Last updated: February 5, 2019
PLEASE NOTE THAT the Agreement IS subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Agreement available at the Website and within the Application. We will also update the “Last Updated” date at the top of the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing registered users. Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA_, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. SERVICES: During the Term (as defined below), Company shall provide the following Services (the “Services”) to Venue:
a. Mobile Platform Services: Via the Company’s mobile application (the “Mobile Platform”), Company will provide the following the payment and database services to Venue: payment processing, nightlife promotion, database profiling, advertising, geocaching, user content, and other promotional offers.
b. Marketing Services: Subject to the reasonable cooperation of Venue, during the Term, but in no event for more than one year from date of execution of this Agreement, Company shall pay for certain targeted social media marketing to attract customers to Venue (“Marketing”).
2. TERM: The term of this Agreement shall commence upon the execution of this Agreement and continue until terminated in accordance herewith (the “Term”). This Agreement may be terminated by the Company, at any time, for convenience upon written notice to Venue. Venue may terminate this Agreement upon 7 days’ prior written notice to the Company. Any notice of termination shall be sent, in writing (including email), to the address set forth under the parties’ signatures below.
3. DISCOUNT: During the Term, Venue agrees to provide a minimum discount of fifteen percent (15%) off the retail price of all alcoholic beverages available at Venue (the “Minimum Discount”) to all End-Users (as defined herein). Venue maintains complete control over the retail price of alcoholic beverages, subject to any pricing limitations provided by state law and regulations. “End-User(s)” shall be defined as any customer who has an account with Qorum, and who checks into Venue with Company’s mobile application services, (i.e. when the customer opens a check on the point of service (“POS”) system through the Mobile Platform), upon entering Venue during the Term. Venue may change the Offers that they provide through the Mobile Platform at any time by providing written notice to the Company of such changes, but at all times Venue shall provide at least the Minimum Discount to End-Users. Venue shall comply with the terms of any Offer that is on the Mobile Platform unless and until Venue provides written notice that such Offer is being changed or revoked and such Offer is subsequently removed from the Mobile Platform by the Company.
4. EXCLUSIVITY: During the Term, Venue shall provide any mobile, digital, or online, customer discounts, coupons, or Offers exclusively through Company’s mobile applications, and Venue shall accept mobile in-application payments exclusively through Company’s mobile payments applications. Venue may only promote or allow others to promote ridesharing services exclusively through Company’s mobile payments applications (“Exclusivity”). If Venue violates the Exclusivity, then Venue shall reimburse Company for any costs that Company has incurred in connection with marketing, advertising, and promoting the Venue pursuant hereto, as well as for any costs incurred in connection with providing the Services hereunder and/or additional damages. The Exclusivity requirement shall survive any termination of this Agreement for a period of 6 months.
5. EQUIPMENT: Company shall provide Venue with the equipment set forth in Exhibit A attached hereto (the “Equipment”). During the Term, Venue shall permit Company to install the Equipment and service the Equipment as needed, in Company’s sole discretion. Venue shall not disable the Equipment and shall notify Company in the event the Equipment is, or appears to be, disabled. Company will charge Venue a rental fee of $2 per month for the use of the Equipment, which constitutes the market rental value of the Equipment.
6. DATABASE PROFILE: During the Term, Company shall provide and maintain a profile for Venue as part of its user-accessible Database. Subject to Venue’s reasonable cooperation, the Database shall include the name, location, and contact information for Venue (as provided by the Venue), along with profile pictures of Venue, and user-generated content (such as, but not limited to, reviews). At the Company’s expense, Company shall provide a professional photographer to take profile pictures of Venue for use on the Database, which Company may, in its discretion, permit Venue to use at its request. Notwithstanding the above, Venue may choose to use its own pictures and promotional material for the Database and, if so, Venue hereby grants to Company any license or rights necessary to copy, disseminate, display or otherwise use such marketing materials in connection with this Agreement.
7. VENUE MARKETING PARAMETERS: For the first month of the Term, Company shall incur up to one thousand ($1,000) in expenses in connection with Marketing. For each other month during the Term, for up to one year, Company shall incur up to ($200) in expenses per month in connection with Marketing. Marketing conducted shall be in conformity with industry best practices as recommended by industry groups, such as the Wine Institute (https://www.wineinstitute.org/initiatives/issuesandpolicy/adcode/details) and the Beer Institute (http://www.beerinstitute.org/responsibility/advertising-marketing-code/).
8. COMPLIANT MARKETING PRACTICES: Company shall comply with all applicable Federal Trade Commission (FTC) laws, rules and regulations concerning endorsements and testimonials with respect to all Marketing benefits described above. Company shall use “Msg 4 21+” and “#sponsored” or “#paid” on all posts on behalf of or that mention Venue. In addition, all
Social media advertising by Company that reflect Venue shall be limited to fans who are 21 years of age or older using the platforms’ targeted post functionality. Company will not conduct any cooperative advertising as such term is defined in 27 C.F.R. § 6.25 with an alcoholic beverage supplier as part of this Agreement.
