MERCHANT MEMBER TERMS OF USE

All Merchant Memberships are subject to the following terms, which shall govern any Merchant Membership Agreement. Although these Merchant Member Terms of Use shall remain available for your review, it is recommended that you print these Merchant Member Terms of Use and review them fully before you agree to these Merchant Member Terms of Use. The use of the phrase “Merchant Member Terms of Use” herein is also intended to include within its scope any Merchant Membership Agreement entered into between the Parties.

These Merchant Member Terms of Use are between Cybervation, Inc, an Ohio Company d/b/a BistroUX and/or BistroUX.com, having an address of 4150 Tuller Road, Suite 204, OH 43017, and our affiliated businesses (“BistroUX,” “We,” or “Us”) and the Merchant that is creating a Merchant Account with BistroUX, a representative of which will digitally sign these Merchant Member Terms of Use (“You,” or “Merchant;” and collectively with BistroUX, the “Parties”).

Whereas, We own and operate the “BistroUX System,” which is designed to provide some or all of following features based on the Membership Package you have subscribed:

  • Reservations
  • Carry Out Orders
  • Gift Cards
  • E-Commerce Product Store
  • Event Calendar
  • Website Hosting
  • Digital Marketing
  • Search Engine Optimization

Whereas, You operate a business that would benefit from participating in the BistroUX System, and are either a prospective Merchant Member or a current Merchant Member in the BistroUX System.

Now, therefore, in mutual consideration, the Parties agree to the following “Merchant Membership Terms of Use:”

Levels of Merchant Membership

The various components of the BistroUX System are available only to certain levels of membership which are defined elsewhere. All of the available components are described within these Merchant Member Terms of Use. The inclusion in these Merchant Member Terms of Use of a description of any component of the BistroUX System has no bearing on the availability of that component to a particular Merchant Member; such availability is determined solely by the Merchant Membership Agreement.

Membership Dues

Certain levels of Merchant Membership require dues payments to Us. The default method of payment is to authorize us to charge your credit/debit card monthly; if You choose to authorize monthly payments, You will be charged a “setup fee” that will be disclosed on the authorization for monthly payments. The alternate method of payment is to pay a full year in advance by check or credit/debit card; if you pay a full year in advance, you will not be charged a “setup fee” and you may receive additional discounts.

Online Merchant Account; Merchant Member Dashboard

Online Merchant Account Required. You will be required to create an “Online Merchant Account” with BistroUX.

Uses of the Online Merchant Account. The Online Merchant Account may be used for various purposes, including updating certain account information. The scope of services available in the Online Merchant Account is subject to change and is intended to increase as capabilities are developed. We will generally accept the use of tools on the Online Merchant Account as an effective means of communication of information in furtherance of these Merchant Member Terms of Use. Nonetheless, We encourage You to confirm any changes or updates that You make using your Online Merchant Account to ensure that the information was transmitted successfully. We will not be responsible for information that is not successfully transmitted to Us through the Online Merchant Account through no fault of our own (for example, if your internet connection fails during transmission).

Merchant Member “Dashboard.” The tools of the Merchant Member Dashboard are expected to expand and evolve as improvements are developed and therefore are subject to change by Us. The Dashboard for higher levels of Merchant Membership will provide access to more powerful tools and additional information. You will be provided access to the information and tools commensurate with your level of Merchant Membership.

Online Merchant Account Security. The Online Merchant Account is password-protected. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and You agree to accept responsibility for all activities that occur under your account or password. Although BistroUX will not be liable for your losses caused by unauthorized use of your account, You may be liable for the losses of BistroUX or others due to such unauthorized use. You shall immediately notify Us of any unauthorized use of your account.

Web Site “Terms of Use.” These Merchant Membership Terms of Use expressly incorporate the “Terms of Use” published on our web site, BistroUX.com. The Terms of Use published on our web site are updated regularly and You agree to those Terms of Use as they are updated and further agree that if You believe that any update of the Terms of Use on the web site materially changes these Merchant Member Terms of Use in a way to which You object, that You will promptly (within 30 days of the update appearing on our web site) provide us written notice of your objection to the update. Such notice shall include, at a minimum: a specific reference to the change to which You object, which shall include a quotation of the specific language that has been changed; a specific statement as to why You find the change objectionable; and a specific request that the objectionable change shall not become part of these Merchant Member Terms of Use. If We do not receive such notice within the time prescribed, the updated “Terms of Use” shall be binding and enforceable as if originally set forth herein.

