MenuCalc Terms of Service

FoodCalc, LLC

MenuCalc is a product of FoodCalc, LLC (hereinafter “FoodCalc”). All users of MenuCalc first agree to be bound by the following MenuCalc terms and conditions.

The FoodCalc, LLC Services include computer Software programs, documentation, data, databases and other proprietary materials that belong to FoodCalc, LLC or its licensors (collectively referred to hereinafter as “Services”), and are subject to the following terms and conditions. The Services are licensed only on the condition that you, the “Customer”, agree to the terms and conditions set out below.

1. Definitions of “Customer,” “Master,” and “User”; Access to Services and Support

1.1 The term “Customer” as used in this agreement and throughout these terms and conditions shall mean that single individual person or that single business entity or concept under its own brand name whose name and address are entered by Customer in the register/Sign Up Page (“Sign Up Page”). The term “Customer” expressly excludes any and all of Customer's divisions, subsidiaries, associates, affiliates, contractors, vendors, manufacturers, processors which do not perform all of their business activity at premises which are owned or leased by Customer.

1.2 The term “Master” as used in this agreement and throughout these terms and conditions shall mean that named individual person who is authorized to accept and does accept on behalf of Customer all the responsibilities and obligations contained within this agreement. Any “Master” shall also be deemed a “User” for the purposes of this agreement, and as “User” is defined in 1.3 following.

1.3 The term “User” as used in this agreement and throughout these terms and conditions shall mean any person (including the Master) who is authorized by Master (acting on behalf of Customer) to have access to the Services, provided always that each and every User (including Master) shall be a direct employee of Customer and be on the payroll of Customer and on no other payroll.

1.4 Subject to the terms and conditions of this agreement, MenuCalc will use reasonable efforts to provide Customer access to the Services. As part of the registration process, Customer agrees to designate and limit its usage of the Services to the responsible Master and to any authorized users set forth in the Sign Up Page at www.menucalc.com and also displayed in Customer's “my account” section. MenuCalc reserves the right to refuse registration of, or cancel accounts where it deems appropriate, or customer is found in breach of these terms.

1.5 Subject to the terms hereof, MenuCalc will use reasonable efforts to provide Customer with support Services, through electronic mail or telephone, in accordance with MenuCalc's standard practices.

1.6 MenuCalc shall be entitled to immediately terminate Customer's use of the Services in the event that MenuCalc determines at its sole discretion that Customer is in breach of the “Master” and “User” authorizing provisions of this section 1, provided that MenuCalc promptly thereafter notifies Customer of such termination.

1.7 MenuCalc reserves the right to mention Customer for marketing purposes which include but limited to: product and company websites, whitepapers, media packets, emails and all other marketing collateral that company shall use. Customer may revoke this permission at any time with immediate effect by written notice to MenuCalc.

2. Restrictions and Responsibilities

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software (including any free trial, live demo, and online tutorials), documentation or data related to the Services (“Software”) in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Services, (c) support, supply or share Customer account data or access to competitive product, company or their employees, offices or contractors to support direct competition, or (d) copy any ideas, features, functions or graphics of the Services; modify, translate, or create derivative works based on the Services or any Software; or license, sublicense, copy, rent, resell, distribute, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to or commercially exploit the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels. Customer shall not create internet “links” to or from or within the Services (except for links on Customer's website to MenuCalc's applications for the benefit of MenuCalc), or “frame” or “mirror” any content forming part of the Services, except for Customer's own internal business purposes.

2.2 Each party represents, covenants, and warrants that it will (i) use the Services only in compliance with these terms and conditions; (ii) not infringe or misappropriate any third-party's patent or other intellectual property rights and (iii) it will fully comply with all applicable laws, rules, and regulations (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation). The parties hereby agree to indemnify and hold harmless the other party against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable outside attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or any other breach of this agreement, or gross negligence or willful misconduct, or otherwise from Customer's use of the Services, or alleging that the Customer data infringes the intellectual property rights of, or has otherwise harmed, a third-party. Although MenuCalc has no obligation to monitor the data or content provided by Customer or Customer's use of the Services, MenuCalc may do so and may remove any such content or immediately prohibit and terminate any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer data, including Customer data entered into any MenuCalc database, and shall not negligently or intentionally enter incorrect data into any MenuCalc database.

