This Software and Services Agreement (the “Agreement”) is made and entered into by and between Boonli, LLC, 820 American Street, Suite A San Carlos, CA 94070 hereinafter referred to as “Boonli” and you, hereinafter referred to as “Client”. By clicking the “I Agree” button, you are agreeing to all of the terms and conditions set forth in this Agreement. The Client, together with schools, parents, teachers, administrators, volunteers, students and food vendors associated with Client’s account or accounts, are collectively the “Authorized Users”. The services described herein (the “Services”) as well as all software required to utilize the Services (the “Software”) are operated in and through the website www.boonli.com (the “Site”).
The purpose of this Agreement is to detail the terms and conditions under which Boonli will provide the Software and Services to Client and to Authorized Users.
a) This Agreement, together with the Service Fee Letter referenced below and the on-line sign-up form completed by Client, constitutes the complete and final agreement between the parties and supersedes all prior agreements or representations, written or oral, concerning the subject matter of this Agreement.
b) Boonli reserves the right at any time to change, add or modify the terms and conditions of this Agreement. Notice of any such changes will be posted on the Site and continued use of the Site, the Service and the Software thereafter shall be deemed an acceptance and ratification of any such changes by Client and each Authorized User.
a) Subject to the terms and conditions of this Agreement, Boonli grants to Client and to each Authorized User a non-exclusive, non-assignable license, without right of sublicense, to utilize the Software and the Site solely for purposes of accessing and utilizing the Service.
b) The license rights granted herein are subject to the following restrictions, and Client hereby agrees as follows: (i) Client may not reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Software; (ii) except as specifically provided herein, Client may not disclose, distribute or otherwise make available the Software to any third party (iii) Client may not rent, lease, sublicense or sell the Software, or use the Software for service bureau use or hosted service, unless previously agreed to in writing by Boonli; (iv) Client may not modify, enhance, translate, reproduce or create a derivative version of the Software; and (v) with regard to any and all copies of any documentation related to the Software or the Services (the “Documentation”), Client shall ensure that each copy contains all titles and trademarks and all copyright restricted rights notices as in the original.
c) Client may not extend the license within its own organization beyond the needs and requirements of Client without Boonli’s prior written consent.
d) Client acknowledges that the Software is hosted on the Site and, consequently, no additional copies of the Software will be delivered to Client.
e) Boonli will not configure or customize the Software or the Service unless otherwise specifically agreed to in writing by Boonli. Client acknowledges and agrees that it is accepting and using the Software on a strictly “as-is” and “as-available” basis, and with all faults. Boonli makes no warranties whatsoever regarding the Software or the Services including, without limitation warranties of title, noninfringement, merchantability or fitness for a particular purpose, The entire risk as to the quality and performance of the Authorized User of the Services and the Software is with Client. Boonli does not warrant that the Software or the Services will meet Client’s expectations or requirements or that the Services will be uninterrupted, timely or error-free including any errors or omissions in the provision of the Services.
f) Client agrees that, in connection with its use of the Software and Services it will comply with all laws applicable to it. In addition, Client will comply with any and all acceptable use policies which may from time to time be posted by Boonli on the Site.
a) In connection with the license granted under this Agreement, Boonli will provide Client with a hosted application of the Software on the Site (the “Hosted Application”).
b) Client acknowledges that the Software and/or the Site may be hosted at a third party facility and/or on a third party server. The Software and the Site is available 24 hours per day / seven days a week, excluding periodic time slots for maintenance which will normally be scheduled during off peak hours.
a) Boonli shall use commercially reasonable efforts to ensure the proper installation and smooth operation of the Software for the duration of this Agreement. Boonli shall not, however, have any liability whatsoever to Client in the event of any failure of the Software, any bugs in the Software, or service interruptions in the Services.
b) Boonli shall maintain, update and/or replace the Software and/or the Site during the term of the Agreement in such a manner as it determines, in its sole discretion, is appropriate.
