Kinetic Farm, Inc. (“Kinetic Farm”) provides its Service (as defined below) to you (“you” or “Merchant”) through its mobile applications and its website located at www.orderaheadapp.com (the “Site”), subject to this Terms of Service agreement (“Agreement”).
By accepting this Agreement or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “Merchant” shall refer to such entity and its affiliates.
If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Service.
Kinetic Farm provides its Service (as defined below) to you through its website located at www.orderaheadapp.com (the “Site”), subject to this Agreement. Kinetic Farm may change this Agreement from time to time without prior notice. You can review the most current version of this Agreement at any time at https://www.orderaheadapp.com/terms. The revised terms and conditions will become effective upon posting and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this Agreement is not acceptable to you, your only remedy is to stop accessing and using the Service.
2. Description of Service
The “Service” includes (a) the Site, (b) Kinetic Farm’s order and payment platform and (c) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to the Service are also subject to this Agreement. The Service is designed to provide merchants (“Merchant(s)”) with a platform for managing and tracking the orders for your goods and services (“Orders”) made by users of Kinetic Farm’s mobile applications (“Users”).
3. General Conditions/ Access and Use of the Service
As part of the registration process, you will complete an application and identify an administrative user name and password for your account (“Account”). You agree that Kinetic Farm shall have the right, in our reasonable discretion, to provide Users with the opportunity to place Orders through Kinetic Farm’s Software, Site or any other distribution channel, or by way of any Kinetic Farm partner or otherwise. To the extent generally available using the Services, Kinetic Farm will provide you with access to Order data and statistics.
You shall fully honor and delivery upon all Orders and shall be solely and fully responsible for any and all injuries, illnesses, damages, claims, liabilities, losses and costs suffered by or related to a User concerning any Order or caused in whole or in part you. You will hold harmless Kinetic Farm and its officers, directors, employees and agents from, any claim, liabilities, losses, damages, or injury arising from or related to any Order or any act or omission of you in connection with an Order or the services or goods provided in connection therewith.
Subject to the terms herein, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Kinetic Farm. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise exploit or make the Service available to any third party; (b) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service. You shall comply with any codes of conduct, policies or other notices Kinetic Farm publishes in connection with the Service. You agree not to use the Service if you are a competitor of Kinetic Farm or to develop a competing product or service. .
Any software that may be made available by Kinetic Farm in connection with the Service, such as mobile applications (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. Any rights not expressly granted herein are reserved and, except as expressly permitted through the Service, no license or right to use any trademark of Kinetic Farm or any third party is granted to you in connection with the Service.
You are solely responsible for all menus, profile information, photographs, data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You agree to cooperate with and provide reasonable assistance to Kinetic Farm in promoting and advertising the Services. By posting Your Content on or through the Service, you hereby do and shall grant Kinetic Farm a worldwide, non-exclusive, royalty-free, fully paid sublicensable (through multiple tiers), and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Kinetic Farm reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Kinetic Farm’s website and in other communication with existing or potential Kinetic Farm customers. To decline Kinetic Farm this right, please email firstname.lastname@example.org stating that you do not wish to be used as a reference.
You are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or account. Kinetic Farm reserves the right to access your Account in order to respond to your requests for technical support. Kinetic Farm may (but has no obligation to) provide technical support services, through email or otherwise, in accordance with our standard practice. You agree that you are solely responsible for your interactions with any consumer in connection with the Service and Kinetic Farm will have no liability or responsibility with respect thereto. Kinetic Farm reserves the right, but has no obligation, to become involved in any way with disputes between you and any consumer.
Section 3.7 – Payment to Kinetic Farm
A percentage will be deducted (and retained by Kinetic Farm as a service charge) (the “Fees”) in addition to any payment processing fees, from the amounts paid by Users who make Orders, as described in the Service. We reserve the right to change Kinetic Farm’s prices or Fees. If Kinetic Farm does change Fees, Kinetic Farm will provide notice of the change on the Site or in email to you, at Kinetic Farm’s option. Your continued use of the Service after the Fees change becomes effective constitutes your agreement to the changed amount. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Kinetic Farm’s net income. All amounts paid to or deducted by Kinetic Farm are non-refundable.
Section 3.8 – Merchant Receipts
For amounts collected by Kinetic Farm from Orders made by Users, Kinetic Farm will remit to you the Merchant Payment (defined below) to you, less the Fees and payment processing fees. For purposes hereof, “Merchant Payment” means the gross revenue actually received by Kinetic Farm from Users who purchase Orders, minus any taxes, chargebacks and bad debt. Any Merchant Payment will be paid to you in accordance with the payment information provided to Kinetic Farm by you through the Service, and you are solely responsible for ensuring such information remains accurate and up to date.
4. Representations and Warranties
You represent and warrant to Kinetic Farm that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all rights or licenses required to engage in your activities (and allow Kinetic Farm to perform its obligations) in connection with the Services; and (iii) Your Content does not and will not violate, infringe, or misappropriate any third party’s personal or proprietary right.
You have the right to terminate your account at any time by sending a cancellation request to email@example.com. Subject to earlier termination as provided below, Kinetic Farm may terminate your Account and this Agreement at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Kinetic Farm may also terminate this Agreement upon ten (10) days notice if you breach any of the terms or conditions of this Agreement. Kinetic Farm reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All accrued rights to payment and the terms of Section 3.7, 4-8 shall survive termination of this Agreement.
6. DISCLAIMER OF WARRANTIES
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kinetic Farm or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND KINETIC FARM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT KINETIC FARM DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION OR SERVICES OBTAINED BY YOU FROM KINETIC FARM OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Section 6.1 – LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL KINETIC FARM BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE AMOUNTS ACTUALLY RETAINED BY KINETIC FARM FROM YOUR ORDERS IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, KINETIC FARM’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Kinetic Farm from and against any claims, actions or demands, including without limitation reasonable attorneys’ fees, arising or resulting from your breach of this Agreement, any of Your Content, your Orders (or the goods or services with respect to such Orders) or your other access, contribution to, use or misuse of the Service. Kinetic Farm shall provide notice to you of any such claim, suit or demand. Kinetic Farm reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Kinetic Farm’s defense of such matter.
You may not assign this Agreement without the prior written consent of Kinetic Farm, but Kinetic Farm may assign or transfer this Agreement without restriction. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Kinetic Farm in any respect. The failure of Kinetic Farm to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Kinetic Farm in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of San Francisco County in the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Last updated: May 23, 2012