PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE AND TO THE PRODUCTS. BY USING THIS WEB SITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEB SITE OR THE PRODUCTS.
LunchBuzz Inc. ("LunchBuzz") provides restaurants, caterers and eating establishments with (i) a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns (the "Email Marketing Product"), The Email Marketing Product, and any related offerings are referred to in these Terms and Conditions of Use as the "Products"). LunchBuzz’s Products may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy, which is incorporated into these Terms and Conditions of Use by reference.
The following are the terms and conditions of Use for access to this web site and use of the Products. By clicking the ‘Submit’ button on the sign-up page, or by logging in to your LunchBuzz account or by accessing the LunchBuzz services via any API interface, you accept these terms and conditions of Use.
1. Copyright and Trademark Information
Copyright © 2007-2009 LunchBuzz, Inc. All Rights Reserved.
This web site, and the information which it contains, is the property of LunchBuzz and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "LunchBuzz" and the LunchBuzz logo are registered trademarks of Lunchbuzz, Inc. under the applicable laws of the United States and/or other countries. Other LunchBuzz product or service names or logos appearing in this Site are either trademarks or registered trademarks of LunchBuzz, Inc. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of LunchBuzz’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:
– The Products may not be used for the sending of unsolicited email (sometimes called "spam").
– The Products may only be used for lawful purposes.
– The Email Marketing Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit. For more information on fees, see Section 4 below and the Fee Schedule.
– You agree you will not access or otherwise provide third party mailing lists to LunchBuzz as an email database.
– You agree to provide LunchBuzz use of email lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of LunchBuzz. You hereby covenant that you shall not use any other lists in connection with your use of the Products.
– You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.
– Every email message sent by Lunchbuzz in connection with the Products must contain the LunchBuzz "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
– You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.
– You acknowledge and agree that LunchBuzz is the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Products.
– You agree that in any email message sent by The LunchBuzz using the Products you use may include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
– You will adopt and maintain the Privacy Policy, when providing email lists to the LunchBuzz which may be modified by LunchBuzz from time to time.
3. Products and Support
The Product is provided subject to these Terms and Conditions of Use, as they may be amended by LunchBuzz, and any guidelines, rules or operating policies that LunchBuzz may establish and post from time to time (collectively, the "Agreement"), including without limitation LunchBuzz's customer Privacy Policy, as linked from all email generated from LunchBuzz or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on TheLunchBuzz.com website, or otherwise providing notice to you, LunchBuzz may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at LunchBuzz ‘s website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete and sign a LunchBuzz Usage Contract in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the Usage Contract. You may from time to time provide LunchBuzz's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by LunchBuzz or its personnel.
4. Free Trial; Fees and Payment
4.1 Fees for LunchBuzz Product. For the Email Marketing Product, once you have completed your free trial period or you have exceeded the free subscriber limit, you will be subject to monthly subscription fees in accordance with the Usage Agreement and related information. The Fees are based an agreed monthly rate in your area. You will be required to submit payment monthly in advance for the LunchBuzz Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the LunchBuzz Marketing Product. Access to the LunchBuzz Marketing Product will be disabled until payment is received. Fees will be billed monthly to your credit card or your pre-paid account will be debited monthly for the LunchBuzz Email Marketing Product, even if you are not actively using the LunchBuzz Email Marketing Product. .
4.2 Payment. Payment for Products will be made by a valid credit card accepted by LunchBuzz. Checks will be accepted for prepayments of at least six (3) months. Fees are payable in U.S. dollars. If the monthly credit card payment option is selected or if you have previously provided your credit card for payment, you hereby authorize LunchBuzz to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period and continuing until such time as your account is terminated. If LunchBuzz is for any reason unable to effect automatic payment via your credit card, LunchBuzz will attempt to notify you via email and your LunchBuzz account will be disabled until payment is received. Amounts paid for the LunchBuzz Products are not refundable.