c) Boonli shall address and respond to any error, anomaly, malfunction or bug of which it becomes aware in such a manner as it determines, in its sole discretion, is appropriate.
d) Boonli may provide new Software versions to Client during the duration of this Agreement, be it to correct errors and/or to improve, develop or adapt the existing version, including by adding new functions and features. Client shall only utilize the most current version of the Software at the Site.
f) Client expressly agrees that, under this Agreement, Boonli does not have the obligation to provide any specific developments or error corrections, or to distribute the Software and/or any such future developments or corrections separately, even if specific developments are provided and used in connection with specific Services.
a) This Agreement shall commence on the date the information in the online sign up form on the Agreement page of the Site is completed and submitted by Client, and Client clicks the “I Agree” box acknowledging acceptance of the terms of this Agreement.
b) Either party may terminate the Agreement at any time and for any reason (or for no reason) upon notice to the other party.
c) Upon termination of this agreement for any reasons whatsoever, Client shall immediately stop using the Software and the Services and, depending on Boonli’s request, either destroy or return all data and documentation related to the Software and the Service in all forms, complete or partial, in all types of media and computer memory. Client must send Boonli a certified letter within one month of termination from its legal representative confirming that use of the Software and Service has completely ceased and that all data and documents have been destroyed or returned as required herein.
a) Boonli will assess service fees for use of the Service. Boonli offers various service fee options and therefore, will provide Client with a confidential document to be sent under separate cover detailing the exact fee structure, billing scenarios and invoicing procedures applicable to Client (the “Service Fee Letter”). The Service Fee Letter is a part of, and shall be incorporated into, this Agreement.
b) Costs related to any other services delivered by Boonli but not included in this Agreement, such as additional customization services, training and consulting, as well as the travel and living costs incurred by Boonli while servicing Client, are not included and may be separately invoiced at the discretion of Boonli. No such additional services shall be conducted unless the specific services and the terms and conditions for providing such services have been agreed to in writing between Client and Boonli.
c) All fees payable by Client to Boonli pursuant to this Agreement and Service Fee Letter shall be paid within fifteen (15) days from date of Boonli invoice therefore to Client.
d) In the event Authorized Users (parents, guardians, staff, or any end user) of the Site require a refund due to poor food service or quality, Client acknowledges and agrees that Client, the school and/or the company providing the food are responsible for managing the refund process, and Boonli shall have no liability or responsibility therefore. If Boonli assists with any refund to Authorized Users, Boonli may impose a handling fee of up to $2.00 per transaction. Client further acknowledges that any service fees earned by Boonli on account of such transactions shall be retained by Boonli or, if such service fees have not yet been paid, shall be payable by Client, notwithstanding any refund requirement. In the event Boonli has collected the funds which are the subject of the refund request or dispute, and if Boonli has not yet disbursed those funds to Client, Boonli may, at its sole option, retain such funds pending resolution of the refund request or dispute. If authorized by Client, or if Client is not properly responding to any refund request or dispute, Client, in its sole discretion but without any obligation to do so, may utilize any Client funds held by Boonli to honor any such refund requests or resolve any such disputes with Authorized Users, and any amounts expended by Boonli in that regard may be off-set against any amounts due by Boonli to Client. If the amounts expended by Boonli exceed the amounts due to the Client (after deduction of all service fees and other amounts due from Client to Boonli), Client shall immediately pay such excess to Boonli upon receipt of an invoice therefore.
e) In the event Client has not made any payment required to be made under this Agreement by the due date thereof, Boonli may suspend its Services or terminate Client’s right to utilize the Software and the Service. In addition, Boonli may charge interest from the due date at 18% per annum, or the maximum amount allowed by law, whichever is less.
f) All fees are exclusive of all taxes (including, without limitation, sales and use taxes), levies or duties imposed by any national, federal, state or local taxing authorities other than United States (federal or state) net income taxes (collectively, “Taxes”), and Client shall be responsible for payment of all such Taxes. If Boonli is required to pay any such Taxes, Client shall reimburse Boonli for the full amount of Taxes required to be paid by Boonli within 30 days after receipt of an invoice therefore.
