MealSuite Inc. and its affiliates (“MealSuite”) develop, provide access to, license, support and provide professional services related to cloud based foodservice technology platforms (“Services”).
1. Acceptance of Terms
This Terms of Service is between the customer using Services (“Customer”, “you”, “your”) and MealSuite (“MealSuite”, “we”, “us”, “our”).
2. MealSuite Services
MealSuite, either directly to the Customer, or through a third-party partner, may provide the following Services:
2.1.1 Software Access:a non-transferable, non-exclusive, non-sublicensable limited license to the applicable MealSuite intellectual property, to access and use MealSuites’ cloud based foodservice technology platform (“Software”) via the internet as further described in the applicable order form or quotation. Licensure is limited to specific functionality as quoted and paid for by Customer;
2.1.2 Professional Services.
training, consulting, support and professional services (“Professional Services”). MealSuite will provide the Professional Services in a professional workmanlike manner;
2.1.3 Equipment, Sensors and Consumables.
2.1.4 MealSuite Data.
depending on purchased Software functionality, the country in which the Customer operates, and particulars with respect to a reselling partner, the Software may come with a pre-built database of menus and/or recipes spread to designated therapeutic diets (“Menu Data”). Additionally, a library of nutrient files may be available, which includes data from public (ie USDA, CNF) and privately compiled data sources including commercial data brokers and partnerships with various food manufacturers (“Nutrient Data”) (Menu Data and Nutrient Data are collectively referred to as “Provided Data”). Provided Data is maintained per our
Data Standards Agreement
which can be found at
MealSuite is not responsible for the entry of customer specific data or the accuracy of the system data including but not limited to the Provided Data;
2.1.5 Customer Support.
customer support via help desk is available to assist Customer’s authorized contacts with the MealSuite Services.
Customer also understands and agrees that any changes that occur by a third party technology can impact the quality, timing, or general availability of data moving between the Software and the third-party systems and that MealSuite disclaims any and all responsibility and/or liability for any loss of data, performance failure, delay, inaccuracy, harm or loss of any manner, or type of error resulting from such changes.
2.2 Aggregate Usage Data.
MealSuite may use aggregate data (including deidentified data) collected by MealSuite with respect to Customer’s and Users’ access to and use of the Services without the prior written consent of Customer or Users including: (i) for the analysis, development, forecasting, machine learning, and provision of the Services; (ii) for recordkeeping, fee calculation, internal reporting, support, and other legitimate business purposes; and (iii) to report the number and types of transactions and other statistical information.
3. Customer Responsibilities
Customer is solely responsible for ensuring all, including but not limited to employees, consultants, and third-parties, who access the Services through the Customer (“User”) are in compliance with this Terms of Service and all applicable policies, schedules, addenda, and agreements referenced herein. The Customer and Users are responsible for the following:
ensuring that all networks and hardware used is in compliance with all Software requirements and maintaining all network and operating system(s) compliance generally as further described at:
ensuring Users are adequately trained to ensure safe and effective use of the MealSuite Software and the Software is utilized for its intended uses;
immediately notifying MealSuite of any suspected material error with the Software, security or privacy breaches, and/or User access change requirements;
on-going validation that all Services are being used in compliance with all applicable laws, including but not limited to data privacy, security and dietary regulatory requirements;
maintaining appropriate administrative, physical and technical safeguards for protecting the security, privacy and integrity of data in the Software; and
maintaining the confidentiality of its passwords, regularly change them, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefore and promptly notify MealSuite;
3.1.7 MealSuite’s ability to provide Professional Services requires the co‐operation of Customer in the form of the provision of timely responses to requests for information, and the prompt and timely performance by Customer of its obligations. In the event that Customer fails to perform any of its responsibilities or obligations in a timely manner, MealSuite may be delayed in its fulfilment of its obligations and additional costs, or expenses incurred by MealSuite may be billed to Customer.
