Last Modified: September 1, 2026
Welcome to MFMsoft!
These Terms of Service (these “Terms”) set forth the terms and conditions for accessing and using the MFMsoft menu optimization tool and platform, and any related software, documentation, and online or other digital services (collectively, the “Service”) provided by MFMsoft, LLC (including its successors and assigns, “MFMsoft,” “we,” “our,” or “us”). By accessing and using the Service, you agree to these Terms and acknowledge that you have read and understood our Privacy Notice at www.MFMsoft.com/privacy-policy-mfmsoft (as it may be updated from time to time, our “Privacy Notice”), which is incorporated herein by reference. If you don’t agree to these Terms, you may not use the Service. We reserve the right to modify these Terms, as described below. These Terms apply to all visitors and users of the Service, including brands and merchants to whom we make the Service available, and to all others who access the Service (collectively, “Users,” and, as applicable to you, “you” or “your”).
PLEASE READ THESE TERMS CAREFULLY TO ENSURE YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 14.2 (THE “ARBITRATION AGREEMENT”) AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 14.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, REQUIRE THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (AS DEFINED BELOW), YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.
1. How We Administer the Service
1.1 Eligibility. This is a contract between you and MFMsoft. You must read and agree to these Terms before using the Service. You may use the Service only if you can form a legally binding contract with us and in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”). To use the Service, you must be at least 18 years old (or the age of majority in your jurisdiction). The Service is not available to any Users we previously removed from the Service.
1.2 How the Service Works. The Service allows you to link various Third-Party Services (defined below) to ingest User Content (defined below), which the Service uses, among other things, to optimize brand images, update online menu information, create combination offerings, and access transactional data without consumer or personal information, and more. As described in more detail below, the Service is provided to you on a no-fee basis in exchange for a grant of rights to use your User Content for our lawful business purposes.
1.3 User Accounts
(a) Your User Account; Suspension and Termination. Your account on the Service (your “User Account”) gives you access to certain services and features that we may, in our sole discretion, establish and maintain as part of the Service from time to time. We may, with or without prior notice, permanently terminate or temporarily suspend your access to your User Account and/or the Service without liability and for any or no reason, including if you violate any provision of these Terms. Additionally, you may deactivate your User Account at any time. We may, with or without prior notice, change or stop providing the Service to you or to Users generally, or create usage limits for the Service.
(b) Organizational Accounts. An individual may access and/or use the Service on behalf of a company or other entity, such as that individual’s employer (such entity, an “Organization”). In such cases, notwithstanding anything to the contrary herein: (a) these Terms are an agreement between (i) us and such individual and (ii) us and that Organization; (b) “you,” as used in these Terms in the context of a license grant, assignment, restriction, obligation, acknowledgment, representation, warranty, or covenant, or in any similar context, means (i) such individual and (ii) “the Organization, on behalf of the Organization and its subsidiaries and affiliates, and its and their respective directors, officers, employees, contractors, agents, and other representatives who access and/or use the Service (collectively, “Org Users”)”; and “your” has the corresponding meanings; (c) such individual represents and warrants that such individual has the authority to bind that Organization to these Terms (and, in the absence of such authority, such individual may not access or use the Service); (d) such individual’s acceptance of these Terms will bind that Organization to these Terms; (e) we may disclose information regarding such individual and such individual’s access to and use of the Service to that Organization; (f) such individual’s right to access and use the Service may be suspended or terminated (and the administration of the applicable User Account may be transferred) if such individual ceases to be associated with, or ceases to use an email address associated with or provisioned by, that Organization; (g) that Organization will make all Org Users aware of these Terms’ provisions, as applicable to such Org Users, and will cause each Org User to comply with such provisions; and (h) that Organization will be solely responsible and liable for all acts and omissions of the Org Users, and any act or omission by any Org User that would constitute a breach of these Terms had it been taken by that Organization will be deemed a breach of these Terms by that Organization. Without limiting the generality of the foregoing, if an individual opens a User Account using an email address associated with or provisioned by an Organization, or if an Organization pays fees due in connection with such individual’s access to or use of the Service (or reimburses such individual for payment of such fees), then we may, in our sole discretion, deem such individual to be accessing and using the Service on behalf of that Organization.