a) If Authorized Users are not satisfied with any meal or service that is used after purchase with a Payment, Authorized User will resolve the issue directly with Client’s school. Resolution will be based on the methods for refunds of goods or services that have been predetermined solely by each school. Client acknowledges and agrees that Authorized Users shall not seek refunds from Boonli or through the Site, and that Client shall bear sole responsibilities for such refunds.
b) Credits issued by the Site will only be processed within the current school year and will not carry over into the following school year(s). If an Authorized User cancels meals online within the designated period set by the school and does not plan to store their credit for future use and would like their money returned via check or credit card refund, the Authorized User will need to contact Boonli by sending an email to support@ boonli.com to request their refund.
c) If an Authorized User requests a refund and Boonli has already transmitted the funds to Client, the school, or the food service provider contracted by the school for the meals for which the Authorized User may request a refund, Client will be solely responsible for providing the refund.
d) Any service fees associated with any Authorized User transactions assessed by Boonli are non-refundable.
a) Client shall be solely responsible for ensuring the security of its computer system and its information.
b) Client and the Authorized Users are solely responsible to ensure the confidentiality of all passwords and user names. Client and each Authorized User agrees to take all necessary measures to protect the confidential nature of all passwords and user names. Any use of passwords and user names conclusively presumes the person utilizing the user name and password is fully authorized to do so and to order one or more Services of Boonli, and Client agrees that it shall be fully responsible for any use of an Authorized User’s account. Client agrees to notify Boonli immediately of any loss or disclosure, whether voluntary or otherwise, of any password to a third party. This notification must be made to Boonli and confirmed by registered letter with return receipt confirming the receipt of such notification by Boonli. Boonli will interrupt or refuse all access and any orders made using this password within one (1) business day following the receipt of the registered letter. While Boonli may take action based on other communication methods, only the date of receipt of the registered letter will be required to be recognized by Boonli.
c) Client will process and maintain any personal data collected from Authorized Users and other persons in accordance with all applicable laws related to such personal data. Client will be responsible for compliance with any legal processes and/or declarations which are required under the applicable law.
a) Boonli does not represent or warrant that the Software or the Service suits Client’s or its Authorized Users’ needs. Consequently, Client shall be solely responsible for making sure that the Software and the Service meets its and its Authorized Users’ requirements. In addition, in the event of any failure of the Software or the Service, or in the event Boonli otherwise defaults under any provisions of this Agreement, then Client’s sole and exclusive remedy shall be termination of this Agreement and, to the maximum extent permitted under applicable law, Client and each Authorized User, hereby waives and relinquishes any and all other rights or remedies it may have at law or in equity.
b) Client shall be solely responsible for any requests and/or orders it or its Authorized Users places through the use of the Software and the use it or they may make of the Software. Boonli shall not be held liable for any errors caused by Client or Authorized Users, or for errors, breakdowns and interruptions of any hosting company computer systems or communication lines.
c) CLIENT ACKNOWLEDGES THAT THE SITE IS NOT DESIGNED TO, AND DOES NOT, PROVIDE MEDICAL OR NUTRITIONAL ADVICE. ALL SERVICES PROVIDED THROUGH THE SITE, ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. BOONLI DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BOONLI DOES NOT GUARANTEE THAT THE MATERIALS, INFORMATION OR SERVICES PROVIDED THROUGH THIS SITE WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. BOONLI DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OFFERED THROUGH THE SITE. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS AT CLIENT’S OWN DISCRETION AND RISK. CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM DOWNLOADING SUCH MATERIAL AND/OR DATA.