Consumer Members of the BistroUX System

Policy of One Membership per Individual. Consumer participation in certain components of the BistroUX System are only available to Consumer Members of the BistroUX System. Although it is the policy of BistroUX that a single living human being shall only have one Consumer Membership within the BistroUX System, we cannot guarantee that there are no persons who may wrongfully create multiple Consumer Member accounts within the BistroUX System. We take commercially reasonable measures to prevent such multiple Membership Accounts, measures which may include freezing, terminating, or otherwise locking accounts that are in violation of the Terms of Use. We encourage anyone who notices or suspects that a person has created multiple BistroUX Consumer Member accounts to report their suspicion to Us immediately. You acknowledge that if You refuse service to a BistroUX Consumer Member based on your suspicion of improper conduct that You do so at your own risk and that such refusal, if determined to be improper, may constitute a violation of these Merchant Member Terms of Use.

Ethical Use of Consumer Membership Account Information. One of the unique values of the BistroUX System to Merchant Members is the ability to track the identities and personally identifiable information of Consumer Members who buy products or services through the BistroUX system. Through the BistroUX System, you may receive personal information related to your customers who are Consumer Members in the BistroUX System (“Consumer Membership Account Information”). The amount and type of information you receive will vary based on your level of Merchant Membership. We want the Consumer Membership Account Information to be valuable and useful to You, and We want to be sure that the Consumer Membership Account Information provided by Us is being used ethically. In the hope of furthering these goals, You agree to the following restrictions: You may use Consumer Membership Account Information for your own internal use only. You may not sell Consumer Membership Account Information. You may not share Consumer Membership Account Information with anyone outside your business except for purposes of your own (and strictly your own) advertising and promotions. You may not use Consumer Membership Account Information for cross-marketing with any other business without our express written consent, even one that has a common ownership or management, and even one that is a Merchant Member in the BistroUX System. You may not use the Consumer Membership Account Information to send “spam” email to any Consumer Members of the BistroUX System. For this purpose, “spam” email is email which does not comply with the restrictions of the federal “CAN-SPAM Act.” Any Merchant Member who uses information received from the BistroUX System in violation of these restrictions may be liable to Us for damage to our reputation and goodwill and will be immediately terminated by Us as a Merchant Member of the BistroUX System. You additionally agree to abide by the “Privacy Policy” as it is published and updated on our web site to the extent the Privacy Policy is more restrictive of your use of Consumer Membership Account Information.

Reliance on Consumer Devices; Acknowledgement and Release. Certain components of the BistroUX System rely upon mobile devices or smartphones owned or used by Consumer Members of the BistroUX System and such devices must have network access at your point of sale. You acknowledge that the mobile devices or smartphones are not owned or controlled by BistroUX and release BistroUX from any liability which may arise due to a failure of a Consumer Member’s device and/or a failure of a Consumer Member’s device to successfully access a network.

Agreement Regarding Gift Certificates

Authorization. You authorize Us to sell Gift Certificates, both printed and digital, through the BistroUX System. You are the issuer of the Gift Certificates and You are responsible for all goods and services provided in exchange for the Gift Certificates. Once purchased, these Gift Certificates are agreements strictly between You and the purchasers of the Gift Certificates. Although the BistroUX System will be used for the sale, promotion, and redemption of the Gift Certificates, You agree to hold harmless and indemnify BistroUX for liability, and additionally You directly assume all liability, that may arise from your actions or failure to act with respect to the Gift Certificates.

Agreement to Honor. You agree to honor Gift Certificates. You agree that Gift Certificates will be eligible to be used for purchases from You in the same way as cash in the amount of the full face value, except to the extent limited by law. You agree that, unless specified, Gift Certificates have no minimum purchase requirement, and You agree that Gift Certificates do not expire. Because Gift Certificates do not expire, You agree to honor Gift Certificates sold prior to the termination of your Merchant Membership even after termination of your Merchant Membership.