4.3 Subscriber Opt Out. Every email message sent in connection with the LunchBuzz Products contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Under the CAN-SPAM Act of 2003, LunchBuzz is responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
4.4 Permission Practices. You agree to provide, access or otherwise use only Permission Based Lists in connection with your use of the LunchBuzz Products. You hereby covenant that you shall not use any other lists in connection with your use of the LunchBuzz Products. LunchBuzz does not mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a LunchBuzz template or any other features or functionality from the Products and use them for any purpose. Emails sent through the Product may generate spam complaints from recipients. As a matter of privacy, LunchBuzz cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email addresses supplied to LunchBuzz do not generate a number of spam complaints in excess of industry norms. LunchBuzz, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. LunchBuzz will terminate your use of its Products if LunchBuzz determines that your level of spam complaints is higher than industry norms.
4.5 Footers. For every email message sent in connection with the Products, you acknowledge and agree that LunchBuzz may add an identifying footer stating "Email Powered by LunchBuzz" or a similar message.
4.6 Images. Images hosted by LunchBuzz on LunchBuzz controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
4.7 Voice messages. Voice messages hosted by LunchBuzz on LunchBuzz controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use voice messages provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
4.8 Streaming Video. Streaming Video hosted by LunchBuzz through video streaming services such as “YouTube” are the sole responsibility of the User, unless video content is produced by LunchBuzz for the customer, in which case, the content is solely owned by LunchBuzz. To the extent you streaming video produced/provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the streaming video in an unaltered state solely in connection with your use of the Products
4.9 Prohibited Content. LunchBuzz prohibits the use of the Products or web site by any person or entity that:
– Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
– Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
– Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
– Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
– Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
– Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
– Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
– Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
– Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
– Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
– Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
5.0 Right to Disable Access.
LunchBuzz, at its own discretion, may immediately disable your access to the Products without refund if LunchBuzz believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
5.1 LunchBuzz Community
You agree that you are responsible for your own use of the LunchBuzz Community, for any posts you make, and for any consequences thereof. You agree that you will use the LunchBuzz Community in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws. You agree to abide by the LunchBuzz Terms and Conditions of Use and the rules and restrictions therein. The LunchBuzz Terms and Conditions of Use are incorporated by reference into this Agreement. LunchBuzz may, in its sole discretion, modify or revise the The LunchBuzz Terms and Conditions of Use at any time, and you agree to be bound by such modifications or revisions. Violation of any of the foregoing, including the The LunchBuzz Terms and Conditions of Use may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. LunchBuzz reserves the right, but shall have no obligation, to investigate your use of the LunchBuzz Community in order to (a) determine whether a violation of the Agreement has occurred or (b) comply with any applicable law, regulation, legal process or governmental request. Much of the content of the LunchBuzz Community, including the contents of specific postings, profiles, blogs, images and videos, is provided by and is the sole responsibility of the person or people who made such postings. LunchBuzz does not regularly monitor the content of the LunchBuzz Community, so please review the LunchBuzz Community Terms and Conditions of Use for acceptable behavior in the LunchBuzz Community. The LunchBuzz Community is intended to provide LunchBuzz customers with the opportunity to exchange useful information. LunchBuzz does not edit any postings, and does not pre-screen or review every posting. You agree that LunchBuzz is not responsible for the content of any postings in the LunchBuzz Community and has no duty to correct any erroneous statements on any part of the LunchBuzz Community.
5.2 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by LunchBuzz in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
5.3 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that LunchBuzz perform such work at its standard professional services rates. LunchBuzz can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
5.4 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although LunchBuzz has no obligation to monitor the content provided by you or your use of the Products, LunchBuzz may do so and may block any email messages, remove any such content or prohibit any use of the Products that LunchBuzz believes may be (or is alleged to be) in violation of the foregoing.