BOONLISHALL NOT BE LIABLE FOR AND EXPRESSLY DISCLAIMS ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL BOONLI BE LIABLE FOR SUCH DAMAGES, WHETHER RESULTING FROM THE ACTIONS OR CONDUCT OF BOONLI OR OF ANY BOONLI SUBSCRIBER OR USER.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BOONLI’S AGGREGATE LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO BOONLI’S ACTUAL OR ALLEGED NEGLIGENCE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO BOONLI IN CONNECTION WITH THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACT OR OMISSION WHICH ALLEGEDLY CAUSED THE DAMAGE.
ALL INFORMATION, RECIPES, MENU ENTRIES, FOOD, AND PRODUCT DESCRIPTIONS (COLLECTIVELY, “THE DESCRIPTIONS”) AND/OR THIRD PARTY ENDORSEMENTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE DESCRIPTIONS SHOULD NOT BE USED AS A THERAPEUTIC MODALITY OR AS A SUBSTITUTE FOR THE ADVICE OF A NUTRITIONIST OR OTHER HEALTHCARE PROFESSIONAL. THE NUTRITIONAL INFORMATION THAT MAY BE PROVIDED FOR IN THE RECIPES, FOODS, AND PRODUCTS ON THE SITE IS BASED ON INDUSTRY STANDARD ANALYSIS. ANY ENDORSEMENT ON THE SITE IN CONNECTION THEREWITH IS INTENDED TO HELP AUTHORIZED USERS MAKE INFORMED DECISIONS ABOUT THEIR CHILD’S NUTRITION AND DIET AND IS NOT DESIGNED, INTENDED, OR CAPABLE OF REPLACING PERSONALIZED NUTRITION AND HEALTH SERVICES. NO ACTION SHOULD BE TAKEN BASED SOLELY ON THE CONTENT OF THE SITE, REGARDLESS OF PERCEIVED SCIENTIFIC MERIT.
d) The provisions of subparagraphs (a) through (c), above, shall survive the termination or expiration of this Agreement.
Client acknowledges and agrees that Boonli shall have no liability whatsoever for any claims by any party (including, without limitation, Authorized Users) related to the provision of food products or other products by Client, by any vendors, customers or clients of Client, or by any Authorized User.
Client agrees to indemnify and hold Boonli harmless from and against any and all claims, liabilities, causes of action, damages, costs and expenses (including, without limitation, attorneys’ fees) incurred by Boonli as a result of or in any way related to the provision of (or failure to provide) food products or other products by Client, by any Authorized User, or by any vendors, customers or clients of Client. The indemnity obligations of this Agreement shall survive the termination or expiration of this Agreement.
The term “confidential information” (hereinafter “Confidential Information”) shall mean the Software, the Documentation, the Service Fee Letter, as well as any other documents or information provided by Boonli to Client bearing a confidential marking or statement, or if disclosed orally, in machine readable form or by visual inspection indicated as being of confidential nature within thirty (30) days following oral and/or visual disclosure.
Client shall use the Confidential Information for no other purpose than the performance of this Agreement. Client shall use all reasonable precautions to protect the confidentiality of the Confidential Information and agrees not to divulge or disclose, either directly or indirectly, in whatever form or by whatever means, the Confidential Information or any part thereof to third parties without the prior approval of Boonli.
Client shall have the right to disclose the Confidential Information to its employees, agents or contractors to the extent that such employees, agents or contractors have a need to know within the framework of this Agreement and provided that Client obtained the necessary confidentiality agreements from such employees, agents or contractors. Client shall be liable for any unauthorized disclosure or use of the Confidential Information by such employees, agents or contractors.
The confidentiality obligation shall start as of the date of disclosure of the Confidential Information and shall continue for two (2) years from the expiration or termination of this Agreement; provided, however, that Confidential Information which constitutes trade secrets of Boonli shall be held confidential until it no longer constitutes a trade secret of Boonli.
