Pricing and Licences Agreement
This RestoMetrix Pricing and Licences Agreement sets forth the pricing and term for a license between RestoMetrix and the undersigned (“you” or “your”) for the use of the software offered for licensing in this Agreement (“Software”).
Your use of the Software is expressly conditioned upon your agreement to and compliance with the terms and conditions of the RestoMetrix Terms of Service. The complete text of the EULA may be found at https://www.restometrix.com/terms-of-service/ (or such other URL as RestoMetrix may designate from time to time).
This Agreement shall be effective when you buy a product or a service from RestoMetrix. Depending on the type of license you select for purchase, your license to use the Software shall continue (the “Term”) for a month-to-month term, or for one year, two years or three years from the date the license is activated (“Activation Date”). RestoMetrix may elect to provide or not provide, licenses or license renewals in its sole discretion.
2. Monthly Licenses
RestoMetrix monthly “Billing Cycle” begins on the day that you purchase a product or a service, and ends after 30 days. Based on the Activation Date, your first invoice may be prorated depending on when the Activation Date occurred during the Billing Cycle. Thereafter, your primary credit card on file will be automatically charged at the end of each Billing Cycle for each of your active Monthly Licenses until the license is canceled.
Initial license cancellation requests made via your Account Panel within the first 72 hours of the initial license purchase will be processed immediately, and a credit for the purchase price will be issued. Monthly license cancellation requests made after seventy-two (72) hours of their initial purchase must be made before the beginning of the next Billing Cycle in order to avoid the automatic renewal of the license. Cancellations made during a Billing Cycle will take effect at the end of that Billing Cycle. If you wish to cancel before you are charged for the next Billing Cycle, please cancel the licenses at your Account Panel before the start of the next Billing Cycle.
Please Note: If you cancel a monthly license, you will not be able to purchase another license with the IP address associated with the canceled license for a period of thirty (30) days.
3. Yearly Licenses
RestoMetrix Yearly “Annual Cycle” begins on the day that you purchase a product or a service, and ends after 365 days. Based on the Activation Date, your first invoice may be prorated depending on when the Activation Date occurred during the Annual Cycle. Thereafter, your primary credit card on file will be automatically charged at the end of each Annual Cycle for each of your active Yearly Licenses until the license is canceled.
Initial license cancellation requests made via your Account Panel within the first 72 hours of the initial license purchase will be processed immediately, and a credit for the purchase price will be issued. Yearly License cancellation requests made after seventy-two (72) hours of their initial purchase must be made before the beginning of the next Annual Cycle in order to avoid the automatic renewal of the license. Cancellations made during an Annual Cycle will take effect at the end of that Annual Cycle. If you wish to cancel before you are charged for the next Annual Cycle, please cancel the licenses at your Account Panel before the start of the next Annual Cycle.
Please Note: If you cancel a Yearly License, you will not be able to purchase another license with the IP address associated with the canceled license for a period of thirty (30) days.
4. Description of License and Support
The license granted by the Pricing and Licences Agreement is limited to one stand-alone server or one Virtual Private Server. Such a license allows you to host as many domain names on your server as it can effectively handle.
Additionally, licenses purchased directly from RestoMetrix include Priority Support (see Section 5 below) and free Updates to the Software during the Term.
5. Priority Technical Support
During the Term, you may submit a commercially reasonable number of technical support Incidents (as determined by RestoMetrix in its sole discretion) through the RestoMetrix Customer Portal. The technical support services are only for questions or issues relating to the Software or third-party software included with the Software. As set forth in the Tech Agreement, Priority Support does not include server problems such as operating system kernel upgrades or other issues not related to the Software. Questions regarding the functionality of the Software or other frequently asked questions can many times be answered by using our documentation, FAQ section, and our user forums. If you cannot find the answers to your questions in any of these areas, you can submit a support request so that our technical support department can help you. This can be done by submitting a support ticket at https://restometrix.biz/whmcs/contact.php. RestoMetrix technical support services and any technical support or advice provided by RestoMetrix via the website or user forums are provided by RestoMetrix subject to the Terms of Service. RestoMetrix shall provide the technical support services solely during the Term of this Agreement.
6. Payment & Payment Methods
Please understand that all prices are subject to change before the next Billing Cycle. RestoMetrix will use reasonable efforts to notify you of any changes in pricing, however, it is your responsibility to understand and comply with Section 11 of this Agreement regarding all possible changes. License discounts cannot be used with any other promotions or offer unless otherwise noted. If you have any questions at all regarding licensing or your account, please direct all inquiries to firstname.lastname@example.org.