(c) Connecting via Third-Party Services. By connecting to the Service via a third-party service, you give us permission to access and use your system and transactional information, excluding any consumer or personal information from that service. If you integrate a third-party point-of-sale system with the Service and import related data, you give us permission to import all such data into your User Account.
(d) Account Security. You may never use another User’s User Account without that User’s permission. You are solely responsible for all activity on your User Account. You will keep your User Account password(s) and any other authentication credentials secure and private. We encourage you to use “strong” passwords (combinations of upper- and lowercase letters, numbers, and symbols) to protect your User Account. Any Org User with administrator-level access to your User Account can modify your User Account settings, access, and billing information. We will not be liable for, and expressly disclaim liability for, any losses caused by unauthorized use of your User Account and/or any changes to your User Account. You will notify us immediately of any security breach or unauthorized use of your User Account.
(e) Account Settings. You may control certain aspects of your User Account and any associated User profile, as well as how you interact with the Service, by changing the settings on your settings page. By providing us with your email address, you consent to our using that address to send you Service-related notices. If we send you marketing-related emails, you may opt out of receiving them or change your preferences by contacting the Service support team at [email protected] or by clicking the “unsubscribe” link in a marketing email. Opting out will not prevent you from receiving Service-related notices.
1.4 Your Interactions with Other Users. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS, INCLUDING THE SHARING OF INFORMATION. WE RESERVE THE RIGHT TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. WE EXPRESSLY DISCLAIM ALL LIABILITY ARISING FROM YOUR INTERACTIONS WITH OTHER USERS AND FROM ANY USER’S ACTION OR INACTION, INCLUDING THOSE RELATING TO USER CONTENT (AS DEFINED BELOW).
2. Access to the Service; Service Restrictions
2.1 Access to the Service. Subject to your compliance with these Terms and any documentation we may make available to you, you are hereby granted a non-exclusive, limited, non-transferable, and freely revocable right to access and use the Service solely for your internal business purposes, as permitted by the Service's features. We reserve all rights not expressly granted herein in and to the Service.
2.2 Restrictions and Acceptable Use. Except to the extent that a restriction is prohibited by Applicable Law, you will not do, and will not enable any third party to do, any of the following:
(a) disassemble, reverse engineer, decode, or decompile any part of the Service or license, or resell or modify any part of the Service;
(b) use any automated or non-automated means to access the Service for “scraping” (except that public search engines may use spiders to create searchable indices of public materials, only as specified in the robots.txt file);
(c) use the Service in any manner that affects the stability of the servers, the operation or performance of the Service, or any User’s use of the Service;
(d) copy, rent, lease, sell, loan, transfer, assign, sublicense, resell, distribute, modify, alter, or create derivative works of any part of the Service or of any of our intellectual property;
(e) use the Service in any manner that (i) violates any Applicable Law, contractual obligation, or any person’s right, (ii) is fraudulent, false, deceptive, or defamatory, (iii) promotes hatred, violence, or harm against, or (iv) otherwise may be harmful or objectionable to us or any other third party;
(f) use the Service in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Service, or otherwise to our detriment or disadvantage;
(g) bypass any measures we may use to prevent or restrict access to the Service;
(h) use the Service to transmit spam or other unsolicited email (and we may immediately remove any content we believe to be spam) or use the Service for commercial solicitation;
(i) access any content available on or via the Service through any technology or means other than those provided by the Service or those authorized by us;
(j) attempt to interfere with, compromise the integrity or security of, or decipher any transmissions to or from the servers running the Service;
(k) collect or harvest any personal information from the Service; or
(l) refer to us or the Service in a manner that could imply a relationship involving endorsement, affiliation, or sponsorship between you (or a third party) and us without our consent.
3. User Content
3.1 Ownership. As between you and us, we own all information, data, and other content we collect or otherwise receive from the Service (“User Content”). For the avoidance of doubt, all ordering data, transactional data, and other aggregated analytics data regarding products, sales, and ordering constitute User Content. For clarity, User Content does not include personal or consumer data.
3.2 Usage and Distribution Rights. You grant, and you represent and warrant that you have all rights necessary to grant, to us, under all of your intellectual property rights, a fully paid-up, royalty-free, irrevocable, perpetual, fully sublicensable (through multiple tiers) and transferable, non-exclusive right and license to use, copy, store, modify, distribute, reproduce, publish, list, make derivative works of, display, and share with third parties (including any MFMsoft customers or partners), and otherwise exploit (whether commercially or otherwise) your User Content for any lawful purpose, subject to the limitations on disclosure of your Merchant-Identifying Information set forth in Section 7.3 (Masking of Your Business Information).