5.5 Indemnification. You hereby agree to defend, indemnify and hold harmless LunchBuzz and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) arises from your activities or postings on the LunchBuzz Contact Community, (iv)otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that LunchBuzz has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
5.6 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to LunchBuzz. LunchBuzz may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of LunchBuzz, LunchBuzz may share your information with the marketing partner and the marketing partner may share related information with LunchBuzz. Except as described above. LunchBuzz will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your LunchBuzz account was terminated from due to unsolicited commercial email being sent from your LunchBuzz account. LunchBuzz will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event LunchBuzz amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.
5.7 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to LunchBuzz or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to LunchBuzz by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to LunchBuzz by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted— LunchBuzz a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
6. Termination
You may terminate this Agreement at any time by calling LunchBuzz Customer Support. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND LUNCHBUZZ IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
LunchBuzz may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. LunchBuzz shall have no liability to you or any third party because of such termination or action.
LunchBuzz may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. LunchBuzz will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified (at LunchBuzz's sole discretion) as inactive for over 120 days, LunchBuzz has the right to permanently delete your subscriber data. LunchBuzz will use good faith efforts to contact you via email prior to taking any permanent removal actions.
7. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. LUNCHBUZZ DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND LUNCHBUZZ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for LunchBuzz to use commercially reasonable efforts to adjust or repair the Products.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LUNCHBUZZ OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "LUNCHBUZZ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF LUNCHBUZZ SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, LUNCHBUZZ IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF LUNCHBUZZ TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY LUNCHBUZZ TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
9. Restricted Persons; Export of Products or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify LunchBuzz within twenty-four (24) hours, and LunchBuzz shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to LunchBuzz.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
10. Links to Third-Party Web Sites
This web site may contain links to non- LunchBuzz web sites. These links are provided to you as a convenience, and LunchBuzz is not responsible for the content of any linked web site. Any non- LunchBuzz web site accessed from this web site is independent from LunchBuzz, and LunchBuzz has no control over the content of that web site. In addition, a link to any non- LunchBuzz web site does not imply that LunchBuzz endorses or accepts any responsibility for the content or use of such web site.
11. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by LunchBuzz of that third party or of any product or service provided by a third party.
12. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site or the Products infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting LunchBuzz’s copyright agent (identified below) and providing the following information:
– Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
– Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
– Your name, address, telephone number and (if available) email address.
– A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
– A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
– A signature or the electronic equivalent from the copyright holder or authorized representative.
LunchBuzz’s agent for copyright issues relating to this web site is as follows:
Norman Adcox
The LunchBuzz
1710 Madison Avenue, Suite 74
Memphis, TN 38104
Phone: (901) 832-2969
Email: info@thelunchbuzz.com
In an effort to protect the rights of copyright owners, LunchBuzz maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.
13. Open Positions on Career Pages
LunchBuzz may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.
14. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. LunchBuzz will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a Third Party Service, if any, through which you access the Products. LunchBuzz has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. LunchBuzz shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.
15. Forward-Looking Statements
You acknowledge that this web site contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding LunchBuzz. These forward-looking statements regarding LunchBuzz are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of LunchBuzz management. Words such as "expect," "anticipate," "should," "believe," "hope," "target," "project," "goals," "estimate," "potential," "predict," "may," "will," "might," "could," "intend," variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond LunchBuzz’s control. LunchBuzz’s actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including those risk factors contained in documents that may be filed by LunchBuzz from time to time with the Securities and Exchange Commission, including but not limited to LunchBuzz’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Past performance is not necessarily indicative of future results. LunchBuzz undertakes no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
16. Miscellaneous
16.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.2 LunchBuzz and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
16.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind LunchBuzz in any respect whatsoever.
16.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
16.5 The Agreement shall be governed by the laws of the State of Tennessee, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Memphis, Tennessee.
Additional Information
If you have any questions about the rights and restrictions above, please contact LunchBuzz by email at info@LunchBuzz.com.
Copyright ©2007-2009, LunchBuzz, Inc. All Rights Reserved.
