Home Office Terms of Service

By purchasing Dinerware’s Home Office Service (“Service”), you are agreeing to the following terms and conditions (“Terms of Service” or “TOS”). Violation of any of these Terms of Service will result in termination of your Home Office account. Dinerware reserves the right to update and change the Terms of Service or the Service from time to time by sending you prior notice by email of the change. These changes, including the addition or deletion of features, functionality, resources, or any other alteration to your then current Service will be subject to these Terms of Service as modified from time to time. Your continued use of the Service after any such change to the Service or modification of terms will constitute your consent to the change to the Service or TOS. You agree that you are using this or any future version of the Service at your own risk and subject to the disclaimers set forth below.

You can review the most current version of the Terms of Service at any time at: http://homeoffice.dinerware.com/Welcome/TOS.aspx

1. Your Account

By ordering a Home Office account, you are authorizing Dinerware to access and use the information you provided for your Dinerware Restaurant POS account, including the full legal name of the Dinerware POS Restaurant System (“DRS”) account holder, a valid email address for a person authorized to make such purchases on behalf of the Dinerware account holder, and any additional information required to establish either account. In addition, to establish and maintain a Home Office account, you must maintain your DRS account in good standing. You acknowledge and agree that Dinerware may suspend or terminate your access and use of the Home Office Service if your DRS account is delinquent.

2. Payment, Refunds

Payment. You agree to pay for the Home Office Service plus any applicable taxes each month in advance. The monthly Service fee is billed in advance and is non-refundable. A valid credit card or your authorization for Dinerware to initiate and transfer funds by ACH transfer is required for all active Home Office accounts. If you wish to use ACH transfers to pay the account, please submit the attached ACH authorization form with your application. Dinerware will bill your credit card or initiate an ACH transfer pro rata for the first month of service if it does not fall on the first of the month. Thereafter, you will be billed automatically on the first day of every month. You are responsible for payment of any taxes, levies, or duties imposed by a taxing authority. There will be no refunds or credits for partial months of Service, or refunds for months unused with an open account.

Cancellation. You may cancel the Service at any time by emailing AccountingTeam@dinerware.com or sending a fax to 866-397-0972. Please specify that you would like to cancel your Home Office service and be sure to include the name of the restaurant, your name and title, and a dated signature. Your cancellation will take effect immediately and your account will not be charged again. All payments are non-refundable and there are no refunds or credits. We may change the Service fee or add new fees and charges from time to time, but we will give you notice of these changes by email more than a month in advance.

Changing Payment Method . You may change payment methods or update your payment information by emailing AccountingTeam@dinerware.com or faxing it to 866-397-0972. Dinerware will initiate payment on the first day of each month during the term. Regardless of payment method, all payments must be made an received by Dinerware within ten business (10) days of the due date (1st of the month), otherwise Dinerware may, and you acknowledge and agree that it may, suspend or terminate the Service until your account, including your DRS account, is paid and in good standing. Dinerware will charge you a $45 processing fee for any ACH transfer or credit card transaction that is declined.

3. Service

You agree to use the Service only in the course of managing a Dinerware Restaurant POS System (“DRS”) location which you have authorized access to.

4. Intellectual Property; Your Content

We claim no intellectual property rights over material you upload or otherwise provide using the Service. However, unless you are specifically granted the right and license to use a visual, software or other element found on the Home Office website, e.g., a color or page theme, you may not duplicate, copy, or reuse any portion of the Home Office site, including any HTML/CSS, layout, visual or design elements without the express written permission from Dinerware.

You understand and agree that Dinerware is not responsible for the Content posted on the Service by you.

All content, including all software, graphic, design or layout publicly available at http://homeoffice.dinerware.com, Dinerware.com or any affiliated site by Dinerware is owned or licensed by Dinerware, Inc. and subject to its or its licensor’s copyright.

5. Technical Support.

Technical support for Home Office services may be included in your Dinerware support plan. Please consult your Dinerware support plan or your authorized Dinerware representative to update your service plan to include Home Office support.

6. Suspension and Termination

Dinerware, in its sole discretion, may suspend or terminate your account, and refuse any and all current or future use of the Service, upon 30 days notice to you. You will not be billed for any month beginning after you have received a termination notice from Dinerware. Such termination of the Service will result in the deactivation or deletion of your Account and destruction of any content you have uploaded to your account.

