. The parties confirm that it is their wish that the Contract, as well as any other documents relating to this Contract, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
  2. QUESTIONS AND COMMENTS. If you have any questions regarding the Contract or your use of the Services, please contact TB at: support@touchbistro.com