Payment of the applicable license fee or non-refundable processing fee can be made by using one of the payment methods below. RestoMetrix may elect to change or withdraw existing discount programs and to provide or not provide, licenses or license renewals in its sole discretion.
- Stripe: Payment by Visa, MasterCard, or American Express is the required payment method for all Monthly licenses.
- PayPal: email@example.com
Please note that if RestoMetrix does not verify your purchase within 72 hours of the order date, the order will be canceled and you will have to resubmit your order. Once an order is submitted from our website, your license will automatically activate while your order is pending review. RestoMetrix does not issue automatic license activations for additional licenses, specially priced licenses, or licenses ordered off-line. If the order is canceled, the automatic activation will expire.
Yearly Licenses are non-refundable. No refunds will be given for processing fees of SSL Certificates or the RestoMetrix™ Restaurant Management Programs Essentials, Professional, and Premium.
Refund requests for Monthly Licenses must be made within the first 72 hours of your purchase. The option to modify your monthly license purchase is
available via your Account Panel and will allow the RestoMetrix system to update the order amount based on the changes made, providing an automatic refund. All other cancellations will take place at the end of the current Billing Cycle.
8. New User Offer of Free Domain Name and 30-Day Money-Back Guarantee in the Web Hosting plans.
The promotional offer of the free domain name which includes in the purchase of Advanced and Dynamic web hosting plans is for the first term only. The domain names and the web hosting plans, renew at the regular rate.
The 30-Day Money-Back Guarantee for the new Users means that we are confident you’ll be pleased with our services. Still, if you try us and decide that your account does not sufficiently meet your needs, you can cancel within 30 days for a refund as follows:
- If you cancel your hosting plan within 30 days you’ll receive a full refund on your hosting service only. The 30-Day Money-Back Guarantee does not apply to the add-on products, such as domain names, and must be given the unique nature of their costs.
- If you cancel your hosting plan within 30 days and your plan includes a free domain name, there will be a fee to retain that domain name. RestoMetrix will deduct a non-refundable domain name fee from your refund, at the regular cost of your domain.
- RestoMetrix does not offer any refunds for cancellations that occur after 30 days.
THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND RESTOMETRIX HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, SERVICES AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, SERVICES, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. RESTOMETRIX DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, SERVICES OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU MUST ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF RESTOMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED
WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RESTOMETRIX WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF CPANEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AMOUNTS OWED BY YOU TO RESTOMETRIX UNDER ARTICLE 3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RESTOMETRIX’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY RESTOMETRIX UNDER THIS AGREEMENT.
Either party may give notice during the Term of its intent to terminate this Agreement for convenience. Such termination of this Agreement shall be effective upon the expiration of all licenses maintained by you in effect at the time notice of termination for convenience is given. In the event that either party gives notice of its intent to terminate for convenience, you shall as of the date of the notice lose the right to purchase or renew any licenses.
Additionally, either party may terminate this Agreement in the event that the other party breaches this Agreement. In the event of a breach that is incapable of cure, the non-breaching party may terminate this Agreement immediately by giving written notice of termination to the breaching party. In the event of a breach that is capable of cure, the non-breaching party may terminate this Agreement by giving written notice of termination if the breaching party fails to cure its breach, to the satisfaction of the non-breaching party, within thirty (30) days of receiving written notice of the breach.
Notwithstanding anything to the contrary in this Agreement, upon the occurrence of an Event of Default, RestoMetrix may in its sole discretion elect to immediately with or without notice (i) terminate this Agreement; (ii) terminate any licenses associated with your account; or (iii) suspend your account. Each of the following events constitutes an Event of Default:
1. your breach of any material representation, warranty or the terms and conditions of this Agreement or any other agreement between you and RestoMetrix, including without limitation: RestoMetrix Trademark Usage Policy, the Terms of Service, the Tech Agreement or any trademark license agreement between the parties (if applicable);
2. you engage in any conduct disparaging to RestoMetrix, including any conduct inconsistent with RestoMetrix’s rights, title, and interest in and to RestoMetrix’s intellectual property rights;
3. you fail to make any timely payments owed to RestoMetrix; or
4. you install a VPS License granted by RestoMetrix for a virtual server on another type of server, including, without limitation, dedicated servers.