7. Service Availability.

The service is provided on an “as available” basis, meaning Dinerware does not guarantee that the Service will be available to you or your users at all or any particular times or that it will be available to all Dinerware customers or your DRS locations equally. You understand that Dinerware uses third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service. All or any of these may fail at any time causing all or parts of the Service to become unavailable. You agree and understand that these events are or may be beyond Dinerware’s ability to control or repair, that the Service may become unavailable in whole or part as a result and that you are agreeing to accept this risk without recourse against Dinerware for any losses that may result.

8. Bandwidth Limitations.

If your bandwidth usage exceeds 250 MB/month, or significantly exceeds the average bandwidth usage, as determined by Dinerware, of other Home Office customers, we reserve the right to immediately disable your account or restrict your usage until you can reduce your bandwidth use.

9. No Unauthorized Modification of System

You must not modify, alter or hack the Service or use it in any way other than as arising in the ordinary course of managing the restaurant, hospitality or beverage service in conjunction with a Dinerware DRS system. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Dinerware. The use of any software, software enabled online service or other functionality provided by Dinerware under this agreement is limited solely to its use in conjunction with your Dinerware DRS and your agreement and compliance with the end user DRS software license (“EULA”). You agree not to use or access any third party software or service that alters the Service or DRS, unless and only to the extent specifically authorized by Dinerware’s prior written consent.

10. Technical Risks

You understand that to operate as intended, the Service transmits data, including your content and restaurant information, over various networks and transmission services, e.g., the internet protocol may be utilized by a wireless cellular network, that these networks may be outside of Dinerware’s control, that they may transfer data unencrypted and may change the data to conform to the technical requirements of connecting networks or devices.

11. Disclaimer of Warranties; Release

Dinerware does not warrant that: (i) the service will meet your specific requirements; (ii) the Service will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Service will be accurate or reliable; (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations; and, (v) any errors in the Service will be corrected.

DINERWARE MAKES NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF DESIGN, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE.

You expressly understand and agree that Dinerware will not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Dinerware has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) termination of your account; or (vi) any other matter relating to the service.

In addition to these disclaimers, you release Dinerware from any liability based upon a claim that use of the Home Office service, or use of the DRS in conjunction with use of the Home Office service, by you or a third party caused or enabled damages of any kind, including damages arising from data theft or loss, fraud, identity theft, loss of data protected by any privacy law or any monetary damages.

12. General Provisions

a. Notices. Notices under this Agreement shall be in writing and effective upon delivery if made by facsimile or electronically with a printed confirmation, to the address stated on the last page of this Agreement. A party may change the address for receiving notices by giving written notice to the other party, such change will be effective upon receipt.

b. Assignment. This Agreement is not assignable by Customer without the express prior written consent of Dinerware.

c. Force Majeure. Dinerware shall not be liable to Customer for delays or interruption in the furnishing the Services caused by circumstances beyond its reasonable control.

d. Complete Agreement. This Agreement represent the entire understanding of the parties with respect to the Services provided under this Agreement. In the event this Agreement conflicts with the DRS EULA, the terms of the EULA will be controlling.

e. Waiver. The waiver or failure of Dinerware to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.

f. Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.

h. Headings. The headings appearing herein are for convenience only.

i. Trademarks. Dinerware and Home Office are the trademarks of Dinerware, Inc. This agreement does not grant Customer, User, or any other person to use these marks except as anticipated by or incorporated into the Service. Customer agrees not to use the marks, including any nominative use arising from the marketing or sale of DRS or other Dinerware products except as expressly permitted in writing by Dinerware.

j. Governing Laws and Venue. This Agreement shall be construed under the laws of theState of Washington, without regard to its conflicts or choice of law principles. The parties consent to the exclusive jurisdiction and venue of King County, Washington for any action arising from this Agreement. Dinerware will be entitled, in addition to any other rights and remedies it may have, to reimbursement for all expenses it may incur in connection with any such action, including costs and reasonable attorneys’ fees.

By installing or using Dinerware Home Office Service, and/or by signing below, you acknowledge that you have read the Home Office Terms of Service and Dinerware End User License agreement, that you understand it, and that you agree to be bound unconditionally by its terms.