Liquidated Damages. In the event We receive allegations of a refusal by You to accept Gift Certificates sold using the BistroUX System, We reserve the right to investigate the allegation, all such investigation charges will have to be borne by You. If our investigation shows that You are refusing to honor Gift Certificates which have been sold by Us pursuant to these Merchant Member Terms of Use, You agree to pay to Us, as liquidated damages for the damage to our reputation and goodwill, the full face value of all outstanding (sold but not yet redeemed) Gift Certificates at the time of your refusal. The payment of these liquidated damages will in no way settle or otherwise dispose of any claims that may be made against You by any of your customers, by users of the BistroUX System, or by purchasers of Gift Certificates. Further, any subsequent use We make of the funds received as liquidated damages shall not constitute a setoff, offset, payment from a collateral source, or partial settlement of any claims between you and anyone other than Us.

BistroUX Consumer Membership Information related to Gift Certificates. When Gift Certificates are sold or redeemed, valuable information which may include BistroUX Consumer Membership Account Information will be made available to You on your BistroUX Merchant Member Dashboard; the amount of information will be based on your level of Merchant Membership in the BistroUX System. Your use of such Consumer Membership Account Information is subject to the terms of these Merchant Member Terms of Use and our Privacy Policy.

Agreement Regarding Digital Coupons

Authorization. You authorize Us to provide Digital Coupons to consumer members of the BistroUX System with the coupon terms you upload into the BistroUX System. You are the issuer of the Digital Coupons and You are responsible for all goods and services provided in exchange for the Digital Coupons. Once published within the BistroUX System, these Digital Coupons are agreements strictly between You and the potential users of the Digital Coupons. Although the BistroUX System will be used for the publication, promotion, and redemption of the Digital Coupons You agree to hold harmless and indemnify BistroUX for liability, and additionally You directly assume all liability, that may arise from your actions or failure to act with respect to the Digital Coupons.

Agreement to Honor. You agree to honor Digital Coupons in the amount and upon the terms that You specify to Us at the time You request the inclusion of your Digital Coupons in the BistroUX System.

Number of Coupons, How Counted. For those Merchant Members who participate in the Digital Coupon program of the BistroUX System, there may be a limit to the number of coupons that may be uploaded per month. For this purpose, every distinct offer shall be counted as a single coupon upload, regardless of any limitation in terms applicable.

BistroUX Consumer Membership Information related to Digital Coupons. When Digital Coupons are redeemed, valuable information which may include BistroUX Consumer Membership Account Information will be made available to You on your BistroUX Merchant Member Dashboard; the amount of information will be based on your level of Merchant Membership in the BistroUX System. Your use of such Consumer Membership Account Information is subject to these Merchant Member Terms of Use.

Intellectual Property

Use of Brand, Logo, TradeMark, Trade Dress, etc. As with any public presence, it is important that your presence in the BistroUX System is consistent with your other advertising. In order to maximize the exposure and consistency of your brand and brand presence, You agree to permit Us the use of your logo, your brand names, if any, your trademarks, trade dress, and any other images or words that denote your identity in the marketplace (“Your Intellectual Property”). You authorize our use of Your Intellectual Property in the BistroUX System components in which You participate, and for promotion of the BistroUX System. You may provide Us with an electronic copy of your logo and related artwork if You wish; otherwise, You authorize Us to retrieve your logo and related artwork from any publicly available source.

Shared Copyright in Certain Materials. During your participation in the BistroUX System, certain advertising materials may be produced either by You for use in the BistroUX System, by Us for use in the BistroUX System, or by You and Us jointly. It is agreed that, subject to our reservation of rights below, You and We will have shared, mutual rights in copyright for such materials. Under this shared copyright, We will have the rights described above with respect to Your Intellectual Property and You will have the right to use the portions of such materials solely related to Your Intellectual Property.

