Terms of Use - Kansas City Food Guide

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TERMS AND CONDITIONS for
WEB HOSTING SERVICE AGREEMENT

1.This Agreement sets forth the terms and conditions that apply to the agreement between Kansas City Food Guide, LLC, a limited liability company organized and existing under the laws of Missouri with offices and the registered user (the “User” or “Food Service Co”) of KC Food’s website (together, the “Parties” or, either one, a “Party”). 
2.The Parties’ Agreement (the “Agreement”) shall consist of these Terms and Conditions and the terms of price, payment, term (number of months, herein, the “Contract Term”) and Package Plan(basic, deluxe or premium) designated in the on-line registration by the User.   
3.User’s registration of its web presence on KC Food’s web site and payment of the Fee shall constitute its agreement to this Agreement and acknowledgment that it has read the entire Agreement and understands, accepts and agrees to be legally bound by the same.  User covenants, represents and warrants that: 
	a.The name and all identifying information set forth in its on-line registration, including its address, facsimile number, email address and web site URL are true and correct; 
	b.Such address reflects the correct physical and mailing address of the User; 
	c.The person identified as the owner, manager or other agent or representative of the User is in fact the natural person effecting the on-line registration (i.e, not an impostor or another person committing identity theft) and has authority to make such registration and so act on behalf of the User; 
	d.The User is in fact actively promoting and conducting the type of business which is designated in the on-line registration with personnel, business plans, operational resources and financial standing reasonably adequate to undertake and carry on such business;
	e.The User exists and is in good standing with all relevant government authorities in the manner appropriate for the type of business organization, whether as a corporation, limited liability company, sole proprietorship, partnership or otherwise; 
	f.That it will not post any information or material on the web site or otherwise use its web presence in a manner which infringes any third party’s property (including intangible property) or privacy rights; and 
	g.that its purpose and intent in utilizing the services provided hereunder is for its marketing and business promotion and that it will not post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law and laws protecting intellectual property including copyright, trademark, trade secret, patent, misappropriation and anti-dilution laws that its purpose and intent in utilizing the services provided hereunder is for its marketing and business promotion and that it will not post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law and laws protecting intellectual property including copyright, trademark, trade secret, patent, misappropriation and anti-dilution laws.  
4.Effective Date; Term and Termination.  
	a.This Agreement is effective as of the date of on-line execution which shall be the time when User effects payment in accordance with the terms hereof.  
	b.The Agreement and all of KC Food’s obligations hereunder shall terminate upon the expiry of the Contract Term unless User has extended the same in accordance with the Agreement terms in effect at the time of such extension.  
	c.This Agreement shall not be terminated prior to the end of the Contract Term except for User’s material breach of the Agreement upon notice of such breach and termination given by KC Food to User in accordance with the terms of article 10 (“General Provisions”).  
5.Nature of Agreement and Services Provided.  
	a.KC Food is a web presence provider, the functionality of which is evident to the User upon registration, and User acknowledges ample opportunity to review and observe the same at KC Food’s web site.  KC Food reserves the right to upgrade and make in its sole discretion any other changes to capacity, functionality, appearance or otherwise to the web presence available to and used by User and KC Food’s web site generally. 
	b.KC Food will make reasonable efforts to maintain and operate the web site so that User’s web presence remains operational on a reasonably continuous basis.  The parties acknowledge that all web sites may be inaccessible or inoperable for many reasons, including without limitation equipment malfunctions; periodic maintenance procedures or repairs which KC Food or its agents may undertake from time to time or causes beyond the control of or which are not reasonably foreseeable by KC Food, including without limitation, interruption or failure of telecommunications or digital transmission, links, hostile network attacks, network congestion or other failures.  
	c.User shall be solely responsible for maintaining its web presence and all content therein.
	d.User shall bear all risk of loss and damage to its web presence and all content thereon.  User is completely responsible for maintaining the confidentiality of the password and account administration information.  User is fully responsible for undertaking measures to prevent any loss or damage to the web presence and any content thereon and maintain backup copies of all content.  KC Food does not provide archival services in any regard to the User’s web presence or content thereon.  
	e.User shall abide by and adhere to all terms and conditions of this Agreement and all local, state, federal and international laws in all aspects of its use of KC Food’s Web Site.  
	f.User shall pay all applicable taxes and similar charges (whether local, state, national or otherwise) which may be levied or assessed or made applicable to User’s web presence or any aspect thereof.  