APPENDIX: DINERWARE End User License Agreement (EULA) (Dinerware Software License)

NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS OF USE CONTAINED IN SECTION 2, TRANSFERABILITY IN SECTION 4, WARRANTY IN SECTION 13, DISCLAIMERS IN SECTION 14, AND LIMITATION OFLIABILITY IN SECTION 15 AS WELL AS THE DISPUTE RESOLUTION PROVISIONS IN SECTION 18. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU OR THE ENTITY ON WHOSE BEHALF YOU ARE SIGNING. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT ACQUIRED AND USES THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE.

THE SOFTWARE IS LICENSED, NOT SOLD. DINERWARE OWNS ALL INTELLECTUAL PROPERTY IN THE SOFTWARE. DINERWARE PERMITS YOU TO INSTALL, USE, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.


1. Definitions

1.1 “Dinerware” means Dinerware, Inc., a Washington corporation with principal offices located at 400 North 34th Street, Suite 200, Seattle, WA 98103.

1.2 “Dinerware Web Services” or “Dinerware Online Services” means any software or support services enabled or provided by using the Software, on a subscription, per use, or other basis, by software residing on hardware maintained by Dinerware and accessible to Dinerware customers using the Internet or other data transfer protocols.

1.3 “Internal Network” means a private, proprietary network of computing resources accessible only by employees and individual contractors (i.e., temporary employees) of Licensee and used in the operation of the restaurant at a Location. Internal Network does not include access or use of the Internet, a larger computing network used by the Licensee or any affiliated business entity, or any other network community.

1.4. “Invoice” means the bill for payment for goods and services purchased from Dinerware by Licensee pursuant to a Purchase and Sale Agreement.

1.5 “License Fee” shall mean the payment due for the Software licenses specified in the Purchase and Sale Agreement, and any related Invoice, between Dinerware and Licensee.

1.6 “Licensee” means the person or entity purchasing this Software license as part of a Purchase and Sale Agreement between the person or entity and Dinerware for use at a Location.

1.7 “Location” means the restaurant operation at the geographic address set forth in the Purchase and Sale Agreement and Invoice.

1.8 “Minor Release” means all software provided by Dinerware that makes minor improvements, corrections, modifications, alterations, extensions, bug fixes, patches, and optimization to any licensed software.

1.9 “Permitted Number” means one (1) unless set forth otherwise in (i) the Purchase and Sale Agreement and Invoice made between Dinerware and Licensee, or (ii) in a valid volume license (e.g., a multi-Location license) granted by Dinerware or authorized Dinerware reseller or OEM partner.

1.10 “Purchase and Sale Agreement” or “PSA” means Licensee’s contract to purchase Dinerware goods and services, including this License, from Dinerware or authorized Dinerware reseller or OEM partner.

1.11 “Server” means an an application program residing on computer hardware at the Location that accepts Workstation connections over the Internal Network in order to service requests for data processing and information by sending responses to Workstation clients also located at the Location.

1.12 “Software” means: (a) all of the information with which this Software License is provided pursuant to a PSA including, but not limited to, (i) Dinerware object code or third party software files and other computer information; (ii) related explanatory written materials and files (“Documentation”); and (iii) user interface graphics and other elements; and (b) any Minor Releases and upgrades, updates and additions to, such information, provided to Licensee by Dinerware at any time, to the extent not provided under a separate agreement (collectively, “Updates” ).

1.13 “Workstation” means a computer terminal, handheld device, tablet or other input device used at the Location to access the Software on the Server over the Internal Network or from an external location using the separately-licensed Dinerware Home Office service.

2. Software License

Provided Licensee obtained the Software from Dinerware or one of its authorized reseller or OEM partners, has fully paid all Licensee Fees due and payable, and as long as Licensee complies with the terms of this Software License, Dinerware grants Licensee a personal, limited, non-assignable, non-transferable, non-exclusive, nonsublicensable copyright license to use, perform and display this copy of the Software to provide point-of-sale and related restaurant services, as well as for any other purposes described in the Documentation, as follows:

2.1 Licenses. Dinerware grants Licensee the right to use the Software in two ways:

2.1.1 Server License. One copy of the Software may be installed and used on the Permitted Number of Servers within the Internal Network at the Location. Only Software installed on Workstations at the Location may be used to access the Server at the Location.