Revised August 2009
LunchBuzz Inc. ("LunchBuzz") provides restaurants, caterers and eating establishments with (i) a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns (the "Email Marketing Product"), The Email Marketing Product, and any related offerings are referred to in these Terms and Conditions of Use as the "Products"). LunchBuzz’s Products may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy, which is incorporated into these Terms and Conditions of Use by reference.
The following are the terms and conditions of Use for access to this web site and use of the Products. By clicking the ‘Submit’ button on the sign-up page, or by logging in to your LunchBuzz account or by accessing the LunchBuzz services via any API interface, you accept these terms and conditions of Use.
1. Copyright and Trademark Information
Copyright © 2007-2009 LunchBuzz, Inc. All Rights Reserved.
This web site, and the information which it contains, is the property of LunchBuzz and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "LunchBuzz" and the LunchBuzz logo are registered trademarks of Lunchbuzz, Inc. under the applicable laws of the United States and/or other countries. Other LunchBuzz product or service names or logos appearing in this Site are either trademarks or registered trademarks of LunchBuzz, Inc. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of LunchBuzz’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:
– The Products may not be used for the sending of unsolicited email (sometimes called "spam").
– The Products may only be used for lawful purposes.
– The Email Marketing Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit. For more information on fees, see Section 4 below and the Fee Schedule.
– You agree you will not access or otherwise provide third party mailing lists to LunchBuzz as an email database.
– You agree to provide LunchBuzz use of email lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of LunchBuzz. You hereby covenant that you shall not use any other lists in connection with your use of the Products.
– You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.
– Every email message sent by Lunchbuzz in connection with the Products must contain the LunchBuzz "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
– You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.
– You acknowledge and agree that LunchBuzz is the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Products.
– You agree that in any email message sent by The LunchBuzz using the Products you use may include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
– You will adopt and maintain the Privacy Policy, when providing email lists to the LunchBuzz which may be modified by LunchBuzz from time to time.
3. Products and Support
The Product is provided subject to these Terms and Conditions of Use, as they may be amended by LunchBuzz, and any guidelines, rules or operating policies that LunchBuzz may establish and post from time to time (collectively, the "Agreement"), including without limitation LunchBuzz's customer Privacy Policy, as linked from all email generated from LunchBuzz or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on TheLunchBuzz.com website, or otherwise providing notice to you, LunchBuzz may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at LunchBuzz ‘s website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete and sign a LunchBuzz Usage Contract in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the Usage Contract. You may from time to time provide LunchBuzz's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by LunchBuzz or its personnel.
4. Free Trial; Fees and Payment
4.1 Fees for LunchBuzz Product. For the Email Marketing Product, once you have completed your free trial period or you have exceeded the free subscriber limit, you will be subject to monthly subscription fees in accordance with the Usage Agreement and related information. The Fees are based an agreed monthly rate in your area. You will be required to submit payment monthly in advance for the LunchBuzz Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the LunchBuzz Marketing Product. Access to the LunchBuzz Marketing Product will be disabled until payment is received. Fees will be billed monthly to your credit card or your pre-paid account will be debited monthly for the LunchBuzz Email Marketing Product, even if you are not actively using the LunchBuzz Email Marketing Product. .
4.2 Payment. Payment for Products will be made by a valid credit card accepted by LunchBuzz. Checks will be accepted for prepayments of at least six (3) months. Fees are payable in U.S. dollars. If the monthly credit card payment option is selected or if you have previously provided your credit card for payment, you hereby authorize LunchBuzz to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period and continuing until such time as your account is terminated. If LunchBuzz is for any reason unable to effect automatic payment via your credit card, LunchBuzz will attempt to notify you via email and your LunchBuzz account will be disabled until payment is received. Amounts paid for the LunchBuzz Products are not refundable.