3.3 Acceptable Use. You affirm, represent, and warrant the following: (a) you have obtained, and are solely responsible for obtaining, all consents required by Applicable Law to provide User Content relating to third parties; (b) your User Content and our use thereof as contemplated by these Terms and the Service will not violate any Applicable Law or infringe any rights of any third party, including, but not limited to, intellectual property, privacy, and confidentiality rights; (c) you will not upload or make available through the Service, either directly or by other means, any personal information of children under 13 or the applicable age of digital consent; and (d) your User Content does not include sexually suggestive content; hate speech or direct attacks on an individual or group; content that is abusive, harassing, defamatory, vulgar, libelous, or invasive of another’s privacy; sexist or racially, ethnically, or otherwise discriminatory content; content that contains self-harm or excessive violence; impostor profiles; content in furtherance of harmful or illegal activities; malicious programs or code; any person’s personal information without that person’s consent; spam messages; and/or otherwise objectionable content.
3.4 Responsibility for User Content. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY USER CONTENT. YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USER CONTENT AND THE CONSEQUENCES OF SUBMITTING, POSTING, DISPLAYING, PROVIDING, SHARING, OR OTHERWISE MAKING IT AVAILABLE ON OR THROUGH THE SERVICE. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE ACT ONLY AS A PASSIVE CONDUIT FOR YOUR ONLINE DISTRIBUTION AND PUBLICATION OF YOUR USER CONTENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SERVICE MAY EXPOSE YOU TO CONTENT THAT IS INACCURATE, OBJECTIONABLE, INAPPROPRIATE FOR CHILDREN, OR OTHERWISE UNSUITED TO YOUR PURPOSE, AND THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES YOU ALLEGE TO INCUR AS A RESULT OF OR RELATING TO ANY CONTENT ACCESSED ON OR THROUGH THE SERVICE.
4. Intellectual Property
4.1 MFMsoft Intellectual Property. You understand and acknowledge that we (or our licensors, including other Users, as applicable) own and will continue to own all rights (including intellectual property rights), title, and interest in and to the Service, all materials and content displayed or otherwise made available on or through the Service (excluding your User Content), and all software, algorithms, code, technology, and intellectual property underlying, included in, or associated with the Service. Use of any intellectual property for any purpose not expressly permitted by these Terms is strictly prohibited.
4.2 Usage Data. We may collect, or you may provide, information about your use of the Service and any MFMsoft software (collectively, “Usage Data”). For clarity, Usage Data does not include User Content. All Usage Data is and will be owned solely and exclusively by us, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to us all rights (including intellectual property rights), title, and interest in and to the Usage Data. Accordingly, we may use, maintain, and/or process the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to provide and maintain the Service; (b) to improve our products and services (including the Service) and to develop new products, services, and/or features; (c) to monitor your use of the Service; (d) for research and analytics, including, without limitation, data analysis, identifying usage trends, and/or customer research; and (e) to share analytics and other derived or aggregated Usage Data with third parties. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service; you understand and acknowledge that we may use these and other lawful measures to verify your compliance with these Terms and to enforce our rights, including intellectual property rights, in and to the Service. Our disclosure of User Content and Usage Data, and any Merchant-Identifying Information contained in them, is subject to the limitations set forth in Section 7.3 (Masking of Your Business Information).
4.3 Open-Source Software. Some software used in our Service may be offered under an open-source license that we make available to you. Some open-source licenses may expressly override certain of these terms, so please read those licenses.
4.4 Feedback. To the extent you provide us with any suggestions, recommendations, or other feedback relating to the Service or any other MFMsoft products or services (collectively, “Feedback”), you hereby assign to us all rights (including intellectual property rights), title, and interest in and to the Feedback, without providing any attribution or compensation to you or any third party. Please treat Feedback as our Confidential Information (as defined below).
5. No Fees
In consideration of the rights and licenses granted by you hereunder, the Service is provided to you free of charge while these Terms are in effect. You are responsible for all taxes, duties, and other similar charges of any kind imposed on you by any governmental authority based on your use of the Service.