2.1.2 Workstation License. One copy of the Software may be installed and used on each of the Permitted Number of Workstations used to access the Server at the Location. Only Software installed on a Server at the Location may be used to respond to requests from Workstations at the Location.

2.2 License Keys. A license key is required to install and operate the Software. Additional license keys for additional Servers or Workstations may be acquired from Dinerware at Dinerware’s then current rates. THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO MANAGE LICENSES AND TO PREVENT UNAUTHORIZED USE AND COPYING. SUCH TECHNOLOGY MAY PREVENT USE OF THE SOFTWARE IF LICENSEE DOES NOT FOLLOW THE ACTIVATION, INSTALLATION, AND/OR LICENSE MANAGEMENT PROCESS DESCRIBED IN THE SOFTWARE AND DOCUMENTATION. LICENSEE ACKNOWLEDGES AND AGREES TO THE USE AND INSTALLATION OF SUCH TECHNOLOGY. LICENSEE AGREES THAT THE USE, INCLUDING THE UNANTICIPATED MALFUNCTION, OF SUCH TECHNOLOGY RENDERING OTHERWISE FUNCTIONAL SOFTWARE USED IN FULL COMPLIANCE WITH THIS LICENSE DOES NOT GIVE RISE TO AN ACTIONABLE CLAIM.

3. Intellectual Property Ownership

3.1 The Software and any permitted copies, are the intellectual property of and owned by Dinerware. No other rights are transferred or licensed herein. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Dinerware. The Software, including but not limited to any code, programming language, database, communications or code protocol or framework, instructions, images, photographs, animations, video, audio, music, text, information or applets incorporated into the Software, is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. This agreement does not grant Licensee any intellectual property rights in the Software. All rights not expressly granted are reserved by Dinerware.

3.2 Other Intellectual Property. All title, copyrights and other intellectual property ownership rights in and to the Software, any copies of the Software, the content, form or manifestation embodied in the Software as defined by any law anywhere as intellecutal property, and all derivative works of the Software are owned by Dinerware.

4. Restrictions

4.1 Notices. Licensee will not copy the Software except as set forth in this Software License Agreement. Any permitted copy of the Software that Licensee makes must contain this software license and the same copyright and other proprietary notices that appear on or in the Software.

4.2 No Modifications. Except as permitted in Section 9, Licensee may not modify, adapt or translate the Software. Under no circumstances will Licensee reverse engineer, decompile, disassemble, derive source code from, or create derivative works based on the Software, or otherwise attempt to discover the source code of the Software except to the extent expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.

4.3 No Transfer. LICENSEE MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN, DISTRIBUTE OR TRANSFER ITS RIGHTS IN THE SOFTWARE, OR ANY PORTION OF THE SOFTWARE, COPY OR ALLOW TO BE COPIED TO A COMPUTER OTHER THAN A LICENSED SERVER OR WORKSTATION EXCEPT AS PROVIDED IN THIS SECTION. With Dinerware’s prior written consent, Licensee may permanently transfer all of its rights to use the Software to another entity provided that: (a) Licensee’s account with Dinerware is current and has been paid in full; (b) it transfers (i) this agreement, (ii) the serial number(s), (iii) any physical media containing the Software provided by Dinerware or its authorized distributor, and (iv) all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, Updates and prior versions; (c) Licensee retains no Software, Updates or any copies of the Software or Updates, including backups and copies stored on any media, computer or other device following such transfer; (d) Licensee obtains Dinerware’s written consent to the transfer at least fifteen (15) days in advance of the transfer; (e) Dinerware has received any applicable transfer fee from either Licensee or the receiving party; (f) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which Licensee purchased a valid license to the Software.

4.4 Use at Location Only. It is expressly understood and agreed that the Software shall only be used at the Location or Locations identified in the Purchase and Sale Agreement and related Invoice. Licensee will acquire a Server or Workstation licenses as appropriate for each copy of the Software to be used at any Location. Use of the Software at any other geographic location is a Transfer subject to the restrictions of Section 4.3 of this Software License.

4.5 Software Multipliers. Use of software or hardware that increases the number of computing devices, including Workstations, capable of sending data to the Software, grants access to the Software from locations other than the Location, or reduces the number of Workstations needed to access or utilize the Software as intended in ordinary use is prohibited and a breach of this Software License.