The confidentiality obligation set forth above shall not apply to Confidential Information for which Client can prove that: (a) it was in its possession without confidentiality restriction prior to disclosure, (b) is or has become generally available to the public through no act or omission of Client or any employee, agent or contractor of Client, (c) it has been rightfully received from a third party without restriction on use or disclosure or (d) it is legally required to disclose; provided that it has promptly, in any event before complying with such requirement, provided Boonli with notice of such requirement so that Boonli may seek a protective order or other appropriate remedy.
Any and all works of authorship, inventions, discoveries, trademarks, service marks, or other intellectual property used in connection with or otherwise related in any way to the Site, the Software, the Documentation, the Services, descriptions, and the food items and other products and materials Boonli describes on or furnishes through the Site (collectively, “Intellectual Property”) are the sole property of Boonli or its third party licensors and are protected to the fullest extent possible by copyright, trademark and other intellectual property laws, and Client shall have no right, title, or interest under any such Intellectual Property except as expressly permitted hereunder. Client is strictly prohibited from copying, preparing derivative works of, reverse engineering, reproducing, retransmitting, distributing, publishing, commercially exploiting, or otherwise transferring any such materials in any format or medium whatsoever. The content and materials furnished and otherwise made available by other Site users and subscribers are provided to Client for use solely as expressly permitted herein or on the Site. If Client wishes to redistribute or use such content and materials in any other manner, Client bears sole responsibility to obtain permission from the user or subscriber who posted it and sole liability in connection with any such redistribution or use.
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California. No legal action, in any form whatsoever, having its origin in the Agreement, may be brought by Client more than one (1) year after the event giving rise to such claim. To the full extent permitted by law, the parties specifically waive any claim or right to a jury trial.
In the event that any dispute arises between Client and Boonli regarding or relating to this Agreement and/or any aspect of the Client’s relationship with Boonli, AND IN LIEU OF LITIGATION AND A TRIAL BY JURY, the parties consent to resolve such dispute through mandatory arbitration in Santa Clara County, California under the then prevailing rules of the Judicial Arbitration and Mediation Services (“JAMS”), before a single arbitrator mutually agreed to by the parties, or, if an arbitrator has not been agreed upon by the 60th day of the demand for arbitration by either party, appointed by JAMS. The parties hereby consent to the entry of judgment upon award rendered by the arbitrator in any court of competent jurisdiction. Notwithstanding the foregoing, however, should adequate grounds exist for Boonli seeking immediate injunctive or immediate equitable relief, Boonli may seek and obtain such relief without the necessity of posting bond. The parties hereby consent to the exclusive jurisdiction in the state and Federal courts of or in the State of California for purposes of seeking such injunctive or equitable relief as set forth above. The parties acknowledge and agree that, in connection with any such arbitration and regardless of outcome, (a) each party shall pay all of its own costs and expenses, including without limitation its own legal fees and expenses, and (b) joint expenses shall be borne equally among the parties. Notwithstanding the foregoing, the arbitrator may cause the losing party to pay to the winning party (each as determined by the arbitrator consistent with its decision on the merits of the arbitration) an amount equal to any reasonable out-of-pocket costs and expenses incurred by the winning party with respect to such arbitration (as may be equitably determined by the arbitrator).
All notices required to be sent hereunder shall be deemed to have been given on the date received (or the first attempted delivery date, if delivery is refused) if sent by certified mail with return receipt requested, by Federal Express or other recognized overnight courier, by facsimile or by electronic mail to the Boonli address set forth above or to the Client’s address noted in the online sign up form.
No failure by either party in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy. The waiver by either party of any breach or default under the Agreement shall not constitute a waiver of any other or subsequent breach or default.
If any provision of this Agreement or portion thereof is held invalid by any law, rule order or regulation, or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any of the other provisions of this Agreement.
Any detailed publicity such as press releases shall be subject to the prior written consent of both parties. Boonli is allowed to publicly include Client in its list of customers. Client expressly authorizes Boonli to display its logo and the mention “Powered by Boonli” on Client’s user or Authorized User interface to the Software.
Questions or problems submitted to Boonli’s Customer Service department shall be dealt with over the telephone or by email.
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