4. Prohibited Uses.
4.1 Intellectual Property.
Customer acknowledges that the Services and accompanying materials (“Materials”) embody valuable confidential and proprietary information. Customer agrees that the Software and the Materials (including, but not limited to, all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are the exclusive property of MealSuite, or of third parties from whom MealSuite has obtained rights to use certain materials contained therein. MealSuite and such third parties shall retain all rights and title, to the extent of their respective interests, to all proprietary rights in the Services and Materials. Customer therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by the Services; (ii) it shall treat Software as confidential; (iii) it shall not use, copy, or disclose the same, nor permit any of its personnel to do so, except as specifically authorized by this Terms of Service; and (iv) it shall use reasonable care to safeguard the confidentiality of these items. Customer shall only grant access to the Software to its Users.
4.2 Prohibited Activities.
Customer shall not, and shall cause its Users not to:
make services available to anyone other than its Users;
copy or use the Services, including the Software, and/or the data contained therein for the purpose of developing a similar software;
create or enable the creation of derivative works, modifications, or adaptations of the Software, or attempt to recompile, reverse engineer or disassemble the Software;
use any robot, spider, web-crawlers, data scraping/screen scraping/web scraping, or other automatic device or program or manual process to monitor, copy or reproduce the Software or portions or content thereof (except as made available by MealSuite as features of the Software);
intentionally interfere with the functionality of the Software by (i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the system; (ii) modifying the Software or interfering or attempting to interfere with the proper operation of the Software or the use of the Software by third parties, including through the use of any device, software or routine; or (iii) using the Software to disrupt the servers or networks connected to the web server;
violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission through the Software of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content; or
export datasets for use in another system.
4.3 Remedy for Breach.
Customer acknowledges that compliance with the restrictive covenants contained in this Section 4are necessary to protect MealSuite’s substantial investment in proprietary information. Customer recognizes the irreparable harm and continual damage that would result from a breach of these covenants for which money damages may not be adequate. In the event Customer breaches, threatens to breach, or willfully violates any of the covenants contained herein, MealSuite shall be entitled to any legal or equitable relief available, including, without limitation, specific performance, immediate preliminary and/or permanent injunctive relief, and money damages insofar as they can be determined.
5. Confidential Information
5.1 Definition of Confidential Information. "Confidential Information"means all confidential information disclosed by Customer or MealSuite to the other party, whether orally or in writing, which is designated as confidential or which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes business and marketing plans, technology and technical information, product plans and designs, and business processes including but not limited to MealSuite Software and pricing. Confidential Information (other than protected health information) does not include any information which: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to the disclosing party; (iii) is received from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to any Confidential Information.
5.2 Protection of Confidential Information.
The receiving party shall: (i) use the same degree of care to protect Confidential Information which it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not use any Confidential Information for any purpose outside the scope of this Terms of Service; and (ii) limit access to Confidential Information to those of its and its affiliates', employees, contractors and agents who need such access for purposes consistent with this Terms of Service and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those set forth in this Terms of Service. Unless legally compelled to do so or permitted by this Terms of Service, neither party shall disclose the other party’s Confidential Information to any third party (other than its affiliates, contractors, agents and their respective legal counsel) without the other party's prior written consent.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SERVICE, INCLUDING THE SOFTWARE, ITS INTERFACES, ANY RELATED EQUIPMENT, AND ANY MATERIALS ARE PROVIDED “AS IS” AND MEALSUITE AND ANY THIRD PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, THE SERVICES FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, MEALSUITE MAKES NO REPRESENTATION OR WARRANTY (I) THAT CUSTOMER’S USE OF THE SERVICES SHALL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS, INCLUDING STATUS OR REGULATIONS AND MEALSUITE ASSUMES NO RESPONSIBILITY FOR THE ACCURACY, UP-TO-DATE STATUS, OR COMPLETENESS OF THE RESIDENT OR PATIENT DATA, NOR THE RESIDENT/PATIENT DATA’S COMPLIANCE WITH LEGAL OBLIGATIONS, (II) AS TO THE RESULTS TO BE ATTAINED BY CUSTOMER OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SERVICES; OR (III) THAT ALL USES THAT CAN BE MADE OF THE SERVICES INCLUDING THE SOFTWARE COMPLY WITH APPLICABLE LAW; RATHER, IT IS CUSTOMER’S RESPONSIBILITY TO CONFORM ITS USE OF THE SERVICES WITH THE LAW. CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES, SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SERVICES. EACH PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER EXCEPT AS SPECIFICALLY SET FORTH IN THIS TERMS OF SERVICE.
CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT THE SERVICES AND RESIDENT/PATIENT DATA ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT, OR CARE OF PERSONS BY MEALSUITE. THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT, AND SHOULD NOT BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY MEDICAL CONDITION WITHOUT THE SUPERVISION OF A DOCTOR OR QUALIFIED HEALTHCARE PROVIDER.
7.1 Indemnity by Customer.
Customer shall defend (at MealSuite’s election), hold harmless and indemnify MealSuite (and any party controlling, controlled by or under common control with MealSuite), and their respective directors, officers and employees (the “Mealsuite Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agencies against MealSuite Indemnified Parties to the extent that it is based on any claim with respect to, or arising out of, customer data, or Customer’s use of the Services including the Software. Customer shall pay all costs incurred by and damages finally awarded against MealSuite.
7.2 Indemnification by MealSuite.
MealSuite will indemnify and defend Customer against any claims, demands, suits, actions, proceedings, or judgments (collectively, "Claims") made or brought against Customer by a third party alleging that Customer’s use of the Software as permitted under these Terms of Services infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"). MealSuite will indemnify Customer against the resulting direct damages and attorneys’ fees finally awarded against Customer by a court of competent jurisdiction or as a result of a court approved settlement of a Claim Against Customer, provided that Customer must: (a) promptly give MealSuite written notice of the Claim Against Customer; (b) give MealSuite sole control of the defense and settlement of the Claim Against Customer (provided that MealSuite may not settle any Claim Against Customer unless the settlement releases Customer of all liability); and (c) provide MealSuite all reasonable assistance. In the event of a Claim Against Customer, or if MealSuite reasonably believes the Services may infringe or misappropriate the rights of any third party, MealSuite may in its discretion and at no cost to Customer: (i) modify the Services so that they no longer infringe or misappropriate the applicable third-party intellectual property; (ii) obtain a license for Customer’s continued use of the Services in accordance with this Terms of Service; or (iii) terminate these Terms of Service.
7.3 Indemnity Exclusions.
The indemnification obligations set forth in Section 7.2 do not apply to Claims to the extent that they arise from: (a) Customer’s use of the Services in violation of these Terms of Service or applicable law; (b) Customer’s negligent acts or omissions; (c) Customer’s use of the Services after MealSuite notifies Customer to discontinue use because of an infringement claim; or (d) modifications to the Services or use of the Services in combination with any software, application or service not made or provided by MealSuite. The indemnification obligations set forth in Section 7.2 do not apply to Claims to the extent Customer is prohibited by statute or regulation from providing them.
8. Limitation of Damages
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEALSUITE BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, AGGRAVATED, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; OR (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA; IN EACH CASE REGARDLESS OF WHETHER MEALSUITE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEALSUITE'S AGGREGATE LIABILITY RELATED TO THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID FOR THE SERVICES IN THE 1 YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000, WHICHEVER IS MORE.
9.1 Governing Law.These Terms of Service shall be governed by and construed in accordance with the state laws of Delaware and the federal laws of the United States applicable therein and each of the Parties hereto agrees irrevocably to conform to the exclusive jurisdiction of the courts of such state.
9.2 Entire Agreement, Waiver and Amendment.
As between Customer and MealSuite, including all quotes/order Forms, exhibits, schedules and addenda attached or incorporated by reference, constitutes the entire agreement between Customer and MealSuite and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. Unless signed by Customer and MealSuite any contract or agreement that says anything expressly to the contrary, to the extent of any conflict or inconsistency between the provisions in the body of these Terms of Service. No purported amendment or waiver of any right, term or condition of these Terms of Service will be valid unless in writing and signed by each party’s authorized representative. Unless explicitly agreed upon in writing with an authorized signatory of MealSuite, the Customer agrees that by using the Software, signing the sales order or similar document, or proceeding with a purchase, the Customer is hereby agreeing to these Terms of Service.
9.3 Headings for Convenience Only.
The division of these Terms of Service into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of this Terms of Service.
For these Terms of Service: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to these Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders.
If any article, section or any portion of any section of these Terms of Service is determined to be unenforceable or invalid for any reason whatsoever that unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of these Terms of Service and such unenforceable or invalid article, section or portion thereof shall be severed from the remainder of these Terms of Service.