5. Updates

5.1 Updates. If the Software is an Update to a previous version of Dinerware Software, Licensee must possess a valid license to such previous version in order to use the Update. After Licensee installs the Update, Licensee may continue to use any previous version in accordance with its Software License agreement only if (a) the Update and all previous versions are installed on the same device and (b) Licensee acknowledges that any obligation Dinerware may have to support the previous version(s) may be ended upon availability of the Update. No other use of the previous version(s) is permitted after installation of an Update. Updates may be licensed to Licensee by Dinerware with additional or different license terms. By using such Updates, Licensee agrees to such terms.

5.2 Push Updates. Dinerware may, and Licensee acknowledges and agrees that it may, upload and install certain Minor Releases to the Software on the Licensed Server and Licensed Workstations automatically and without Licensee’s prior knowledge or consent. Licensee further acknowledges and agrees that the use of such Minor Releases, or any damages caused their installation and use, become part of the Software and are governed by this Software License, including in particular its Limitation of Liability clause.

5.3 Additional Support. Dinerware is under no obligation to provide Updates, repair defects in the Software or otherwise provide Licensee support of any kind whatsoever. If Dinerware does provide such support, it shall be considered part of and subject to the terms of this Software License.

6. Pre-release Software, Additional Terms

If the Software is pre-commercial release or beta software (“Prerelease Software”), then this Section applies. Pre-release Software is not software Dinerware considers suitable for commercial release and may contain bugs, errors and other problems that could cause system or other failures and data loss. Dinerware may never commercially release the Pre-release Software. If Pre-release Software was acquired pursuant to a separate written agreement, such as the Dinerware Beta Evaluation Agreement, Licensee’s use of the Software is also governed by such agreement. Licensee will return or destroy all copies of Pre-release Software upon Dinerware’s request or the commercial release of the Pre-release Software. PRE-RELEASE SOFTWARE IS DISTRIBUTED AS IS. YOUR USE OF PRE-RELEASE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. SEE SECTIONS 13 THROUGH 15 FOR WARRANTY, DISCLAIMERS, AND LIABILITY LIMITATIONS WHICH ALSO GOVERN PRE-RELEASE SOFTWARE.

7. Demonstration Software, Additional Terms

If the Software is evaluation or demonstration software (“Demonstration Software”), then the following Section applies. The Demonstration Software may contain limited functionality and is to be used for demonstration and evaluation purposes only and not for Licensee’s commercial purposes. YOUR USE OF DEMONSTRATION SOFTWARE IS ENTIRELY AT YOUR OWN RISK AND ANY DAMAGES CAUSED BY ITS USE ARE YOUR RESPONSBILITY. SEE SECTIONS 13 THROUGH 15 FOR WARRANTY, DISCLAIMERS, AND LIABILITY LIMITATIONS WHICH GOVERN DEMONSTRATION SOFTWARE.

8. Online Access, Third Party Web Sites

The Software may rely upon or facilitate access to websites or other online services maintained by Dinerware partners, affiliates or other third parties offering goods, information, software and services, e.g., scheduling or reservation services (“Third Party Services”). Licensee’s access to and use of any Third Party Services is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such services. In its sole discretion, Dinerware may at any time, for any reason, modify, disable or bar the availability, use or functionality of any Third Party Services if such access or use is in conjunction with or enabled by the Software. Dinerware does not control, endorse or accept responsibility for any Third Party Services. Any dealings with any third party in connection with Third Party Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between Licensee and such third party. With respect to Dinerware, Licensee uses any Third Party Services at its own risk.

9. Scripting

The Software may include components or functionality that may be modified or extended by software scripts. Licensee may install and use such scripts at its own risk. Licensee agrees to indemnify, hold harmless and defend Dinerware from and against any loss, damage, claims or lawsuits, including attorneys’ fees, that arise or result from Licensee’s use of such scripts.

10. Security, Privacy and User Information

10.1 Security of Software Product. Licensee is responsible for the security of all data stored on its Server and Workstations as a result of the operation of the Software by Licensee, including without limitation, transaction data, payment card numbers, employee or customer-identifiable data, and merchant data. No warranty or representation is made that the Software conforms to any specific security standard or protocol or that the Software provides any protection from data theft or mishandling. Licensee bears the sole responsibility for any damages awarded from a claim based on loss or handling of data, the sole responsibility for the secure operation of any equipment on which the Software is installed and operated, and all risk of loss, mishandling or theft arising from transmission of data by the Software during the normal course of Licensee’s operations.