Retained Rights, Limited License to Display BistroUX.com Logo. We retain the exclusive right to the name “BistroUX” alone or in any context (e.g., “BistroUX System,” “BistroUX.com,” etc.) and the exclusive right to the BistroUX.com logo and related or derivative artwork. We additionally retain the exclusive right to the trade dress of each of the components of the BistroUX System and the BistroUX Mobile App. You may include in advertising materials a plain statement that you are a “Participating BistroUX Merchant” and You may include a small BistroUX.com logo with such statement. Any other use of our Intellectual Property is prohibited without an additional written agreement from Us. The limited license in this paragraph terminates immediately upon the termination of your Merchant Membership in the BistroUX System and will not survive such termination for any reason whatsoever.

Trade Secrets. In the course of participating as a Merchant Member of the BistroUX System, You may learn certain nonpublic information about the way that BistroUX delivers value to Merchants and Consumers using the BistroUX System. Nonpublic information for this purpose is defined as (1) any information relating to or included in the BistroUX System that is not published by Us on the portions of the BistroUX.com web site available prior to initiating efforts to create a BistroUX Merchant Account or BistroUX Consumer Account, (2) the BistroUX Dashboard and all of its contents, (3) all information relating to the Online Merchant Account, (4) individual, aggregated, or compiled BistroUX Consumer Membership Account Information, (5) the contents of these Merchant Member Terms of Use, and (6) the use of the various components of the BistroUX System individually, or in any combination or permutation of a subset of the components or a combination of all of the components to create value. You understand that such nonpublic information, individually or combined, may constitute a trade secret or trade secrets belonging solely to BistroUX and that improper sharing of the same may result in substantial liability to You. Your knowledge of such nonpublic information is a necessary consequence of your participation in the BistroUX System and You agree not to share or otherwise misappropriate such information for the benefit of anyone except for Us. An example of proper sharing of such nonpublic information would be to state generally that valuable nonpublic aspects to Merchant Membership in the BistroUX System exist and to state specific benefits that have accrued to You because of the value of the nonpublic aspects of the BistroUX System, without describing the methods used by Us or the tools made available by Us (e.g., “I have been able to learn that many of my customers visit my store weekly” or “I have had hundreds of dollars of additional revenue through directed marketing and promotion through the BistroUX System”). Examples of improper sharing of such nonpublic information that may result in liability to You would be to show any person the BistroUX Dashboard, the Online Merchant Account screens, or these Merchant Member Terms of Use; or to describe the features of the same to a competitor or potential competitor of BistroUX. In addition, You agree to not copy or otherwise adapt any part of the BistroUX System for your own independent use and acknowledge your understanding that to do so may constitute misappropriation of Trade Secrets.

Acknowledgment Regarding Legal and Regulatory Compliance

You acknowledge that You are the more knowledgeable of the Parties regarding any limitations imposed upon You by law related to your business’ ability to issue or accept gift certificates and/or coupons. You acknowledge that neither BistroUX nor any of its affiliates provided You with advice regarding any such legal or regulatory limitations. You accept full responsibility for your compliance with any applicable laws and regulations regarding the use of gift certificates and/or coupons (to include, for example, any sales tax or liquor laws that may be applicable). You further acknowledge that, in the event that your acceptance of gift certificates and/or coupons results in your noncompliance with any laws or regulation, neither BistroUX nor any of its affiliates coerced or otherwise improperly induced You into such noncompliance and that You have voluntarily retained the full risk of any consequences therefrom.

Termination of Merchant Membership in the BistroUX System

Termination of Unpaid Merchant Membership by You. You may terminate your Unpaid Merchant Membership at any time with 30 days’ notice to Us. Within a commercially reasonable time after receipt and confirmation of your notice of termination, We will remove You from all electronic media in the BistroUX System. Even after any termination of your Merchant Membership, You will remain obligated to your agreements herein: to accept Gift Certificates that are sold prior to the effective termination of your Merchant Membership. In the event of termination by You, We will provide You with a list of all outstanding Gift Certificates which will include sufficient information (e.g., email addresses) for You to identify the purchasers. Those purchasers of outstanding Gift Certificates will be advised by Us of your termination and will be referred to You for settlement of such outstanding Gift Certificates; we will, however, continue to permit redemption of Gift Certificates until notified by you. You agree to notify Us if you wish us to stop permitting the redemption of Gift Certificates and assume all liability for our compliance therewith.

