Terms of Sale
Date of Last Update March, 10th 2017
These terms of sale (the “Terms”) apply to all orders accepted by Authentic Restaurant Concepts, Inc. (“ARC”) for the sale of its software products and other ARC services (the “Products”), except in the case that you and ARC have executed a written agreement that supersedes these Terms. To the extent the Products contain or consist of software in any form (“Product Software”), such Product Software is licensed to you, not sold, and only in accordance with the section below entitled “Software License” and the ARC Product Software License Agreement. Terms such as “sell” and “purchase,” as used in these Terms, apply only to the extent the Products consist of items other than Product Software.
By placing an order with ARC, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed and applicable taxes.
ARC can withdraw Products at any time and for any reason. Prices listed are stated in U.S. dollars, and do not include any handling charges or applicable taxes. All handling charges and taxes will be communicated to you before you place an order and you are responsible for paying such charges and taxes to ARC. You agree to indemnify and hold ARC harmless from and against any liabilities, interest, penalties or fees assessed against ARC arising from your failure to pay any such taxes and charges. All Product prices are subject to change at any time, in our sole discretion.
Acceptance and Fulfillment
All orders are subject to acceptance by ARC. ARC, in its sole discretion, reserves the right not to accept your order for any reason or no reason.
Purchases are intended for end users only, and are not authorized for resale.
Purchases are intended for end users only, and are not authorized for duplication, re-distribution or use for anything other than your personal use.
From time to time or anytime, ARC, in its sole discretion, will offer one or more special promotional items. Due to limited availability, these items are only available while supplies last.
You acknowledge that you have verified the compatibility of the Products with other required equipment (e.g., ensuring that your computers, mobile devices and/or operating systems are compatible with the Product). You are solely responsible for determining the compatibility of the Products with other equipment.
Limitations on Liability
IN NO EVENT WILL ARC BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT ARC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ARC AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ARC’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS AND PURCHASE OF PRODUCTS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO ARC BY YOU FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
The ARC Product Software is licensed to you, not sold, and only in accordance with the ARC Product Software License Agreement. ARC grants to you a non-exclusive, non-transferable and non-sublicensable license to use the Product Software, in executable form. You may not copy or modify the Product Software. You acknowledge and agree that the Product Software contains trade secrets and copyrighted materials of ARC, and, in order to protect such trade secrets and copyrights, you agree not to disassemble, decompile or reverse engineer the Product Software nor permit any third party to do so. You further acknowledge and agree that you will not copy, adapt, modify, prepare derivative works based upon, reverse engineer, distribute, license, sell or transfer the Product Software. ARC reserves all rights and licenses in and to the Product Software not expressly granted to you under these Terms or the ARC Product Software License Agreement.
By using your Product you are agreeing to be bound by the ARC Product Software License Agreement. You can read or download a full copy of the ARC Product Software License Agreement at http://therestaurantboss.com/legal-stuff. If any of these Terms conflict with the terms of the ARC Product Software License Agreement, the ARC Software License Agreement will govern.
Governing Law: These Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without the need of a formal legal case. Before filing a claim against ARC, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We will try to resolve the Dispute informally by contacting you. If a dispute is not resolved within 30 days after submission, you or ARC may bring a formal proceeding.
We Both Agree To Arbitrate: You and ARC agree to resolve any Disputes through final and binding arbitration, except as set forth under Opt-out of Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Santa Barbara County, California, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate: Either you or ARC may assert claims, if they qualify, in small claims court in Santa Barbara County, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Products, ARC services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with ARC on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement and these Terms.
Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to you or your claim, you and ARC agree that any judicial proceeding will be brought in the federal or state courts of Santa Barbara County, California. Both you and ARC consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your purchase, license and use of the Products or ARC services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by ARC hereunder, in whole or in part, by operation of law or otherwise, without ARC’s express prior written consent. Any attempt to do so, without ARC’s consent, will be null and of no effect. ARC may freely assign these Terms.
ARC will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
The failure by ARC to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between ARC and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service; and (iv) upon receipt if sent via email. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.