Restaurant Marketing Labs Terms Of Use

Terms Of Use Agreement 


This Terms of Use Agreement (“Agreement”) is entered into between You (referred to herein as “You” or “Subscriber”) and RestaurantMarketingLabs, a division of DZAP Design, Inc., a California corporation (“RestaurantMarketingLabs” or “We”) with respect to RestaurantMarketingLabs’ suite of products and services offered through the website (“Site”).
By using any of the RestaurantMarketingLabs products or services offered through this Agreement, You agree to be bound by the terms of this Agreement. If You are using the RestaurantMarketingLabs products or services on behalf of an organization, You agree to these terms for that organization and warrant that You have the authority to bind that organization and its affiliates to these terms. RestaurantMarketingLabs reserves the right to modify or replace the terms of this Agreement at any time in our sole discretion. We will notify You by email, using the address You provide, in the event that any modifications are made. Any modifications to this Agreement will be effective upon the date We provide You with such notice.

General Terms And Conditions.

  1. Grant of License.
    Subject to all terms and conditions of this Agreement, RestaurantMarketingLabs grants You a nonexclusive, nontransferable worldwide license to access and use the RestaurantMarketingLabs software and any related documentation. All rights not expressly granted to You are reserved by RestaurantMarketingLabs.
  2. Restrictions on Use.
    Your right to use the Site and products and services offered under this Agreement is all times conditioned on prompt and timely payment of Fees, where applicable, and on compliance with all other provisions of this Agreement. You may use the Site and the RestaurantMarketingLabs products and services on an unlimited number of computers and user sites, provided such use is only for Your internal business purposes. Your use of the Site and RestaurantMarketingLabs products and services may not be for any purpose that is illegal or promotes illegal activities, to send unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or pyramid schemes, or in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or is otherwise indecent. You agree not to

    1. license, sublicense, sell, lease, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the software, products or services provided hereunder;
    2. modify or make derivative works based upon RestaurantMarketingLabs software;
    3. attempt, or assist a third party, to decompile, disassemble or reverse engineer RestaurantMarketingLabs software, or otherwise attempt to determine the logic structure, architecture or other internal system design for RestaurantMarketingLabs software; or
    4. build a product using similar ideas, features, functions or graphics of RestaurantMarketingLabs software, or copy any ideas, features, functions or graphics of RestaurantMarketingLabs software.
  3. Fees and Payment Methods.
    1. Subscription Fees. You agree to pay the Subscription Fees as set forth on the RestaurantMarketingLabs Fee Schedule. Subscription Fees vary depending on the type and quantity of products and services that you purchase. All prices and amounts shown on this Site are in U.S. Dollars (USD), unless otherwise noted. If You submit a request on the Site to purchase printing products, mailing services, design services or other services, You agree that all charges, taxes and shipping/handling fees will be charged by purchase order with payment due upon receipt for setup charges and product purchases and within thirty days of receipt for recurring billing. If payment is not received when due, RestaurantMarketingLabs reserves the right to charge interest on amounts past due at the highest interest rate allowed by applicable law. RestaurantMarketingLabs reserves the right to switch the method of payment to automatic charges to the credit card or bank account that You authorize or to another approved payment method with thirty (30) days’ notice to You. RestaurantMarketingLabs also reserves the right to amend the Fee Schedule at any time, and such amendments will be effective thirty (30) days following notice to You, provided that changes to the Fee Schedule shall not apply during the current term of any Subscription Agreement but will apply to renewals, whether automatic or otherwise. No refunds shall be made unless expressly authorized by RestaurantMarketingLabs. All purchase requests must be submitted with an approved payment method unless otherwise expressly stated. Approved payment methods include either payment by credit card or, with RestaurantMarketingLabs’ prior approval, payment on account with purchase order (this method may be revoked at RestaurantMarketingLabs’ discretion in the event of any nonpayment or receipt of derogatory credit information). All fees are required to be paid in advance unless otherwise expressly agreed by RestaurantMarketingLabs. You authorize RestaurantMarketingLabs to make direct withdrawals from Your designated credit or bank account to pay Subscription Fees or any other costs or charges assessed or incurred by RestaurantMarketingLabs under this Agreement. You must keep all information in Your billing account current. In the event of a suspension of services, RestaurantMarketingLabs reserves the right to impose a reconnection fee.