2.3 Customer shall be responsible for obtaining and maintaining any Equipment and ancillary Services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, Software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in MenuCalc's published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent. Customer is responsible for all activities that occur under Customer's User accounts. Customer shall prevent unauthorized access to, or use of, the Services, and notify MenuCalc promptly of any such unauthorized use. In addition to the foregoing, the Customer's “Master” (as defined at the Sign Up Page) has the ability to delete Customer users and their data and products. If any User ceases to be employed by the Customer, the Master shall have sole responsibility to ensure the security of the Services and any Proprietary Information. In addition, the Master shall be responsible for deleting various account information associated with any such departing/departed User. MenuCalc shall have no responsibility or liability with respect to any actions taken or not taken by Customer users and masters. Customer shall use the Services solely for its internal business purposes as contemplated by this agreement and shall not: (i) send or store material containing Software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (iii) attempt to gain unauthorized access to the Services or its related systems or networks.

2.4 Customer acknowledges that in providing the Services, MenuCalc utilizes (i) certain trade-name(s), logo(s), domain name(s), product and service name(s) associated with the Services, and other trademarks and service marks; (ii) certain audio and visual information, documents, Software and other works of authorship; and (iii) other technology, Software, hardware, products, processes, algorithms, User interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, ” MenuCalc Technology”) and that the MenuCalc Technology is covered by intellectual property rights owned or licensed by MenuCalc (collectively, “MenuCalc IP Rights”). Other than as expressly set forth in this agreement, no license or other rights in or to the MenuCalc Technology or MenuCalc IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.

2.5 MenuCalc's privacy policy and privacy statement is set forth within the application and incorporated herein by this reference. Customer agrees to abide by and be bound by such statement.

2.6 MenuCalc shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its users relating to the operation of the Services.

2.7 MenuCalc shall be entitled to immediately terminate Customer's use of the Services in the event of Customer's breach of provision of this section 2, provided that MenuCalc promptly thereafter notifies Customer of such termination.

3. Confidentiality

3.1 Each undersigned party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For the purpose of this agreement, “Proprietary Information” shall mean information received by the Receiving Party from the Disclosing Party which would logically be considered confidential or proprietary, which would do the disclosure harm if divulged, or which is marked “confidential”, “proprietary” or the like at the time of disclosure. “Proprietary Information” also includes proprietary or confidential information of any third-party disclosed by one party to the other party.

3.2 The Receiving Party agrees (i) to hold all Proprietary Information disclosed under this agreement in the strictest confidence and take reasonable precautions to protect such Proprietary Information, utilizing the same degree of protective care and diligence the Receiving Party uses to protect the confidence of its own confidential and/or Proprietary Information, but not less than reasonable care, and (ii) not to use or divulge any such Proprietary Information to any third person. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third-party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) approved for release (and only to the extent so approved) by the Disclosing Party.

3.3 Notwithstanding the foregoing, MenuCalc shall be entitled to use Customer data (including any food product nutrition composition data supplied by Customer for its own manufactured products) which client transfers to MenuCalc for inclusion in any MenuCalc database and access by other users; provided that MenuCalc shall not divulge any of Customer's recipes, formulas, or otherwise identify Customer in connection with such access. MenuCalc may also collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services' performance and use by Customer.

3.4 If the Receiving Party is compelled by law to disclose Proprietary Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

3.5 If the Receiving Party discloses or uses (or threatens to disclose or use) any Proprietary Information of the Disclosing Party in breach of this section 3, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

4. Payment of Fees

4.1 Customer will pay MenuCalc the then-applicable Fees for the Services (the “Fees”). If Customer's use of the Services exceeds the authorized number of users, usage amounts or usage periods referenced in section 1.1 or at the Sign Up Page, Customer shall be billed for the excess usage in accordance with the policies, and Customer agrees to pay the additional Fees in the manner provided herein. Currently applicable Fees are set forth in the Sign Up Page. MenuCalc reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).

4.2 If Customer believes that MenuCalc has billed Customer incorrectly, Customer must contact MenuCalc no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to MenuCalc's Customer support department. Refunds are on a case-by-case basis.