6. Confidential Information
The Service may include non-public, proprietary, or confidential information of MFMsoft and/or other Users (“Confidential Information”). Confidential Information includes any information that should reasonably be understood to be confidential given its nature and the circumstances of disclosure, including non-public business, product, technology, and marketing information. You will: (a) protect the confidentiality of all Confidential Information with at least the same degree of care you would use to protect your own highly sensitive confidential information, but in no event less than a reasonable degree of care; (b) not use any Confidential Information for any purpose other than exercising your rights or performing your obligations under these Terms; and (c) not disclose any Confidential Information to any person or entity, except your service providers or financial or legal advisors who (i) need to know the Confidential Information and (ii) are bound by non-use and non-disclosure restrictions at least as restrictive as those set forth in this Section.
7. Privacy; Data Security
7.1 Limited Account Information. In connection with creating and administering your User Account, we collect limited personal information about you and your authorized Org Users, such as name, email address, and phone number. We use this information to administer your User Account, communicate with you about the Service, verify your identity (including through multi-factor authentication), and provide support, as further described in our Privacy Notice.
7.2 No Collection of Consumer Data. The Service ingests transactional, ordering, and other operational data from the Third-Party Services you connect to optimize your menu, offerings, and brand presentation, as described above. We do not collect, access, or use any personal or consumer information belonging to your customers, including information from order tickets or other transactional data. You are responsible for configuring your Third-Party Service integrations so that only transactional and operational data, and no personal or consumer information, is transmitted to the Service, and for obtaining any consents required by Applicable Law for the data you do provide.
7.3 Masking of Your Business Information. When we share User Content, Usage Data, or aggregated or derived data with third parties as described in these Terms, we mask your business name, address, and any other information that would identify you as a merchant (collectively, “Merchant-Identifying Information”). We do not disclose your Merchant-Identifying Information to any third party, except to the specific food, beverage, or other product company whose products you sell through the Service, and then only to help that company assist you in identifying sales opportunities and gaps in your product offerings. We do not authorize that company to use your Merchant-Identifying Information for any other purpose.
7.4 Aggregated and Usage Data. We may collect, use, and disclose Usage Data and aggregated or anonymized data derived from User Content as described above and in our Privacy Notice. Such data may be transferred to and/or processed in the United States.
7.5 Security. We maintain administrative, technical, and physical safeguards to protect the data we collect and process in connection with the Service. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures. You acknowledge that you provide data to the Service at your own risk and that you are solely responsible for safeguarding the credentials you use to connect Third-Party Services to the Service.
8. Text Messaging and Calls
8.1 General. You may provide us with your telephone number when creating your User Account or at any other time. By providing a telephone number, you consent to receive autodialed or prerecorded calls and/or text messages from us or on our behalf at that number. We may place such calls or send such texts to (a) help keep your User Account secure through multi-factor authentication (“MFA”); (b) help you access your User Account if you are experiencing difficulties; and/or (c) as otherwise necessary to service your account or enforce these Terms, our policies, Applicable Law, or any other agreement we may have with you. Part of the MFA identity-verification process may involve MFMsoft sending text messages containing security codes to the telephone number you provided, and you agree to receive such texts from or on behalf of MFMsoft.
8.2 Consent to Transactional Communications. You expressly consent and agree that MFMsoft may contact you by written, electronic, and/or verbal means, including manual dialing, email, prerecorded or artificial voice messages, and/or use of an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions you request and to service your account, and as permitted by Applicable Law, even if your phone number is registered on any United States federal and/or state Do-Not-Call/Do-Not-email registry/ies. Message and data rates apply. For clarity, the text messages described in this paragraph are transactional, not promotional.
8.3 Consent to Promotional Messages. Additionally, you may enroll to receive recurring SMS/text messages from MFMsoft. You may enroll to receive text messages about account-related news and alerts, promotional offers (including cart reminders), and marketing related to MFMsoft products and/or services. By enrolling in MFMsoft’s SMS/text messaging service, you agree to receive text messages from MFMsoft at the mobile phone number you provide, and you certify that the number is true and accurate and that you are authorized to enroll it to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that message and data rates apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider. Message frequency varies. Consent is not required as a condition of purchase. To the extent permitted by Applicable Law, we are not responsible for any delays in sending or receiving text messages.