10.2 Privacy. License is responsible for, and will hold Dinerware harmless and defend Dinerware from, all damages arising from a claim by any person or entity that Licensee’s use of the Software disclosed information statutorily protected as private, regardless whether such person or entity is a Licensee customer, employee or other third party or the legal basis for such claim.

10.3 Dinerware’s Use of Information. Dinerware may obtain technical information as part of Licensee’s installation and use of the Software, Licensee agrees Dinerware may use such information for its business purposes, including for product support and development. Dinerware will not utilize such technical information in a form that personally identifies the Licensee or Licensee’s users. Such technical information includes but is not limited to information regarding how the Software is used, processing data such as processor loads and Software performance reports. Licensee agrees that Dinerware’s collection and use of such information does not give rise to an actionable claim against Dinerware and releases Dinerware from any such claim.

10.4 Licensee Information. Licensee waives all causes of action or claims based upon the misuse, alteration, loss or reliance on information entered by Licensee, including all information entered, modified or deleted by Licensee’s employees, agents, software or in any other way under the authority of Licensee, in the course of using the Software. The Software does not verify any data and Dinerware disclaims any obligation to do so. Licensee agrees and acknowledges that the Software is not intended or designed to be relied upon for tax, wage and hour, accounting, regulatory compliance and similar reporting purposes, and that all reports, compilation or other information generated by the Software based upon Licensee’s information entered into and used by the Software must be independently reviewed and verified by an accounting, tax or similar professional and that Licensee will in fact verify such information. Licensee warrants, represents and agrees that Licensee is responsible for the accuracy of all information used in the course of using the Software, including any entered by Dinerware or an authorized Dinerware reseller, in the course of training, demonstration, service or sales of the Dinerware Restaurant System.

DINERWARE DISCLAIMS THE ACCURACY, ADEQUACY, OR COMPLETENESS OF ANY DATA USED OR GENERATED BY THE SOFTWARE AND WILL NOT BE HELD LIABLE FOR ANY DAMAGES ARISING FROM LICENSEE’S USE OF THE INFORMATION. LICENSEE AGREES THAT ITS USE OF REPORTS, TRANSACTIONS AND DATA GENERATED, USED OR PROVIDED BY THE SOFTWARE, INCLUDING ANY USE OR RELIANCE TO COMPLY WITH TAX, WAGE AND HOUR, LICENSING OR ANY SIMILAR PURPOSE, IS AT LICENSEE’S RISK. DINERWARE SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS OR OTHER DEFECTS IN SUCH DATA, DELAYS OR INTERRUPTIONS IN THE TRANSMISSION, REPORTING, MANIPULATION OR INTERPRETATION OF SUCH DATA AND FOR ANY ACTIONS TAKEN BY LICENSEE RELYING ON SUCH INFORMATION.

11. Integrated Products

11.1 Third Party Devices and Software. Licensee understands and agrees that any additional applications, devices or interfaces designed to interact with the Software, whether by the user interface, Dinerware SDK, online services or any other commercially published or unpublished applications, system or interfaces to the Software are the sole responsibility and obligation of Licensee. Licensee bears the entire risk of any damages arising from the use of such applications, devices or interfaces.

11.2 Public Software Restriction. Your license rights to the Software is conditioned upon your not using the Software with any third party software, unless provided by Dinerware, that creates, or attempts to create, obligations for Dinerware or it’s licensors with respect to the Software or grants, or purports to grant, to any third party any rights or immunities under Dinerware’s or its licensor’s intellectual property or proprietary rights in the Software or derivative work thereof. Such other software includes, without limitation, any software that requires as a condition of use, modification and/or distribution of Dinerware software under terms other than those set forth in this Agreement.

12. Conflicting Terms

The terms and conditions of any purchase order, invoice, acknowledgement form, or similar document provided by Licensee in the course of acquiring or upgrading the Software inconsistent with this license do not amend, modify, add to, or supersede the terms and conditions of this Software License.