    2. Sales Tax Policy. RestaurantMarketingLabs is required to collect sales tax on purchases shipped to California, where We currently have business operations, and any other states in which We may open business operations. For orders shipped to California or such other states, tax is calculated based on the printing and finishing product subtotal.
  4. Ownership of Site Content.
    1. RestaurantMarketingLabs Content. RestaurantMarketingLabs alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the RestaurantMarketingLabs software, all documentation, materials and information furnished by RestaurantMarketingLabs, and all graphical, printed or electronic content furnished or provided through the Site, including all subsequent modifications, changes, corrections or enhancements thereto, whether or not such modifications were made or authorized by RestaurantMarketingLabs. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the RestaurantMarketingLabs software, products or services except as specifically provided. “”, “Web2Print Social”, and any and all other marks appearing on this Site are trademarks of in the United States and other jurisdictions (“Trademarks”). You may not use, copy, reproduce, republish, upload, post, transmit, distribute or modify RestaurantMarketingLabs software, Site content or Trademarks in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without RestaurantMarketingLabs’ prior written consent. The use of Trademarks on any other Web site or network computer environment is prohibited. prohibits the use of Trademarks as a “hot” link on, or to, any other Web site unless establishment of such a link is pre-approved by in writing. If You are purchasing website development services from RestaurantMarketingLabs, additional provisions concerning ownership of content are set forth in Section 12.
    2. Subscriber Content. You shall remain the owner of all information, documents, data and materials that You either create, originate or legally furnish or use from a third party source (including, without limitation, social media) in connection with Your use of the Site (“Subscriber Content”). RestaurantMarketingLabs does not acquire ownership of such Subscriber Content, provided, however, that You authorize RestaurantMarketingLabs to host, copy, reproduce, transmit, display, modify and adapt Your Subscriber Content, solely as necessary for RestaurantMarketingLabs to:
      1. furnish the services set forth in this Agreement or as necessary in connection with RestaurantMarketingLabs’ monitoring of Your account for quality control, error correction and compliance with RestaurantMarketingLabs’ legal obligations; and
      2. investigate any existing or suspected breach of this Agreement, or if deemed necessary to protect RestaurantMarketingLabs’ obligations to other subscribers. RestaurantMarketingLabs will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Subscriber Content.
    3. Your Obligations Regarding Subscriber Content. You are solely responsible for the nature, quality and accuracy of Subscriber Content. RestaurantMarketingLabs will provide functions that allow You to control who may access Your Subscriber Content. You represent and warrant that You have all the rights in the Subscriber Content necessary for You to use Subscriber Content and to grant rights to the storage, transmission or use of the Software as contemplated in this Agreement. You agree to promptly handle and resolve any notices and claims relating to the Subscriber Content, including any notices sent to You by any person claiming that any Subscriber Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices, and to maintain appropriate security, protection and backup copies of the Subscriber Content, which may include Your use of additional encryption technology to protect the Subscriber Content from unauthorized access. You must immediately notify RestaurantMarketingLabs in writing of any existing or suspected unauthorized use of or access to Subscriber Content and take all steps necessary to terminate such unauthorized use.
    4. Acquisition of Rights of Ownership By You. Once a project has been delivered by RestaurantMarketingLabs and is fully paid for by You, RestaurantMarketingLabs will assign to You all of the rights it owns, including reproduction rights, in the design, the related branding, and Your website or websites (other than rights to underlying code), for the use or uses described in the proposal/estimate. RestaurantMarketingLabs’ work for You may utilize stock photography and/or illustrations. Because of Copyright law and RestaurantMarketingLabs’ contracts with its vendors, any stock photography and/or illustrations that are used in Your project may not be used by You for other purposes or in other applications unless RestaurantMarketingLabs provides a written statement to You that Your additional use complies with the law and its contracts. If You wish to use stock photography and/or illustrations for another purpose or in another application, You must obtain such a written statement and, in most cases, You must purchase rights for additional use from the vendor. RestaurantMarketingLabs will assist with this process upon request by You. Unless You obtain such a written statement and, if required, purchase rights, You may not claim ownership of such stock photography and/or illustrations in a specific or a general statement of ownership of content in Your terms of service or otherwise. All usage of stock photography and/or illustrations must comply with the intended resolution for such image on the device on which usage occurs.