4.3 Subscriber Opt Out. Every email message sent in connection with the LunchBuzz Products contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Under the CAN-SPAM Act of 2003, LunchBuzz is responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
4.4 Permission Practices. You agree to provide, access or otherwise use only Permission Based Lists in connection with your use of the LunchBuzz Products. You hereby covenant that you shall not use any other lists in connection with your use of the LunchBuzz Products. LunchBuzz does not mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a LunchBuzz template or any other features or functionality from the Products and use them for any purpose. Emails sent through the Product may generate spam complaints from recipients. As a matter of privacy, LunchBuzz cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email addresses supplied to LunchBuzz do not generate a number of spam complaints in excess of industry norms. LunchBuzz, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. LunchBuzz will terminate your use of its Products if LunchBuzz determines that your level of spam complaints is higher than industry norms.
4.5 Footers. For every email message sent in connection with the Products, you acknowledge and agree that LunchBuzz may add an identifying footer stating "Email Powered by LunchBuzz" or a similar message.
4.6 Images. Images hosted by LunchBuzz on LunchBuzz controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
4.7 Voice messages. Voice messages hosted by LunchBuzz on LunchBuzz controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use voice messages provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
4.8 Streaming Video. Streaming Video hosted by LunchBuzz through video streaming services such as “YouTube” are the sole responsibility of the User, unless video content is produced by LunchBuzz for the customer, in which case, the content is solely owned by LunchBuzz. To the extent you streaming video produced/provided by LunchBuzz, LunchBuzz hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the streaming video in an unaltered state solely in connection with your use of the Products
4.9 Prohibited Content. LunchBuzz prohibits the use of the Products or web site by any person or entity that:
– Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
– Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
– Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
– Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
– Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
– Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
– Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
– Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
– Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
– Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
– Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
5.0 Right to Disable Access.
LunchBuzz, at its own discretion, may immediately disable your access to the Products without refund if LunchBuzz believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
5.1 LunchBuzz Community
You agree that you are responsible for your own use of the LunchBuzz Community, for any posts you make, and for any consequences thereof. You agree that you will use the LunchBuzz Community in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all United States export control laws. You agree to abide by the LunchBuzz Terms and Conditions of Use and the rules and restrictions therein. The LunchBuzz Terms and Conditions of Use are incorporated by reference into this Agreement. LunchBuzz may, in its sole discretion, modify or revise the The LunchBuzz Terms and Conditions of Use at any time, and you agree to be bound by such modifications or revisions. Violation of any of the foregoing, including the The LunchBuzz Terms and Conditions of Use may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. LunchBuzz reserves the right, but shall have no obligation, to investigate your use of the LunchBuzz Community in order to (a) determine whether a violation of the Agreement has occurred or (b) comply with any applicable law, regulation, legal process or governmental request. Much of the content of the LunchBuzz Community, including the contents of specific postings, profiles, blogs, images and videos, is provided by and is the sole responsibility of the person or people who made such postings. LunchBuzz does not regularly monitor the content of the LunchBuzz Community, so please review the LunchBuzz Community Terms and Conditions of Use for acceptable behavior in the LunchBuzz Community. The LunchBuzz Community is intended to provide LunchBuzz customers with the opportunity to exchange useful information. LunchBuzz does not edit any postings, and does not pre-screen or review every posting. You agree that LunchBuzz is not responsible for the content of any postings in the LunchBuzz Community and has no duty to correct any erroneous statements on any part of the LunchBuzz Community.
5.2 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by LunchBuzz in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
5.3 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that LunchBuzz perform such work at its standard professional services rates. LunchBuzz can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
5.4 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although LunchBuzz has no obligation to monitor the content provided by you or your use of the Products, LunchBuzz may do so and may block any email messages, remove any such content or prohibit any use of the Products that LunchBuzz believes may be (or is alleged to be) in violation of the foregoing.