Termination of Basic Merchant Membership by Us. We may terminate your Merchant Membership at any time and for any reason, with no advance notice to You. Even after any termination of your Merchant Membership, You will remain obligated to your agreements herein: to accept Gift Certificates that are sold prior to the effective termination of your Merchant Membership. At the time of termination, we may, in our sole and absolute discretion, issue paper or card-based certificates to replace Digital Gift Certificates, which You agree to honor. If We request it, You may provide Us with certificates or cards for such purpose. Regardless, You agree to accept the form of certificates We choose. In the event We decide to issue paper replacement certificates, We will provide You with a list of all outstanding Gift Certificates which will include sufficient information (e.g., email addresses) for You to identify the bona fide purchasers.

Termination of Paid Merchant Membership by You. You may terminate your Paid Merchant Membership at any time with 30 days’ notice to Us. The payment of membership dues, if any, due within that 30 day period shall become due and payable in the regular course. Within a commercially reasonable time after receipt and confirmation of your notice of termination, We will remove You from all electronic media in the BistroUX System. You will not receive a refund for any payments you have made to us unless agreed to separately by Us at the time of termination. Even after any termination of your Merchant Membership, You will remain obligated to your agreements herein: to offer all services sold prior to the effective termination of your Merchant Membership. In the event of termination by You, We will provide You with a list of all outstanding Gift Certificates which will include sufficient information (e.g., email addresses) for You to identify the purchasers. Those purchasers of Gift Certificates will be advised by Us of your termination and will be referred to You for settlement of such outstanding Gift Certificates; we will, however, continue to permit redemption of Gift Certificates until notified by you. You agree to notify Us if you wish us to stop permitting the redemption of Gift Certificates and assume all liability for our compliance therewith.

Termination of Paid Merchant Membership by Us. We may terminate your Merchant Membership at any time and for any reason, with no advance notice to You. We will not process any further automatic payments if we terminate your Paid Merchant Membership. We will send a final monthly summary. You will not receive any refund of payments made unless agreed separately by Us at the time of termination. Even after any termination of your Merchant Membership, You will remain obligated to your agreements herein: to accept Gift Certificates that are sold prior to the effective termination of your Merchant Membership. At the time of termination, we may, in our sole and absolute discretion, issue paper or card-based certificates to replace Digital Gift Certificates, which You agree to honor. If We request it, You may provide Us with certificates or cards for such purpose. Regardless, You agree to accept the form of certificates We choose. In the event We decide to issue paper replacement certificates, We will provide You with a list of all outstanding Gift Certificates which will include sufficient information (e.g., email addresses) for You to identify the bona fide purchasers.

Communication in Furtherance of these Merchant Member Terms of Use and any Merchant Membership Agreement.

These Merchant Member Terms of Use and any Merchant Membership Agreement are the entire agreement between the Parties and supersede any prior written or oral communications or agreements. These Merchant Member Terms of Use and any Merchant Membership Agreement may only be modified as stated herein. While You are a Merchant Member in the BistroUX System, You will communicate with Us regarding activities within the BistroUX System. Such communications would include any use of the Online Merchant Account and Dashboard tools and would also include, for example, authorizations and requests for specific coupons or specific artwork to be used in the BistroUX System. Any such communication shall be subject to, and shall be interpreted to be supplemental to and in furtherance of, these Merchant Member Terms of Use and any Merchant Membership Agreement. Such communications shall likewise not replace or otherwise modify any terms of these Merchant Member Terms of Use and any Merchant Membership Agreement without written evidence of a specific mutual intent to do so, which evidence shall include, at a minimum, a specific reference to these Merchant Member Terms of Use and any Merchant Membership Agreement.