6.Warranties.  The warranty of KC Food under this Agreement is limited to the reasonable efforts to maintain and operate the web site expressly required of it by clause b of article 5 (“Nature of Agreement and Services Provided”).  
	a.Remedy.  If within the Contract Term KC Food commits a breach of this warranty, User’s exclusive remedy and KC Food’s warranty obligations shall be limited to a credit for the fee paid for the month during which such breach occurred.  This exclusive remedy shall not be deemed to have failed its essential purpose so long as KC Food credits such monthly fee to User or grants an additional one month period to the Contract Term.  
	b.Exclusion of Warranties; Limitation of Liability.  THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE.  UNDER NO CIRCUMSTANCES SHALL KC FOOD BE SUBJECT TO ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES WHATSOEVER WITH RESPECT TO CLAIMS MADE HEREUNDER OR BY THE USER OR ANY THIRD PARTY.   In no event shall KC Food’s liability under any claim arising out of this Agreement (whether based on a theory of contract, warranty, tort, infringement or otherwise) exceed the credit provided for in this article (“Warranties”).  
7.Indemnification.  User agrees to indemnify and hold KC Food, its managers, owners, agents,  employees, successors and assigns harmless against all losses, damages or expenses of whatever form or nature, including attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of, arising out of or related to: 
	a.any act or omission of the User or any of its directors, officers, employees or agents, including but not limited to 
		i.breach of any promises, representations or warranties or other provisions of this Agreement, and 
		ii.Any negligent, willful or improper conduct.  
	b.Any allegation that the User’s web presence or the content thereon infringes a third person’s copyright, trademark, trade secret or other proprietary or intellectual property right,  including infringement or alleged infringement of third party rights; or 
	c.the sale of a product or service by or in connection with the web presence.  
8.Arbitration; Claims Period
	a.Arbitration.  Unless otherwise mandated by applicable law, any controversy or claim arising out of or relating to this Agreement that cannot be settled amicably by the Parties shall be determined by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed by the AAA. Service of any matters in reference to such arbitration shall be given in the manner described in Section 10.b. (Notice) below.  Such arbitration shall be held at a site located in the metropolitan area of Kansas City, Missouri, unless the parties shall otherwise mutually agree.  The award in such arbitration shall be final and enforceable in any court of competent jurisdiction.  
	b.Time Limitation for Claims.  The parties agree that the arbitration proceedings must be initiated within one year after the claimed breach or other violation occurred and that the failure of either party to commence arbitration proceedings within such period shall constitute an absolute bar to the institution of any proceedings and a waiver of all such claims.  
9.General Provisions
	a.Entire Agreement.  This Agreement represents the entire agreement between the parties on the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them.  No modifications of this Agreement will be effective unless in writing and signed by both parties.  
	b.Notice.  All notices under this Agreement shall be given by mail to KC Food at its address first above written, [or by email to questions@kcfoodguide.com,] or to User at its address designated in its on-line registration.  
	c.Severability.  The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provision hereof.  
	d.Nonassignment.  This Agreement shall be binding on and inure to the benefit of the successors and assigns of the business interests of KC Food and may be assigned by KC Food but only to the acquiror of substantially all of its assets in conjunction with such an acquisition.  User shall not sell, assign, delegate or otherwise transfer any of its rights or obligations hereunder without the prior written consent of KC Food. 
	e.Applicable Law.  This Agreement shall be construed, enforced and performed in accordance with the laws of Missouri. 
	f.No Partnership or Agency.  Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment relationship, or franchise between the parties; neither shall either party have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other party.  The parties acknowledge and agree that their relationship is one of independent contractors.  
	g.Waiver.  User agrees that the failure of KC Food at any time to require performance by User of any of the provisions herein shall not operate as a waiver of the right of KC Food to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.  
	h.Headings.  Any headings used herein are for convenience in reference only and are not a part of this Agreement, nor shall they in any way affect the interpretation hereof.
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