      If printing or other implementation is done through Your vendors, You agree to provide RestaurantMarketingLabs with printed samples of each such project. RestaurantMarketingLabs reserves the right to photograph and/or distribute or publish for RestaurantMarketingLabs’ promotional and marketing needs any work RestaurantMarketingLabs creates for You, including but not limited to mockups and comprehensive presentations, as samples for RestaurantMarketingLabs’ portfolio, firm newsletter, brochures, and similar media. RestaurantMarketingLabs agrees to store electronic files for a period of six months beyond the delivery of a job. Thereupon, RestaurantMarketingLabs reserves the right to discard them.
  5. Confidential Information.
    1. Confidential Information Defined. As used herein, “Confidential Information” shall mean any technical or business information furnished, in whatever form or medium, disclosed or made accessible by one party to the other (including, but not limited to, product/service specifications, prototypes, computer programs, models, drawings, marketing plans, financial data, personnel statistics), which, if disclosed in writing or otherwise, is marked as confidential or proprietary, which, if disclosed in writing, orally, or otherwise, is information that the disclosing party clearly indicates to the receiving party at the time of disclosure is of a confidential or proprietary nature, or any other information which, if disclosed in writing, orally, or otherwise, is received or obtained under conditions such that the receiving party reasonably should understand that such information is considered confidential by the disclosing party.
    2. Restrictions on Use of Confidential Information. Each party agrees to hold Confidential Information of the other party in strictest confidence and shall use same solely for the purposes of this Agreement unless otherwise authorized in writing by the disclosing party. The receiving party shall not copy such Confidential Information without express written permission, or disclose such Confidential Information to anyone (including consultants and subcontractors) except employees of the receiving party to whom disclosure is necessary for the purposes set forth in this Agreement. The receiving party shall appropriately notify each such employee that the disclosure is made in confidence and must be kept in confidence in accordance with this Agreement. The obligations set forth herein shall be satisfied by each party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance.
    3. Return of Confidential Information. All copies of such Confidential Information fixed or stored in written, graphic, electronic, optical, magnetic or other tangible form shall be returned to the disclosing party upon expiration, termination or cancellation of this Agreement or upon the disclosing party’s request, unless otherwise agreed.
    4. Exceptions. The obligations imposed in this Section 5 shall not apply to any information that:
      1. is already in the possession of or is independently developed by the receiving party without violation of any obligation of nondisclosure;
      2. is or becomes publicly available without violation of any obligation of nondisclosure;
      3. is obtained by the receiving party from a third person without violation of any obligation of nondisclosure; or
      4. is clearly stated to be without restriction by the disclosing party.
  6. Your Privacy In order to operate and provide the software to You, We collect certain information about You. We also may automatically upload information about Your computer or device, Your use of the software, and software performance. We use and protect that information as described in the RestaurantMarketingLabs Privacy Policy. You further acknowledge and agree that:
    1. You have read, understood and agree to the RestaurantMarketingLabs Privacy Policy, the terms of which are incorporated herein, and agree that the terms of such policy are reasonable and satisfactory to you;
    2. We may access or disclose information about You, including the content of Your communications, in order to:
      1. comply with the law or respond to lawful requests or legal process;
      2. protect the rights or property of RestaurantMarketingLabs or Our customers, including the enforcement of Our agreements or policies governing Your use of the service; or
      3. act on a good faith belief that such access or disclosure is necessary to protect the personal safety of RestaurantMarketingLabs employees, customers, or the public; and
    3. You will maintain Your own Privacy Policy that is approved by RestaurantMarketingLabs and that such Privacy Policy will disclose the use of cookies, Google Analytics, and any other information gathering resource that either You use or RestaurantMarketingLabs uses.