8.4 Unsubscribing From Promotional Messages. You may opt out of promotional text messages at any time. To unsubscribe, text or reply “STOP,” “QUIT,” “END,” “CANCEL,” or “UNSUBSCRIBE” to the number from which you received the text on the mobile device receiving the messages, or to the other phone number provided by MFMsoft (if any) for this purpose. You consent that, following such a request to unsubscribe, you may receive one (1) final text message from or on behalf of MFMsoft confirming your request. For help, please contact us at [email protected].
9. Your Use of Third-Party Services
The service may contain links to third-party sites, materials, and/or services, including but not limited to point-of-sale systems (collectively, “Third-Party Services”) that are not owned or controlled by us. Certain functionalities of the service may require your use of third-party services, and you are subject to and agree to the third party’s terms and conditions made available via its services. We do not endorse or assume any responsibility for any third-party services. If you access a third-party service from the service or share your user content on or through any third-party service, you do so at your own risk, and you understand that these terms and our privacy notice do not apply to your use of any third-party service. You expressly relieve us of any and all liability arising from your access to and/or use of any third-party service. Additionally, your dealings with, or participation in promotions of, advertisers found on the service are solely between you and such advertisers. You understand and acknowledge that we will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
10. Release
You hereby release us from all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses, in each case of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including any other User) in connection with the Service. In addition, you waive any Applicable Law that provides, in substance, that “a general release does not extend to claims which the releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, would have materially affected his or her settlement with the released party.”
11. Indemnity
You will defend, indemnify, and hold us and our subsidiaries and affiliates, and our and their respective agents, suppliers, licensors, employees, contractors, officers, and directors (collectively, including MFMsoft, the “MFMsoft Indemnitees”) harmless from and against any and all claims, damages (whether direct, indirect, incidental, consequential, or otherwise), obligations, losses, liabilities, costs, debts, and expenses (including, but not limited to, legal fees) arising from: (a) your access to and/or use of the Service; (b) your violation of any term of these Terms; (c) your violation of any third-party right, including, without limitation, any privacy or intellectual property right; (d) your violation of any Applicable Law; (e) User Content or any content submitted via your User Account; (f) your willful misconduct; or (g) any third party’s access to and/or use of the Service using your authentication credential(s).
12. No Warranty; Disclaimers
The service is provided on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, the service, the intellectual property, and any other information available on or through the service are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and/or non-infringement. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NONE OF THE MFMsoft INDEMNITEES WARRANTS THAT ANY CONTENT OR ANY OTHER INFORMATION CONTAINED IN, OR AVAILABLE VIA, THE SERVICE IS ACCURATE, COMPREHENSIVE, RELIABLE, USEFUL, OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS SO OBTAINED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S) OR MOBILE DEVICE(S) AND/OR FOR LOSS OF DATA THAT RESULTS FROM THE SAME OR FROM YOUR ACCESS TO AND/OR USE OF THE SERVICE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW.
Further, MFMsoft does not warrant, endorse, guarantee, recommend, or assume responsibility for any product or service advertised or offered by any third party through the service or any hyperlinked website or service, and MFMsoft will not be a party to, or in any way monitor, any transaction between you and third-party providers of products or services.
13. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will any MFMsoft indemnitee be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, or data, or other intangible losses, arising out of or relating to the use of, or inability to use, the service or any portion thereof. Under no circumstances will we be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the service, your user account, or the information contained therein. In no event will any MFMsoft indemnitee be liable to you for any claims, proceedings, liabilities, obligations, damages, losses, or costs in an amount exceeding the amount you paid to us hereunder or one hundred U.S. Dollars ($100.00), whichever is greater. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES IN CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS RUNNING THE SERVICE AND/OR ANY PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR SIMILAR MALWARE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND (G) YOUR DATA, ANY USER CONTENT, OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
The disclaimers, exclusions, and limitations of liability under these terms will not apply to the extent prohibited by applicable law.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
14.1 Governing Law. These Terms will be governed by the laws of the State of California, without respect to its conflict of laws principles. Notwithstanding the preceding sentence with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration Agreement below and preempts all state laws (and laws of other
jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of the U.S. state where you live (if applicable) or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Confidential Information, or intellectual property rights, as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that California is the proper and exclusive forum for any appeals of an arbitration award, or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable. These Terms were drafted in the English language and this English language version of the Terms is the original, governing instrument of the understanding between you and us. In the event of any conflict between the English version of these Terms and any translation, the English version will prevail.