13. Limited Warranty

Except as may be provided otherwise in Section 14, Dinerware warrants that the Software will perform substantially in accordance with the Documentation for the thirty (30) day period following the first installation and use of the Software when correctly installed and used on the provided or recommended hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO PATCHES, SCRIPTS, PRE-RELEASE (BETA), DEMONSTRATION VERSIONS OF THE SOFTWARE OR ONLINE SERVICES, IF ANY. All warranty claims must be made, along with proof of purchase, to the Dinerware Customer Support Department within such thirty (30) day period. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Dinerware and its affiliates and Licensee’s exclusive remedy will be limited to either, at Dinerware’s option, replacement of the Software or refund of the license fee Licensee paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

14. Disclaimer

THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY DINERWARE AND IS THE SOLE AND EXCLUSIVE REMEDY FOR DINERWARE’S BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT THE SAME CANNOT OR MAY NOT BE EXCLUDED, WAIVED OR LIMITED UNDER THE LAW APPLICABLE IN LICENSEE’S JURISDICTION, DINERWARE PROVIDES THE SOFTWARE AND ANY ONLINE SERVICES AS IS. DINERWARE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID OR MAY BE LIMITED IN SOME STATES.

15. Limitation Of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DINERWARE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF DINERWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN ANY CASE, DINERWARE’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY SHALL BE, AT DINERWARE’S OPTION, EITHER (A) RETURN OF THE PRICE PAID FOR THE SOFTWARE, OR (B) REPAIR OR REPLACEMENT OF THE SOFTWARE OR HARDWARE WHICH IS RETURNED TO DINERWARE. THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE OR HARDWARE HAS RESULTED FROM ACCIDENT, ABUSE, OR MISAPPLICATION. HOWEVER, IF LICENSEE HAS ENTERED INTO A DINERWARE SUPPORT SERVICES AGREEMENT, DINERWARE’S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT.

16. Termination

16.1 Survival. Sections 3, 4, 12, 13, 14, 15, 17, 18 and 19 will survive termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this Agreement.

16.2 Termination. This License is effective until terminated. This License will terminate automatically without notice from Dinerware if Licensee fails to comply with any provision of this License including payment of any License Fee when due. Upon termination Licensee shall return to Dinerware the Documentation and all copies of the Software.

17. Export Rules.

Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively, “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, Licensee represents and warrants that it is not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation Iran, Syria, Sudan, Libya, Cuba and North Korea) and that Licensee is not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this agreement.

18. Dispute Resolution

Any dispute, controversy, or claim against Dinerware arising out of or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, or any related purchase shall be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its rules (www.adr.org) in King County, Washington. The arbitration will be conducted before a single arbitrator, and will be limited solely to the dispute or controversy between Licensee and Dinerware. Any decision rendered in such arbitration proceedings will be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction. The arbitrator shall not award either party special, exemplary, consequential, punitive, incidental or indirect damages, or attorneys’ fees and each party irrevocably waives any such right to recover such damages. The parties will share the costs of the arbitration, (including the arbitrator’s fees, if any) in the proportion that the final award bears to the amount of the initial claim. No action, regardless of form, arising out of or in conjunction with the subject matter of this Agreement may be brought by either party more than one (1) year after the cause of action arose.

19. Governing Law and Choice of Jurisdiction

Notwithstanding Section 17 above, this Agreement is governed by the laws of the State of Washington. For any dispute arising out of or related to this Agreement or the Software, Licensee agrees to the exclusive jurisdiction and venue in the state and federal courts sitting in King County, Washington if a license to the Software is purchased in the United States, Canada, Mexico or South America; the non-exclusive jurisdiction of Tokyo District Court in Japan, if a license to the Software is purchased in Japan, China, Korea, or other Southeast Asian country; or the non-exclusive jurisdiction of the competent courts of London, England, if a license to the Software is purchased in the European Union or in any jurisdiction not described above. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

20. General Provisions

If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement may only be modified by a writing signed by an authorized officer of Dinerware. The English version of this agreement will be the version used when interpreting or construing this agreement. This is the entire agreement between Dinerware and Licensee relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.


By installing or using Dinerware POS Service, and/or by signing below, you acknowledge that you have read this license agreement, that you understand it, and that you agree to be bound unconditionally by its terms.