  7. General Limitation of Liability.
  1. Warranty and Indemnification.
    1. RestaurantMarketingLabs Warranty. RestaurantMarketingLabs warrants and represents that it owns or has acquired the necessary rights to operate the Site, display the Site content and grant the licenses to Subscriber set forth herein. RestaurantMarketingLabs will at all times reasonably attempt to achieve the highest possible availability of the Site, but no warranty is made with regard to specific availability or time of access. RestaurantMarketingLabs makes no warranty with respect to recovering or restoring any lost Subscriber Content, and You acknowledge having been advised to secure separate backup services for all Subscriber Content. Your use of the Site and the RestaurantMarketingLabs software is at Your sole risk and You acknowledge that the Site and software and associated documentation may contain defects, fail to comply with applicable specifications, any may produce unintended or erroneous results either alone or when operated in combination with other products or programs. You accept the software and the Site, and all products and services of RestaurantMarketingLabs “as is” without any other warranty whatsoever. RestaurantMarketingLabs may at various times provide Subscribers with links to websites operated by third parties, and Subscriber acknowledges that RestaurantMarketingLabs makes no warranty or representation as to the content, goods or services, or their accuracy or effectiveness, provided on such third party websites.
    2. RestaurantMarketingLabs Indemnification of Subscriber. RestaurantMarketingLabs shall indemnify and defend Subscriber, its officers, directors, affiliates, agents and employees from any and all third party claims, demands, litigation, expenses and liabilities (including costs and reasonable attorneys’ fees) arising from or incident to any claims that the RestaurantMarketingLabs software or Site content, or any content specifically developed for use on Your website, infringes any trade secrets, trademark, copyright or patent rights of any third party. This shall not apply to the extent that any such claim is the result of Subscriber’s misuse of the RestaurantMarketingLabs software or Site content or relates to any content specifically designed for You according to Your specifications, or to a combination of such elements with components, content or software not furnished by RestaurantMarketingLabs, use of a superseded version of the RestaurantMarketingLabs software or Site content or unauthorized modification of such elements. You agree to cooperate with the defense of any such claims, at RestaurantMarketingLabs’ expense. RestaurantMarketingLabs may, at its sole option, and in addition to any other rights, respond to such claims by modifying the RestaurantMarketingLabs software or Site content or Your website content so as to remove the infringing component, procuring from the claimant the right to continue to use the RestaurantMarketingLabs software or Site content under this Agreement, or terminating this Agreement.
    3. Subscriber’s Indemnification of RestaurantMarketingLabs. You shall indemnify and defend RestaurantMarketingLabs and its officers, directors, affiliates, agents and employees from any and all claims, demands, litigation, expenses and liabilities (including costs and reasonable attorney’s fees) arising from any claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) asserted by a third party regarding Your use of the RestaurantMarketingLabs software or Site content, Your use or disclosure of Your password, Your use, transmission, storage, access to or modification of Subscriber Content, the design of Your website content in accordance with specifications You provided, or any other act or omission in violation of the law or of the terms of this Agreement or related contract.
  2. Term; Termination.
    1. Term. The license granted under this Agreement shall commence on the Effective Date and will continue indefinitely until Your Subscription has expired or been terminated.
    2. Termination. Your rights to terminate this Agreement are set forth in Your Subscription Agreement. RestaurantMarketingLabs may terminate this Agreement at any time if You commit a material breach of this Agreement and fail to cure such breach within thirty (30) days following Your receipt of notice of breach, provided that RestaurantMarketingLabs may terminate the Agreement immediately in the event of a breach of Sections 2, 3, 4, 5 or 8(c). In addition, RestaurantMarketingLabs may, at its discretion, temporarily suspend services if deemed to be necessary in connection with
      1. the actual or suspected violation of this Agreement;
      2. the use of the RestaurantMarketingLabs software or Site content in a manner that may cause RestaurantMarketingLabs to have legal liability or disrupt others’ use of the Site;
      3. the suspicion or detection of any malicious code, virus or other harmful code by You or in Your account;
      4. scheduled downtime and recurring downtime;
      5. use of excessive storage capacity or bandwidth; or
      6. unplanned technical problems and outages.
