Terms Of Service Agreement

OVERVIEW 
These terms and conditions, together with the onboarding form, constitute the services agreement between the Merchant (“User”) and MFMsoft. MFMsoft, LLC supports the software services included in this agreement, “referred to as MFM”. MFM offers Mobi software technology solutions, including all information, tools, and services available to the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated in this agreement. The parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:

SECTION 1 – DEFINITIONS 

1. “We,” “Us,” and “Our” means MFMsoft, LLC, MFM, and Mobi.
2. “Merchant,” “You,” “Your,” and “User” means the entity using the MFM technology or receiving the Offerings.
3. “Offerings”, "Service”. “Technology” means services or technology features MFM provides to the Merchant under this agreement, including access to and use of the Software.
4. “Order Data,” “Order Information,” means all Company Product transactional information submitted by customers using TOOS to order from your cloud, web-based, digital menu, and operation systems such as POS, ERP, ONLINE MENUS, etc.
5. “Company” is the brand owner of the products that Merchant sells to customers.
6. “Company Product” is the brands or products Merchant sells or displays on their TOOS.
7. “Software” and “MFM Software” refer to the Mobi digital menu and system optimization software that MFMsoft provides to facilitate automation, including all Company Product captured data, digital product injection, creating digital bundles/combinations, injecting products for upsell presence, Company Product sales data collection, enabling products to serve as featured items on your menus and much more.
8. “TOOS” and “Site” means any of your digital, cloud, web-based menus and systems (third-party or proprietary), any third-party online ordering software, and related technology services that allow individuals or customers to place orders with the Merchant in-person or online.
9. “Customer” and “Individual” means any individual or entity that completes a purchase from any of your Site or TOOS systems purchasing Company Trademark brands.
10. “Company Trademark,” “Company Brand,” and “Company Assets” refer to any brand images, name, description, nutritional facts, etc., owned by The Company that the Merchant is selling.
11. “Terms of Service” and “Terms” means the following terms and conditions and policies referenced herein and/or available by.
12. “Company” means any entity that has an agreement with MFM to use the Mobi system to help connect their products and with Merchant TOOS and Site seamlessly so that Merchant can have the authorization to use the Company Trademarks and Copyrights and in return, the entity can capture their products sales data.

SECTION 2 – OFFERINGS: 

1. For the term of this Terms of Services agreement, and subject to the Merchant’s compliance with all its obligations, MFM will provide the Offerings to the Merchant.
2. MFM provides the Offerings solely and exclusively for the Merchant’s use and access directly related to its business and confined solely to its TOOS within its place of business. Merchant represents that it is not engaged in, and will not engage in, the operation of any illegal business and will not use or permit anyone else to use the Offerings for any illegal purpose. Merchant shall make no use of the Offerings except in compliance with the terms of this agreement.
3. The merchant is solely responsible for obtaining all required authorizations from TOOS or Site for data received through the Offerings that require TOOS or Site authorization. To do so, on the Mobi Company Digital System Link Form, which is used to link the Merchant Digital Systems to Mobi for Company products, the Merchant will need to enter directly with each TOOS or Site their login and password for that TOOS or Site. By doing so, the Merchant will authorize and initiate for the Company to access sales data on all Company Products and Products sold with Company Products to Merchant customers through the TOOS or Site. And, if needed, inject Company Product images, names, etc., into Merchant TOOS or Sites.
4. By agreeing to these Terms of Service, you represent at least the age of majority in your state or province of residence or the age of majority in your state or province of residence.
5. When your customers visit any Site or TOOS, we automatically collect Company Product transactional information and other product data sold with Company Products by Merchant to customers ONLY. We do NOT collect any consumer personal information. We do NOT collect Personally Identifiable Information (PII) from Merchant customers. This includes any information that permits an individual’s identity to be directly or indirectly inferred, including any information linked or linkable to that individual. We only collect Company Products, products sold with Company Products, and other product purchasing data, including product purchases, special items purchases, and the time of purchase. Collecting Order Information or Order Data will help the Company optimize and support Merchant On-Premise and Off-Premise digital and online sales across all Merchant TOOS and Sites.
6. When Merchant customers make a purchase or attempt to purchase the TOOS or Sites, we do NOT have access to or collect any information from Merchant customers, including their name, billing address, shipping address, or payment information (including credit card numbers, email address, and phone number). We refer to this information as “Order Information”.
7. To provide you the authorization to use the Company’s Product Trademarks and the protection to use the Company’s product assets such as, but not limited to, the images, names, descriptions, nutritional facts, etc., within your TOOS or Sites, when you link your digital systems, cloud, or web-based systems (including online menus, POS, ERP, etc.) to Company Mobi registration form, you get authorization to use Company assets.
8. To provide you with our Offerings and maintain and monitor the compliance required to protect the Company’s product assets across your TOOS or Sites, you represent that you are authorizing our MFM Software to use Artificial Intelligence if needed to add a default “MFMsoft” email address to your accounts.
9. Using our Offerings, the Company provides you the right to use their trademarks only through the digital systems, TOOS, and Sites linked to your MFM system. By doing so, you represent that you provide us with the authority to always be able to manage and monitor the Company’s product assets, including but not limited to the images, descriptions, nutritional facts, etc. Through this right and authority that you provide us with, you allow us to override any of the Company’s product information at any time on any of the Sites linked to our MFM Software Mobi because the Company owns the assets of the Company. The Company has the right to optimize its brand presence, including trademarks, products, and any asset information displayed through Mobi across your Sites.
10. The MFM Software does not use “cookie technology” to provide you with the Offerings.
11. We reserve the right to limit the quantities of any Company products or services offered. All descriptions of Company products are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Company product at any time.
12. The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Offerings and the use and restrictions of these Offerings.