5.5 Indemnification. You hereby agree to defend, indemnify and hold harmless LunchBuzz and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) arises from your activities or postings on the LunchBuzz Contact Community, (iv)otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that LunchBuzz has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
5.6 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to LunchBuzz. LunchBuzz may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of LunchBuzz, LunchBuzz may share your information with the marketing partner and the marketing partner may share related information with LunchBuzz. Except as described above. LunchBuzz will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your LunchBuzz account was terminated from due to unsolicited commercial email being sent from your LunchBuzz account. LunchBuzz will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event LunchBuzz amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.
5.7 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to LunchBuzz or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to LunchBuzz by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to LunchBuzz by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted— LunchBuzz a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
6. Termination
You may terminate this Agreement at any time by calling LunchBuzz Customer Support. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND LUNCHBUZZ IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
LunchBuzz may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. LunchBuzz shall have no liability to you or any third party because of such termination or action.
LunchBuzz may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. LunchBuzz will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified (at LunchBuzz's sole discretion) as inactive for over 120 days, LunchBuzz has the right to permanently delete your subscriber data. LunchBuzz will use good faith efforts to contact you via email prior to taking any permanent removal actions.
7. Warranty Disclaimer; Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. LUNCHBUZZ DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND LUNCHBUZZ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for LunchBuzz to use commercially reasonable efforts to adjust or repair the Products.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LUNCHBUZZ OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "LUNCHBUZZ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF LUNCHBUZZ SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, LUNCHBUZZ IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF LUNCHBUZZ TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY LUNCHBUZZ TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
9. Restricted Persons; Export of Products or Technical Data
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify LunchBuzz within twenty-four (24) hours, and LunchBuzz shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to LunchBuzz.
You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
10. Links to Third-Party Web Sites
This web site may contain links to non- LunchBuzz web sites. These links are provided to you as a convenience, and LunchBuzz is not responsible for the content of any linked web site. Any non- LunchBuzz web site accessed from this web site is independent from LunchBuzz, and LunchBuzz has no control over the content of that web site. In addition, a link to any non- LunchBuzz web site does not imply that LunchBuzz endorses or accepts any responsibility for the content or use of such web site.
11. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by LunchBuzz of that third party or of any product or service provided by a third party.
12. Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from this web site or the Products infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting LunchBuzz’s copyright agent (identified below) and providing the following information:
– Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
– Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
– Your name, address, telephone number and (if available) email address.
– A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
– A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
– A signature or the electronic equivalent from the copyright holder or authorized representative.
LunchBuzz’s agent for copyright issues relating to this web site is as follows:
Norman Adcox
The LunchBuzz
1710 Madison Avenue, Suite 74
Memphis, TN 38104
Phone: (901) 832-2969
Email: info@thelunchbuzz.com
In an effort to protect the rights of copyright owners, LunchBuzz maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.
13. Open Positions on Career Pages
LunchBuzz may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.
14. Username and Password
You are responsible for maintaining the security of your account, passwords, and files. LunchBuzz will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a Third Party Service, if any, through which you access the Products. LunchBuzz has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. LunchBuzz shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.
15. Forward-Looking Statements
You acknowledge that this web site contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding LunchBuzz. These forward-looking statements regarding LunchBuzz are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of LunchBuzz management. Words such as "expect," "anticipate," "should," "believe," "hope," "target," "project," "goals," "estimate," "potential," "predict," "may," "will," "might," "could," "intend," variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond LunchBuzz’s control. LunchBuzz’s actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including those risk factors contained in documents that may be filed by LunchBuzz from time to time with the Securities and Exchange Commission, including but not limited to LunchBuzz’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Past performance is not necessarily indicative of future results. LunchBuzz undertakes no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
16. Miscellaneous
16.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.2 LunchBuzz and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
16.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind LunchBuzz in any respect whatsoever.
16.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
16.5 The Agreement shall be governed by the laws of the State of Tennessee, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Memphis, Tennessee.
Additional Information
If you have any questions about the rights and restrictions above, please contact LunchBuzz by email at info@LunchBuzz.com.
Copyright ©2007-2009, LunchBuzz, Inc. All Rights Reserved.
Revised August 2009