    3. Termination Fee. Under Your contract with RestaurantMarketingLabs, RestaurantMarketingLabs may elect to charge a termination fee if You terminate the contract early. Because of the nature of the product/services performed, it is difficult for RestaurantMarketingLabs to estimate precisely the amount of damages that would be sustained in the event of a default or termination by You. Therefore, You agree that, if RestaurantMarketingLabs elects to charge You a termination fee in lieu of remaining subscription fees, Your liability will be calculated as four times the setup fees (prior to any discounts/reductions applied to setup fees) less all setup and subscription fees paid to date. You expressly agree that this is not a penalty, but rather a valid liquidated damages provision and bears a reasonable proportion to the probable loss RestaurantMarketingLabs would suffer in the event of a breach or termination of the contract. You expressly agree that this termination fee shall not be construed as being plainly or grossly disproportionate to the probable loss RestaurantMarketingLabs would suffer in the event of a breach or termination of the contract.
    4. Obligations Upon Termination. Upon termination, all of Your rights to access and use the RestaurantMarketingLabs software or Site content, or to display any RestaurantMarketingLabs trademarks, and any similar rights that You have granted to any employees, affiliates, customers, agents or representatives, will immediately cease.
  3. General Provisions.
    1. Independent Contractor. Each party hereunder is acting as an independent contractor and not as an agent, employee, representative or affiliate of the other. Neither party shall have authority to act for the other’s behalf, to bind or incur any debts or liabilities in the name of or on behalf of other, or to control or answer for the acts of the employees of the other.
    2. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein and supersedes all prior or contemporaneous agreements, understandings and representations, both oral and written.
    3. Severability. If any provision of this Agreement is held invalid or unenforceable, such determination will not affect the remaining portions of this Agreement, and the parties agree that the affected provisions shall be amended to the extent necessary to render it enforceable so as to carry out the intent of this Agreement.
    4. Force Majeure. Neither party shall be liable for failure to perform solely caused by unforeseeable circumstances beyond their control.
    5. Assignment and Delegation. No rights or interests in this Agreement shall be assigned by Subscriber without written permission of RestaurantMarketingLabs, and any attempted assignment in violation of this Section shall be void.
    6. Notices. All notices permitted or required under this Agreement shall be in writing and shall be directed to the email addresses furnished by the parties at the time Subscriber is registered.
    7. Waivers. The failure of either party to exercise any right shall not be construed to be a waiver unless agreed upon in writing.
    8. Modifications or Amendments. No modifications or amendments shall be made to this Agreement unless in writing and signed by the parties.
    9. Arbitration. You hereby agree that RestaurantMarketingLabs may elect at any time and at its sole discretion to arbitrate or to litigate all claims and disputes of every type and manner which may arise or are in any way related to this Agreement or related contract, including but not limited to claims in contract, tort, common law claims or alleged statutory violations. You hereby agree to submit any such dispute or claim to binding arbitration pursuant to the rules of the American Arbitration Association if so elected by RestaurantMarketingLabs. You agree to dismiss or abate any proceeding pending in a forum other than that selected by RestaurantMarketingLabs.
    10. Governing Law; Venue; Attorney’s Fees. This Agreement and related contract shall be governed by, construed in, and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws rules. Venue for any legal action (including arbitration action) commenced to enforce or interpret this Agreement shall be in San Diego County, California, and the parties submit to the exercise of jurisdiction over them for such actions. If any legal action (including any arbitration proceeding) is required to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to recover, in addition to any other remedies, all attorney’s fees and costs incurred in connection with such action.
    11. Authority. You warrant that, by signing this Agreement, You have the full and necessary authority and capacity to bind the party represented by Your signature to each and every obligation set forth in this Agreement.
    12. Injunctive Relief. You agree that any breach of this Agreement by You would cause RestaurantMarketingLabs to suffer severe, irreparable and incalculable injury, not compensable through monetary damages, and that in the event of any such existing or threatened breach, RestaurantMarketingLabs shall be entitled, in addition to any other remedies, to injunctive or other equitable relief without the necessity of posting an undertaking, which requirement is hereby expressly waived.
    13. Consent to Electronic Communications. By registering as a RestaurantMarketingLabs Subscriber, You understand and acknowledge that We may send You communications or data regarding the RestaurantMarketingLabs software or services or this Agreement via email using the address information that You provide. You consent to this and to receiving billings and other notices from RestaurantMarketingLabs via email. You acknowledge that failure to maintain current contact information with RestaurantMarketingLabs means that You may not receive proper, current or accurate notices and that You are solely responsible for such occurrences.