Authority to Accept these Merchant Member Terms of Use

The person agreeing to these Merchant Member Terms of Use hereby represents to Us that that person has appropriate authority to enter into each and every term of these Merchant Member Terms of Use on your behalf; We reasonably believe the claim of appropriate authority. If the undersigned does not in fact have authority, the responsibility rests with You or the person making such a representation because We are reasonably relying on assurances of authority and an objectively reasonable appearance of actual authority. The person agreeing to these Merchant Member Terms of Use agrees to indemnify Us and hold Us harmless in the event that such authority does not in fact exist.

Binding on Your Successors-in-Interest

The Parties agree that in the event You sell, assign, or otherwise transfer ownership of the business, or of substantially all of the assets of the business, that is to be promoted by the BistroUX System in accordance with these Merchant Member Terms of Use and any Merchant Membership Agreement, that there will be notification to such purchaser, assignee, and/or transferee of the relationship between the Parties hereto, and the terms of any such transfer, assignation, or sale shall include an agreement with such purchaser, assignee, and/or transferee that these Merchant Member Terms of Use and any Merchant Membership Agreement shall be in force with such purchaser, assignee, and/or transferee as if entered into originally with such purchaser, assignee, and/or transferee. In the event that a purchaser, assignee, and/or transferee refuses to honor these Merchant Membership Terms of Use and any Merchant Membership Agreement, in addition to any claims against the purchaser, assignee and/or transferee, there shall be a claim against the person who sells, assigns, or otherwise transfers the business, or substantially all of the assets of the business, for such refusal if there was not an agreement to honor these Merchant Member Terms of Use and any Merchant Membership Agreement incorporated in the sale, assignation, or transfer as required herein.

Choice of Law; Severability; Venue; Attorneys’ Fees

These Merchant Member Terms of Use and any Merchant Membership Agreement shall be controlled by the laws of the State of Ohio and the Parties agree that the Courts of Franklin County, Ohio shall be the appropriate and sole state court venue for disputes arising hereunder. Should any portion of these Merchant Member Terms of Use be determined by a court of competent jurisdiction to be unenforceable as written, the court is requested to sever the offending portion and enforce as much of these Merchant Member Terms of Use as possible. In the event that these Merchant Member Terms of Use are used by Us as a successful defense to a lawsuit in which You are, or are made, a party, You shall be required to pay reasonable attorneys’ fees for such successful defense. In the event that these Merchant Member Terms of Use are used by Us to change the venue of a lawsuit which You initiated, You shall be required to pay reasonable attorneys’ fees and costs for the change of venue.

Headings; Sections

The headings in these Merchant Member Terms of Use are intended for convenience of reference only and in no way limit the application of the content of any portion of these Merchant Member Terms of Use.

Third Party Beneficiaries

Nothing in these Merchant Member Terms of Use is intended to, or should be construed to, create a third-party beneficiary. The terms herein are for use strictly between the Parties hereto; with respect to Consumer Members of the BistroUX System, these Merchant Member Terms of Use may be used as a basis for a joinder of You as a defendant and/or a dismissal of Us as a defendant.

Mutuality of Agreement

Both of the Parties have read and understand these Merchant Member Terms of Use and every one of its terms. Both of the Parties freely enter into these Merchant Member Terms of Use. The Parties agree that they shall be considered equally sophisticated businesses and/or merchants in applying or interpreting these Merchant Member Terms of Use. There shall be no presumptions or inferences based on authorship of these Merchant Member Terms of Use.

Updates to these Merchant Member Terms of Use

We may update these Merchant Member Terms of Use from time to time. Any such update shall only become effective between the Parties upon approval of the same by You. Nonetheless, a refusal to approve an update to these Merchant Member Terms of Use may result in our termination of your Basic or paid Merchant Membership “by Us.” Although we reserve the right in our sole and absolute discretion to make individual exceptions, in order to maximize the efficiency and value of our services and of the BistroUX System, these Merchant Member Terms of Use are generally intended to apply equally to all Merchant Members.

I agree to these Merchant Member Terms of Use and agree to keep the same confidential; I further acknowledge and agree that these Merchant Member Terms of Use shall be incorporated into and govern any Merchant Membership Agreement.