12. Amendment or Modification
RestoMetrix may amend portions of this Agreement, including, but not limited to license pricing, at any time by sending written or electronic notice of such amendment to the email address you provided to your RestoMetrix Marketplace account; provided, however, that you may terminate this Agreement for convenience in the event that you do not agree to any material change to the terms and conditions of this Agreement. You shall be obligated and responsible for checking for any additional or updated information posted on the RestoMetrix website at https://restometrix.com relating to this Agreement, including, without limitation, those matters referred to in this Agreement, which for purposes of this Agreement shall be considered and deemed due notice thereof to you. YOU SHALL BE RESPONSIBLE FOR REVIEWING ALL COMMUNICATIONS FROM RESTOMETRIX TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE OR
PURCHASE RESTOMETRIX PRODUCTS AFTER INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU.
Any notice required or permitted to be given under this Agreement shall be deemed properly given (i) by RestoMetrix if e-mailed to the Administrative/Billing or Emergency Contact e-mail address provided by you; and (ii) by you if submitted via RestoMetrix ticketing system or mailed by certified mail, postage prepaid with return receipt requested, at the addresses set forth below:
Kahvipavunkuja 4 B 44
14. Independent Contractors
Nothing in this Agreement shall be construed to create an agency relationship between you and RestoMetrix, and you hereby agree that you shall not represent or otherwise convey to any third party that you are an agent, legal representative, or employee of RestoMetrix. Neither you nor your directors, officers, agents, or employees (if any), shall be or be considered, an employee, legal representative or agent of RestoMetrix for any purpose whatsoever. You are not granted, and shall not exercise, any right or authority to assume or create any obligation or responsibility on behalf of or in the name of RestoMetrix, including without limitation, contractual obligations, and obligations based on warranties or guarantees.
15. Time-Limited Claims
Regardless of any Applicable Law to the contrary, you agree that any claim or cause of action arising out of or related to the Software or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
16. Choice of Law
This Agreement will be governed by and interpreted in accordance with the laws of the European Union without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts sitting in Helsinki, Finland. For purposes of this Agreement, the parties hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Helsinki, Finland.
Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
18. Force Majeure
No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
19. Entire Agreement
This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written. The provisions of this Agreement may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. You agree that any written or oral communication, or any other document incidental hereto, which is inconsistent with, conflicts with, or deletes or adds to this Agreement, shall be of no force or effect, and this Agreement shall apply and control in all cases.
Section headings are for convenience of reference only and shall not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement.
This Agreement may be executed in several counterparts or with counterpart signature pages, each of which shall be deemed an original, but such counterparts shall together constitute but one and the same Agreement.
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
DATA PROCESSING ADDENDUM (“DPA”)
1. The following capitalized terms used in this DPA shall be defined as follows:
a. “Controller” has the meaning given in the GDPR.
b. “Your Personal Data” means the “personal data” (as defined in the GDPR) described in Schedule 1 and any other personal data that RestoMetrix
processes on behalf of you in connection with the provision of the Software.
c. “Data Protection Laws” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”), any
applicable national implementing legislation including, and in each case as amended, replaced or superseded from time to time, and all applicable
legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the Processing of your Personal Data.
d. “Data Subject” has the meaning given in the GDPR.
e. “EEA” means the European Economic Area, being the Member States of the European Union together with Iceland, Norway, and Liechtenstein.
g. “Processing” has the meaning given in the GDPR, and “Process” will be interpreted accordingly.
h. “Processor” has the meaning given in the GDPR.
i. “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any of your Personal Data.
j. “Subprocessor” means any Processor engaged by RestoMetrix who agrees to receive from RestoMetrix your Personal Data.
k. “Supervisory Authority” has the meaning given in the GDPR.
l. “Transparency Report” shall mean RestoMetrix’s transparency report, as amended.
2. DATA PROCESSING
1. Instructions for Data Processing. RestoMetix will only Process your Personal Data in accordance with your written instructions. The Agreement (subject to any changes agreed between the parties) and this DPA shall be your complete and final instructions to RestoMetrix in relation to the Processing of your Personal Data.
2. Processing outside the scope of this DPA or the Agreement will require a prior written agreement between you and RestoMetrix on additional instructions for Processing.
3. Required consents. Where required by applicable Data Protection Laws, you will ensure that you have obtained/will obtain all necessary consents for the Processing of your Personal Data by RestoMetrix in accordance with the Agreement.