SECTION 3 – INTELLECTUAL PROPERTY 

1. MFM Ownership Rights. Merchant acknowledges and agrees that, as between Merchant and MFM, MFM exclusively owns all rights, title, and interest in, to, and related to the Mobi Software and the Offerings, as such may be modified, upgraded, and/or enhanced from time to time, including, without limitation, all ownership and intellectual property rights therein resulting from or relating to performance of the Offerings, including, patents, copyrights, trademarks, trade secrets, rights of publicity, rights of privacy, sui generis database rights, moral rights, and other intellectual property or proprietary rights anywhere in the world. Merchant further acknowledges and agrees that as between Merchant and MFM, the Mobi Software and the Offerings shall remain MFM’s sole and exclusive property. MFM expressly reserves all other rights in and to the Mobi Offerings.
2. Data. Merchant hereby acknowledges and agrees that MFM may gather and compile Merchant Order Data utilizing the Mobi Software or Offerings and may use such Merchant Order Data for any lawful purpose, including disclosure to third parties. Merchant hereby consents to such gathering, compilation, and disclosure.

SECTION 4 – FEES AND PAYMENT TERMS 

1. Fees. For its services, the Merchant agrees that the Company offering the MFM Mobi Software to the Merchant has an active software licensing agreement with MFM to license the Mobi Software being used to link and automate the Company Product injection and data gathering from Merchant systems, TOOS, and Sites. Mobi technology solution is FREE to the Merchant, where the Company pays all fees. Under this agreement, the Merchant will NOT be obligated to pay for the Offerings as the financial obligation is the sole responsibility of the Company licensing the MFM Software.