    14. Use of Third Parties and Cloud Services. RestaurantMarketingLabs may employ or subcontract with any third party in connection with the performance of the services under this Agreement, including the use of Cloud-based data storage services.
    15. Invalidity of Provisions. If any clause or provision of Your contracts with RestaurantMarketingLabs, this Agreement, or any related document and agreement is held to be illegal, invalid, or unenforceable under present or future laws, the remainder of these documents and agreements shall not be affected thereby and shall remain in full force and effect.
    16. Review by Attorneys. You agree that You have had an opportunity to consult with Your own legal counsel regarding Your contracts with RestaurantMarketingLabs, this Agreement, and all related documents and agreements, and You represent that You fully and completely understand and accept all terms and conditions set forth these documents and agreements and intend to be fully bound by the same.
  4. Additional Terms and Conditions for Web2Print Social. If you elect to use RestaurantMarketingLabs’ Web2Print Social services, the following additional provisions will apply:
    1. Color Accuracy. RestaurantMarketingLabs will reproduce color as accurately as possible, and we use top-quality print vendors. However, please note that we accept no responsibility for color variations between on-screen color and final printed product.
    2. Printing Turnaround Time. Printing turnaround time begins once Your order has been placed and Your print-ready files have been approved via Your account, and approved for printing. For printing jobs that do not have complete digital source files provided, printing turnaround begins when we have Your print-ready file(s) for Your print job, not from when the order is first submitted. If Your job or proof is approved by 6:00 P.M. PT (9:00 P.M. ET), printing turnaround time begins that business day. Please note that offices are closed Saturdays, Sundays and Holidays. As a result, these days are not considered when calculating printing turnaround time. In addition, printing turnaround time does not include shipping transit time, and You should allow additional business days for delivery based on the shipping method You selected. The remedy for failing to meet a deadline is limited to a refund of any rush charges or a courtesy rush on Your next order, at RestaurantMarketingLabs’ discretion.
    3. Shipping. All shipping is currently done via FedEx or UPS. Shipping transit times vary, and RestaurantMarketingLabs assumes no responsibility for delays caused by shipping carriers, weather or any damages resulting from the failure to receive a job on time. Your order may arrive late due to unforeseen delays in delivery service, the breakdown of equipment, illness, etc. All shipments are f.o.b. RestaurantMarketingLabs’ place of shipment.
    4. Complaints and Errors. All complaints regarding final Web2Print Social content must be registered within 24 hours of receipt of your final printing job. Should your job contain manufacturing errors and/or defects (as determined by, will rerun your job at no charge. All materials We create in producing Your printed product are the property of We reserve the right to distribute free samples of Your printed product. Please note that Your printed product or images used for Your printed product will not be used in any national advertising without Your prior written consent. Once a print job has been approved by You and “sent to press” on the Site, no changes are allowed to the artwork files, job characteristics, or printing turnaround time.
    5. Payments. After a print job has been sent to press vendor(s), You are responsible for paying the entire amount of that print job along with applicable taxes and shipping/handling fees, unless otherwise noted. Please note that no work will proceed on any print job in your order until full payment is received by RestaurantMarketingLabs. All sales are final, unless otherwise noted. No refunds are given once begins working on your order, which means has received your necessary materials (i.e., digital files and payment authorization) and started work on your job (i.e., your job is in production).
  1. Additional Terms for Website Content Development. If you elect to use RestaurantMarketingLabs’ website content development services, the following additional provisions will apply:
    1. Website Coding. The Web Pages shall be coded:
      • in HTML or in any other language generally accepted by the industry;
      •  in such a way that they may be accessed on the Internet;
      • using modems of 56,600 band or faster;
      • using the following Web browsers: Microsoft Internet Explorer 9, Mozilla Firefox 17, Google Chrome and their successive versions (hereinafter collectively referred to as the “Web Browsers”) at 1024×768 pixels;
      • there may be slight variations of the design depending on the web browser the website is viewed in.
    2. Graphic Elements. Any graphic element:
      • shall be designed or converted, as the case may be, in JPG, GIF or in any other format generally accepted by the industry;
      • shall have a constant appearance (size and color) independently from the hardware and software platforms, operating systems and Web Browsers as stated in the specifications.