3. TRANSFER OF PERSONAL DATA
1. You agree that RestoMetrix may use Subprocessors to fulfill its contractual obligations under the Agreement. cPanel shall notify you from time-to-time of the identity of any new Subprocessors it engages. If you (acting reasonably) object to a new Subprocessor on grounds related to the protection of your Personal Data only, you may request that RestoMetrix move your Personal Data to another Subprocessor and RestoMetrix shall, within a reasonable time following receipt of such request, use reasonable endeavors to ensure that the original Subprocessor does not Process any of your Personal Data. If it is not reasonably possible to use another Subprocessor, and you continue to object for a legitimate reason, either party may terminate the Agreement on thirty days written notice. If you do not object within thirty days of receipt of the notice, you are deemed to have accepted the new Subprocessor.
2. Except as set out in paragraph 3.1, RestoMetrix shall not permit, allow, or otherwise facilitate Subprocessors to Process your Personal Data without your prior written consent and unless RestoMetrix:
a. enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of your Personal Data, as are imposed on RestoMetrix under this DPA; and
b. at all times remains responsible for compliance with its obligations under the DPA and will be liable to you for the acts and omissions of any Subprocessor as if they were RestoMetrix’s acts and omissions.
3. Prohibition on International Transfers of Personal Data. You acknowledge that RestoMetrix or its Subprocessors may access your Personal Data outside the EEA or Switzerland, provided that RestoMetrix maintains its certifications to the EU-U.S. Privacy Shield and Swiss-US Privacy Shield frameworks respectively.
4. DATA SECURITY, AUDITS, AND SECURITY NOTIFICATIONS
1. Security Obligations. RestoMetrix will implement and maintain the technical and organizational measures set out in Schedule 3. You acknowledge and agree that these measures ensure a level of security that is appropriate to the risk.
2. Upon your reasonable request, RestoMetrix will make available all information reasonably necessary to demonstrate compliance with this DPA.
3. Security Incident Notification. If RestoMetrix becomes aware of a Security Incident, RestoMetrix will: (a) notify you of the Security Incident within 72 hours, (b) investigate the Security Incident and provide you (and any law enforcement or regulatory official) with reasonable assistance as required to investigate the Security Incident.
4. Employees and Personnel. RestoMetrix will treat your Personal Data as confidential and shall ensure that any employees or other personnel have agreed in writing to protect the confidentiality and security of your Personal Data.
5. Audits. RestoMetrix will, upon your reasonable request, allow for and contribute to audits, including inspections, of its compliance with this DPA, conducted by you (or a third party on your behalf and mandated by you) provided: (i) such audits or inspections are not conducted more than once per year (unless requested by a Supervisory Authority); (ii) are conducted only during business hours; and (iii) are conducted in a manner that causes minimal disruption to RestoMetrix’s operations and business.
5. ACCESS REQUESTS AND DATA SUBJECT RIGHTS
1. Government Disclosure. RestoMetrix will notify you of any request for the disclosure of your Personal Data by a governmental or regulatory body or law enforcement authority (including any Supervisory Authority) unless otherwise prohibited by law or a legally binding order of such body or agency, and subject to the terms of RestoMetrix’s Transparency Report.
2. Data Subject Rights. Where applicable, and taking into account the nature of the Processing, RestoMetrix will use reasonable endeavors to assist you by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of your obligation to respond to requests for exercising Data Subject rights set out in the GDPR.
6. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
1. To the extent required under applicable Data Protection Laws, RestoMetrix will provide you with the reasonably requested information to enable you to carry out data protection impact assessments or prior consultations with any Supervisory Authority, to the extent that either is solely in relation to Processing of your Personal Data and taking into account the nature of the Processing and information available to RestoMetrix.
1. Deletion of data. Subject to 7.2 below, RestoMetrix will, at your election and within 90 days of the date of termination of the Agreement at RestoMetrix’s election:
a. return a copy of all of your Personal Data Processed by RestoMetrix by secure file transfer to you (and securely delete all other copies of your Personal Data Processed by RestoMetrix); or
b. securely delete your Personal Data Processed by RestoMetrix.
2. RestoMetrix and its Subprocessors may retain your Personal Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that RestoMetrix ensures the confidentiality of all such your Personal Data and shall ensure that your Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
8. GOVERNING LAW1. This DPA shall be governed by, and construed in accordance with, the laws of Finland.