4.3 Payment for the Services may only be made as set forth on the Sign Up Page. Customer shall be responsible for all taxes associated with Services other than u.s. Taxes based on MenuCalc's net income. If MenuCalc has the legal obligation to pay or collect any taxes for which Customer is responsible under this section, the appropriate amount shall be paid by Customer unless Customer provides MenuCalc with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer's account is at any time overdue, in addition to any of its other rights or remedies, MenuCalc reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.

5. Billing Terms and Payment of Fees for Recurring Billing

5.1 Customer must have a valid credit card for paid accounts. If your credit card fails to successfully be charged Customer will be notified by email to provide an updated card. MenuCalc will attempt to retry Customer's card for successful debit and until this time Customer's account will be suspended pending good standing. Customer's paid account may be renewed upon mutual agreement between the parties. Once logged into Customer's account, Customer may cancel your subscription at any time by clicking on the Account link in the navigation bar of Customer's account. Customer accepts and acknowledges that a cancelled account may incur a reactivation fee at MenuCalc's sole discretion. If MenuCalc believes Customer is in probable breach of any of these terms and conditions, MenuCalc reserves the right to terminate effective immediately. Valid credit card on file, renewing/upgrading/downgrading and not applicable for lifetime license.

6. Upgrades, Downgrades, Credits, and Refunds

6.1 If Customer upgrades to a monthly account, Customer is charged the new plan rate on their next scheduled billing cycle. All annual accounts are pre-paid in full at time of purchase or upgrade.

6.2 No credit is given if Customer downgrades to a lesser value plan within scheduled payment. All new charges are applied to next billing cycle. Downgrades occur immediately at time of downgrade. Customer agrees and acknowledges there is no downgrading of an account in the same billing cycle as an upgrade.

7. Use of Promotional Discounts

7.1 MenuCalc reserves the right to make changes to the terms of any promotion discount codes at any time.

7.2 In the event that a Customer violates the terms of a promotional discount code, MenuCalc reserves the right to suspend or terminate the Customer account.

7.3 For customers using promotion discount codes provided for MenuCalc partners, the Customer hereby agrees and acknowledges that Customer is a current member or client of the MenuCalc partner for which Customer is entering this exclusive promotion code for. The Customer hereby authorizes MenuCalc to suspend Customer account if MenuCalc and/or partner finds Customer status to be different, inactive or untrue during promotion code entry.

8. Termination

8.1 MenuCalc reserves the right to give notice of termination of Services (“Termination Notice”) as follows:

8.2 In the event that Customer's payment for Services has expired, MenuCalc may issue a Termination Notice that Services will be terminated and may not be reinstated unless Customer delivers to MenuCalc within thirty (30) days of receipt of the Termination Notice, the full payment due including any back payment.

8.3 Subject to sections 1.6 and 2.7 (immediate termination), if MenuCalc determines at its sole discretion that Customer is in probable breach of any of these terms and conditions, MenuCalc may issue a Termination Notice that Services will be terminated and may not be reinstated unless Customer satisfies MenuCalc within thirty (30) days of the receipt of the Termination Notice that Customer is then in full compliance with these terms and conditions.

8.4 Upon any termination, MenuCalc agrees to provide, in an industry standard format, an export of Customer's data to Customer within thirty (30) days from the date of termination. After thirty (30) days from the date of termination, MenuCalc shall delete all archived data.

8.5 All sections of this service agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, indemnification obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

9. Warranty and Disclaimers

9.1 MenuCalc shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MenuCalc or by third-party providers, or because of other causes beyond MenuCalc's reasonable control, but MenuCalc shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

9.2 MenuCalc provides the Services, which includes food ingredient nutrition composition data and food nutrient content claims which is either in the public domain through governmental or official agencies, including the United States department of agriculture (“USDA”), food and drug administration (“FDA”) or has been provided by third-party food product manufacturers. MenuCalc imports or accepts all third-party data “as is.” MenuCalc takes no responsibility for the accuracy of any composition data included in its database.