14.2 Arbitration Agreement
(a) General. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (i) these Terms; (ii) access to or use of the Service, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Service; or (iv) any other aspect of your relationship or transactions with us as a User or consumer (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
(b) Opting Out of Arbitration Agreement. If you are a new User, you can reject and opt out of this Arbitration Agreement within thirty (30) days of accepting these Terms by emailing us at [email protected] with your full, legal name and stating your intent to opt out of this Arbitration Agreement. Opting out of this Arbitration Agreement does not affect the binding nature of any other part of these Terms, including the provisions regarding controlling law or the courts in which any disputes must be brought.
(c) Dispute-Resolution Process. For any Claim, you will first contact us at [email protected] and attempt to resolve the Claim with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve such Claim exclusively through binding arbitration by JAMS before a single arbitrator (the “Arbitrator”), under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. The arbitration will be conducted in the U.S. county where you live (if applicable) or Los Angeles County, California, unless you and MFMsoft agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing and administrative fees and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorneys’ fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this would not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and we agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are, or whether any provision of these Terms is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and/or estoppel.
(d) Equitable Relief. NOTHING IN THIS ARBITRATION AGREEMENT WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
(e) Severability. If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.
14.3 Class Action/Jury Trial Waiver. BY ENTERING INTO THESE TERMS, YOU AND MFMsoft ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THE FOREGOING APPLIES TO ALL USERS (BOTH NATURAL PERSONS AND ENTITIES), REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. YOU AND MFMsoft AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS.
15. U.S. Government Restricted Rights
To the extent the Service is being used by or on behalf of the U.S. Government, the Service will be deemed commercial computer software or commercial computer software documentation (as applicable). Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other Users hereunder, in accordance with 48 C.F.R. §227.7202 and 48 C.F.R. §12.212, as applicable.
16. Export Controls
You understand and acknowledge that the Service may be subject to export control laws and regulations. You will comply with all applicable import and export and re-export control and trade and economic sanctions laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations maintained by the U.S. State Department. You represent and warrant that you are not, and that no person to whom you make the Service available or that is acting on your behalf, or, if you are an Organization, that no person or entity owning 50% or more of your equity securities or other equivalent voting interests, is (a) listed on the List of Specially Designated Nationals and Blocked Persons or on any other list of sanctioned, prohibited, or restricted parties administered by OFAC or by any other governmental entity, or (b) located in, a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade or economic sanctions or embargoes or that has been designated by the U.S. Government as a “terrorist supporting” region.
17. General Provisions
17.1 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
17.2 Notification Procedures and Changes to these Terms. We may provide notifications to you via email notice or through posting of such notice on the Service, as we determine in our sole discretion. We may modify or update these Terms from time to time, and you should review this page periodically. These Terms apply to and govern your access to and use of the Service effective as of the start of your access to the Service, even if such access began before publication of these Terms. Your continued use of the Service after any change to these Terms constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or to any future Terms of Service, do not access or use (or continue to access or use) the Service.
17.3 Entire Agreement; Severability. These Terms, together with any amendments and any additional agreements you may enter into with us in connection with the Service, will constitute the entire agreement between you and us concerning the Service. Except as otherwise stated in the Arbitration Agreement, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.
17.4 Survival. Any provision of these Terms that by its nature should survive termination or expiration of these Terms will survive, including, without limitation, the provisions addressing User Content, Intellectual Property, Confidential Information, Privacy; Data Security (including Section 7.3, Masking of Your Business Information), Release, Indemnity, No Warranty; Disclaimers, Limitation of Liability, and Governing Law, Arbitration, and Class Action/Jury Trial Waiver. Without limiting the foregoing, our ownership of, and license and rights to use, User Content and Usage Data collected prior to termination or expiration will continue notwithstanding any termination or expiration of these Terms or deactivation of your User Account.
17.5 No Waiver. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or of any other term, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
17.6 California Residents. The provider of the Service is MFMsoft, LLC, [21255 Burbank Blvd, Suite 120, Woodland Hills, CA 91367]. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 1625 North Market Blvd., Suite N 112 , Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
17.7 Contact. If you have any questions about these Terms and/or the Service, please contact us at [email protected].