    3. Software Components. Software components:
      • shall be programmed according to the rules generally accepted by the industry;
      • shall run as efficiently as possible, subject to the software and hardware limitations.
    4. Additional Services. If, during the performance of this Agreement and before final approval of the services performed by RestaurantMarketingLabs, You request any revisions, corrections, additions, substitutions or other modifications to the website content, this request shall be considered to be a request for additional services, and RestaurantMarketingLabs shall not be required to perform such work unless the parties agree on additional fees and amendments to the specifications as shall be required, provided that the foregoing shall not apply if the request pertains to changes necessary to conform with the information elements originally provided by You, or is the result of an error or omission on the part of RestaurantMarketingLabs.
    5. Ownership of Graphic Elements. Except as otherwise provided below in Section 12.f, You shall own intellectual property rights in and to the graphic elements and other functionality designed by RestaurantMarketingLabs to Your specifications.
    6. Ownership of Background Technology. RestaurantMarketingLabs shall own and retain all intellectual property rights in and to all software developed for operation of the website, including the right to keep, use and reuse modules or portions of the software for other clients, and the right to keep, use and reuse the knowledge, techniques, processes, know-how, expertise, skills, ideas, talents and other elements acquired before or during the performance of this Agreement.
  1. Additional Terms for RestaurantMarketingLabs Hosting Services. If you elect to use RestaurantMarketingLabs’ website hosting services, the following additional provisions will apply:
    1. Registration, Installation and Hosting of Your Website. As part of RestaurantMarketingLabs’ hosting Services, and subject to Your performance of all terms and conditions of this Agreement, RestaurantMarketingLabs will:
      1. register with the appropriate organization, on behalf of the Licensee, the domain name indicated in your specifications, or if unavailable such other alternative and available domain name that is proposed by You and provide You with the e-mail address stated in the specifications;
      2. install, operate and host your website on the RestaurantMarketingLabs’ web server in accordance with generally accepted industry practices;
      3. maintain the accessibility of Your website on a continuous basis to the level of volume and capacity as detailed in the specifications, excepting such time periods as are needed for planned server maintenance, for network downtime not attributable to or under the control of RestaurantMarketingLabs or due to RestaurantMarketingLabs’ exercise of its rights under this Agreement;
      4. load, install, configure and implement Your website according to the specifications;
      5. provide You with all necessary information and documentation respecting the access and operation of Your website and with ongoing technical support as set forth in the specifications;
      6. address and attempt to resolve problems with Your website provided that You report such problems with sufficient detail as to allow the problem to be examined; and
      7. maintain, in a manner equal to industry standards and to RestaurantMarketingLabs’ own internal procedures, a security firewall to protect against hacking, viruses, identity theft and other security breaches.
    2. Your Obligations Regarding Registration, Installation and Hosting of Your Website. In addition to all other obligations set forth in this Agreement, You shall be solely responsible for each of the following requirements and agree that failure to adhere to these requirements shall constitute a material breach of this Agreement:
      1. You shall furnish all information and specifications required or requested by RestaurantMarketingLabs with respect to the implementation and operation of the Your Website;
      2. You shall take all appropriate measures to prevent the unauthorized disclosure or use of any usernames, passwords or other authorizations associated with the operation or use of the Your website;
      3. You shall promptly report to RestaurantMarketingLabs any problem concerning the operation or content of the Your website with sufficient detail as to enable RestaurantMarketingLabs to examine the problem;
      4. You shall procure and maintain, at Your expense, all necessary equipment, cabling and other computer or telecommunications capabilities as required by RestaurantMarketingLabs in order to deliver the hosting services;
      5. You shall provide, at RestaurantMarketingLabs’ request, proof of title or interest in any copyright, trademark or in any other intellectual property right respecting Subscriber Content;
      6. None of the Subscriber Content shall be so created as to allow the display, within a frame, of the content, in whole or in part, of one or several pages from another website without the owner’s consent;
      7. You shall appropriately display all notices and symbols signifying ownership of a copyright, trademark, patent or other intellectual property right where required; and
      8. You shall not, for any reason whatsoever, directly or indirectly, use Your website to cause damage to a third party; gain unauthorized access to information, computer systems or websites; damage the content of another party’s website or commit an illegal offense.