SECTION 5 – GENERAL  

1. Modification of Service. MFM reserves the right at any time to modify or discontinue the Service (or any part or content thereof) without notice. We shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Service or any Offerings.
2. Governing Law: This agreement will be governed in all respects by the laws of the State of Nevada.
3. Optional Tools. We may provide you access to third-party tools we neither monitor nor have any control or input. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of the optional tools offered through the Site is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). We may also offer new services and/or features through the Software (including the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
4. Third-Party Links. Certain content, products, and services available via our Service may include third-party materials. Third-party links may direct you to the Sites which are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant it. We will not have any liability or responsibility for any third-party materials or software or any other materials, products, or services of third parties. We are not liable for any harm or damages related to purchasing or using goods, services, resources, content, or other transactions connected with any third-party software between you and your customers. Please review the third-party's policies and practices carefully and ensure you understand them before engaging in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
5. Third-Party Implementation. When you, as the Merchant, link your Sites to the MFM Software through the Company’s MFM digital registration, our automation will be immediately triggered to create the connection for product injection and product data purposes, in other words, for the Company’s products to be injected on every Site you link to the MFM Software. It is important to understand that the Sites linked to the MFM Software are operated by third-party systems, not by MFM. To ensure a proper connection to your Sites and to complete the Company’s product injection, Trademark compliance, and sales data integrations, MFM reserves the right to take up to 30 days or more from completing your Company MFM digital registration to complete this function. This up-to-30-day delay is based on the rules that the Sites have set based on their sole discretion and is not under the control of MFM or our automation.
6. Notices. Whenever any ordinary day-to-day communication shall be given by one party to the other, such communication shall be delivered to Merchant by MFM sending an email to the email address provided by Merchant for the delivery of notices as set forth herein and to MFM by Merchant sending an email to [email protected], or by sending an email to such other email address as either party may specify in a notice given hereunder. Notice shall be deemed given on the day of delivery. For the notice to be effective, the subject line of each email notice provided hereunder must state in bold letters: NOTICE UNDER MFM SERVICES AGREEMENT. All notices other than in connection with ordinary day-to-day communication shall be delivered to the mailing address or email address provided as either party may specify in a notice given hereunder.
7. Severability. Suppose a court of competent jurisdiction declares any provision of this agreement invalid, unlawful, or unenforceable as drafted. In that case, the parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be amended and construed, it shall be severed, and the remaining provisions shall remain unimpaired and in full force and effect to the fullest extent permitted by law.
8. Personal Information. You govern the submission of your customers' personal information. All customer personal information belongs entirely to you. We will only use the Company product sales data to provide you with advancement to your ordering process, enhancing your interactions with your customers, help analyze their buying behavior to enhance their usage experience, track their purchasing tendencies to eventually use AI to maximize their purchase opportunity and minimize their time spent, and much more.
9. Errors, Inaccuracies, and Omissions. Occasionally, information on our software or in the Service may contain typographical errors, inaccuracies, or omissions related to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information in the Service or on any related software is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend, or clarify information in the Service or on any related software, including, without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or related software should be taken to indicate that all information in the Service or related software has been modified or updated.
10. Prohibited Uses. In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Offering or the MFM Software: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related software, other software, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related software, other software, or the Internet. We reserve the right to terminate your use of the Service or any related software for violating prohibited uses.
11. Disclaimer of Warranties, Limitation of Liability. We do not guarantee, represent, or warrant that your use of our service will be uninterrupted, timely, secure, or error-free. We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable. You agree that from time to time, we may remove the service for indefinite periods of time or cancel the service at any time without notice to you. You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided “as is” and “as available” for your use without any representation, warranties, or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement. In no case shall your website, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers, or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
12. Entire Agreement. This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other agreements, proposals, negotiations, representations, or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this agreement by any representations or promises not specifically stated in this agreement. Any ambiguities in interpreting these Terms of Service shall not be construed against the drafting party. The protections of this agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this agreement. MFM may amend this Agreement by posting a revised version of this agreement online, and the Merchant’s continued use of the Offerings following such date will constitute the Merchant’s acceptance of such amendments.
13. Changes to The Agreement. You can review the most current version of the Terms of Service anytime. At our sole discretion, we reserve the right to update, change, or replace any part of this Terms of Service agreement by posting updates and changes to our software. It is your responsibility to check our software periodically for changes. Your continued use of or access to our software or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
14. Service Level Agreements (SLAs). At MFMSoft, we are committed to delivering high-quality services to our customers through our product, Mobi. To formalize our commitment and define the quality of service customers can expect, we have established service level agreements (SLAs) within our terms of service. Our SLAs specify the following:
    1. Performance Metrics: We guarantee specific performance metrics, such as system availability, response times, and data processing speeds, to ensure a reliable and responsive service.
    2. Uptime Guarantees: We commit to maintaining a certain level of uptime for our platform, ensuring uninterrupted access to our services for our customers.
    3. Response Times for Support Inquiries: We outline the expected response times for customer support inquiries, ensuring timely assistance and issue resolution.
    4. Compensation or Remedies: In the event of service disruptions or failures that violate our SLAs, since MFMsoft services are FREE to the Merchant, we provide no compensation or remedies to the affected Merchant, such as service credits or refunds.
    These SLAs reflect our dedication to delivering a superior user experience and maintaining the highest service quality standards for our customers.
15. Data Ownership and Usage Rights. At MFMSoft, we respect merchants' data privacy and ownership rights. We understand merchants retain ownership of their data and the associated intellectual property rights. Therefore, we ensure transparency and clarity regarding data ownership and usage rights within our terms of service. Our terms specify the following:
    1. Customer Data Ownership: Customers retain full ownership of the data they upload or transmit through the Mobi platform. We do not claim any ownership rights over customer data.
    2. Usage Rights Granted to the Company: While customers maintain ownership of their data, they grant us the necessary rights to use their data to provide services, improve products, improve consumer use, analytics, data-driven marketing, improve merchant support, enhance channel visibility, and ensure compliance with legal obligations. These rights are limited to the extent required to fulfill our obligations under the terms of service.
    By clarifying data ownership and usage rights, we aim to build trust and confidence among our customers and demonstrate our commitment to protecting their data privacy.
16. User Responsibilities and Prohibited Activities. As users of the Mobi platform, merchants are required to adhere to certain responsibilities and conduct themselves in accordance with our terms of service. We outline user responsibilities and prohibit certain activities within our terms to ensure a safe and secure user environment. Our terms specify the following:
    1. User Responsibilities: Customers are responsible for complying with all applicable laws, regulations, and the terms of service while using the Mobi platform. This includes safeguarding their account credentials, respecting the rights of other users, and using the platform in a lawful and ethical manner.
    2. Prohibited Activities: We strictly prohibit unauthorized use of the Mobi platform, including hacking, unauthorized access, distribution of malware, infringement of third-party intellectual property rights, and any other activities that violate our terms or applicable laws. Violation of these terms may result in account suspension or termination.
    By outlining user responsibilities and prohibited activities, we aim to promote a positive and secure user experience for all customers and maintain the integrity of our platform.
17. Indemnification and Limitation of Liability. In our terms of service, we include provisions regarding indemnification and limitation of liability to clarify each party's responsibilities and liabilities. Our terms specify the following:
    1. Indemnification: Each party agrees to indemnify and hold harmless the other party from any liabilities, damages, or losses arising from breaches of the terms of service or applicable laws. This includes legal fees and expenses incurred in defending against such claims.
    2. Limitation of Liability: While we strive to deliver reliable and secure services, we limit our liability to the extent permitted by law. We specify exclusions of liability for certain types of damages or losses, including indirect, incidental, or consequential damages.
    These provisions help mitigate risks and clarify each party's rights and responsibilities under the terms of service.