9.3 MenuCalc makes the Services available on the understanding that customers exercise their own skill, care and judgment with respect to its use, and are solely responsible for reviewing the accuracy, completeness and relevance of the results for any and all Customer purposes. Customer shall be solely responsible, and MenuCalc shall not be responsible, for the results derived from Customer's inputs and entries during its use of the Services, including Customer's completion or selection of any and all variable fields (e.g., ingredients, nutrient content claims, quantities, regulatory factors, identification of potential allergens output and export options including labels, fact panels, etc.).

9.4 Customer is expressly advised that MenuCalc makes no representation or warranty that the Services or any component thereof is free of error or that the Services meet any of Customer's specific requirements, including Customer's compliance with any regulatory requirements. MenuCalc does not hold itself out as an expert in any particular circumstance. Advice provided by MenuCalc may not be current and may not be relied upon. Client is expressly advised to obtain appropriate expert advice relevant to client's particular circumstances.

9.5 MenuCalc makes no warranty that the results generated by the Services will be free from error, or if used will ensure compliance with the relevant requirements of the food and drug administration, the USDA, or any other foreign, federal, state or local agencies. Before relying on the results generated by the Services in any important matter, Customer should carefully evaluate the accuracy, completeness and relevance of the results for its purposes, and should obtain appropriate expert advice relevant to its particular circumstances.

9.6 MenuCalc advises Customer of the inherent limitations in the Services. Food composition data used in the Services contain nutrient data that is an average of nutrients in a particular sample of foods and ingredients, determined at a particular time. The nutrient composition of foods and ingredients can vary substantially over different batches, and between brands because of a number of factors including changes in season, processing practices and ingredient source.

9.7 Customer is advised that given the disclaimers and limitations set forth in this section 9, the results generated by the Services may be only approximate in nature, rather than exactly reflective of Customer's product's average nutrient composition. Nutrient data derived from analysis of a representative sample of Customer's individual products would generally provide a more exact reflection of the average nutritional composition of such products.

9.8 MenuCalc does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. If there is an interruption in credit card processing between FoodCalc, LLC and Stripe Inc, account status may be put on hold until appropriate payment has been confirmed. MenuCalc will notify Customer of any known errors upon discovery of interruption. The Services are provided “as is” and MenuCalc disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

9.9 The accuracy of the data supplied to FoodCalc for conducting nutrition analysis is solely the responsibility of the client. The accuracy of clients formulas, recipes, measures and weights of ingredients, production yields, the additional data pertaining to the other ingredients such as nutrition information for specific ingredients used by client in the recipe, and any other information supplied to FoodCalc is the responsibility of the client. Nutritional analysis information provided by FoodCalc is based on the estimated database analysis using available standard USDA ingredients or other brand name ingredients that are obtained by FoodCalc to provide nutritional results. Some nutritional values may vary depending on the exact ingredients, brand name and nutritional results used by client from a third party, therefore client should always review the final accuracy of results provided by FoodCalc.

10. Limitation of Liability

10.1 Notwithstanding anything to the contrary, except for bodily injury of a person, a party's indemnification obligation, and breaches of confidentiality, a party's and its licensors, and its officers, affiliates, representatives, contractors, agents, and employees shall not be responsible or liable to Customer or any third-party with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a)for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, Services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond a party's reasonable control, even if a party has been advised of the possibility of such loss or damage; or (d) for any amounts that, together with amounts associated with all other claims, exceed two times the Fees paid by Customer to MenuCalc for the Services under this agreement in the twelve months prior to the act that gave rise to the liability.

11. U.S. Government Matters

11.1 Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States department of commerce, the United States department of treasury office of foreign assets control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation (if permitted in writing to be installed by MenuCalc on Customer's Equipment) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer Software” and “commercial computer Software documentation.” consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial Software or commercial Software documentation by the u.s. Government will be governed solely by the terms of this agreement and will be prohibited except to the extent expressly permitted by the terms of this agreement.

12. Miscellaneous

12.1 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. This agreement is not assignable, transferable or sub-licensable by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, a party may assign this agreement in its entirety without the other party's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this agreement, the prevailing party will be entitled to recover costs and reasonable outside 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; 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 with a copy sent via email to support@foodcalc.com. This agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The state and federal courts located in or nearest to Santa Barbara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this agreement.