9. INTELLECTUAL PROPERTY: In connection with Marketing, Venue shall provide to Company, and hereby grants to Company a limited, nonexclusive, nontransferable, non-sublicenseable, royalty-free license to copy, disseminate, display and otherwise use, its trademarks, trade names, trade dress and any other copyrighted or copyrightable materials owned by the Venue (“Venue’s Marks”). Company agrees that all ownership rights in Venue’s Marks shall remain in Venue, that Company shall not claim any right, title, or interest in and to Venue’s Marks, except the limited right to use pursuant to the Agreement, and that Company shall not apply for nor obtain any state or federal service mark or trademark registration, or any foreign service mark or trademark registration, covering or including any Venue Mark. Company shall comply with all reasonable written instructions of Venue regarding the manner of display of copyright or trademark notices of any such material. Company shall take no action inconsistent with or damaging to the Venue’s Marks or the goodwill thereof. Upon termination of this Agreement for any reason, Company’s limited right to use Venue’s Marks shall immediately cease. In addition to using the Venue’s Marks, Company may create, design and develop social media artwork and other creative content for Venue (“Company-Developed IP”). All Company-Developed IP, provided that it does not include or incorporate Venue’s Marks, shall be the sole property of Company
10. REDEMPTION OF COMPANY OFFERS: Company shall offer a drink discount coupon to End-Users who participate in Company’s “refer a friend” program (“Referral Rewards”). Venue shall comply with the terms of the Referral Rewards and offer any End-User that redeems Referral Rewards at the Venue a discount off one alcoholic beverage. This discount will be the smaller of two amounts, either $10 off the price of the drink, or the difference between the cost of the drink to the End-User and the cost of the drink for the Venue (the “pour cost”), such that the discount does not result in the sale of an alcoholic beverage at below Venue’s pour cost. Company shall reimburse Venue $1 each time Referral Rewards are redeemed at the Venue by a new End-User. Company shall pay said reimbursements to Venue on a monthly basis upon receipt from the Venue of an invoice (which may be sent electronically) that details the number of beverages sold to a new End User through the redemption of Referral Rewards and provides proof that such End-User used Referral Rewards to purchase the beverage.
11. ALCOHOLIC BEVERAGE LAW COMPLIANCE: Company does not hold any interest, directly or indirectly, in any alcoholic beverage supplier or any entity licensed to produce, import, or wholesale alcoholic beverages. No portion of any funds used to perform any of the Services under this Agreement, or any benefits that flow from Company to Venue will be derived, directly or indirectly, from an alcoholic beverage supplier.
12. REPRESENTATIONS AND WARRANTIES: Each party represents and warrants that (i) it has the full right, power and authority to enter into and perform its obligations under this Agreement and that by entering into the Agreement it is not in breach of any obligation to any third party, and (ii) such party’s Venue Marks do not infringe or violate any third party intellectual property right.
13. ASSIGNMENT: Company shall have the right to assign this Agreement (or any of its rights hereunder) to any person, firm or corporation. This Agreement, and the obligations hereunder, shall not be assignable by Venue, and any purported assignment thereof shall be null and void.
14. ARBITRATION: Any claim, controversy, or dispute (“Dispute”) between Venue and Company, arising out of, related to, or connected with, this Agreement, or other agreements between the parties concerning the subject matter herein, or any Dispute arising out of, related to, or connected with, the subject matter herein, where the combined amount(s) for all claims of any party exceeds the jurisdictional limit of small claims court, shall be submitted to a binding arbitration with the American Arbitration Association, under their Commercial Arbitration Rules. The arbitration shall be held in San Francisco, California. The prevailing party in such arbitration, or any other legal proceeding arising out of or related to this Agreement, shall be entitled to its costs and reasonable attorney’s fees. THE PARTIES UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO THIS ARBITRATION PROVISION, THEY ARE GIVING UP THEIR RIGHTS TO A JURY TRIAL AND THEIR RIGHTS TO HAVE A COURT TRIAL, AND ALSO THAT THEY WILL NOT HAVE THE SAME RIGHTS TO APPEAL AN ARBITRATION AWARD THAT THEY WOULD HAVE HAD IF THE DISPUTE HAD BEEN DECIDED BY A COURT OR BY A JURY.
15. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels all other and former agreements and understandings between the parties as of the date hereof, and shall not be waived or amended except by written instrument signed by all parties. This Agreement shall be construed in accordance with the laws of the State of California. Should any provision of this Agreement be held void, invalid or inoperative, the remainder of this Agreement shall be effective as though such void, invalid, or inoperative provision had not been contained in this Agreement. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
17. DISCLAIMER OF WARRANTIES: THE MOBILE PLATFORM AND ALL SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE MOBILE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET VENUE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN VENUE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
18. Mutual Indemnification. In addition to any other indemnification provided by either party under this Agreement, each party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other party, its parent, subsidiaries and affiliates, directors, officers, employees, contractors, equity holders, agents, successors and assigns (each, an “Indemnified Party”), from and against any and all liabilities, obligations, settlement awards, damages, liens, fines, penalties, losses, costs and expenses (including without limitation court costs, costs of settlement, costs of enforcing any right to indemnification hereunder, costs of pursuing any insurance providers and reasonable attorneys’ fees) (collectively, “Losses”) that the Indemnified Party shall suffer or incur, directly or indirectly, in connection with any claim, action, cause of action, demand, suit, accusation or proceeding of any third party alleging: (i) any actual or alleged violation of any Law by the Indemnifying Party; (ii) the actions or inactions of the Indemnifying Party relating to this Agreement or the performance of any Event hereunder; (iii) the breach or alleged breach of any of the representations, warranties or obligations of the Indemnifying Party herein; (iv) the products, services, artwork or other material prepared or submitted by the Indemnifying Party in connection with any Event or this Agreement; (v) the actions or inactions of any company employed by the Indemnifying Party to perform any portion of the duties or obligations contained herein; and/or (vi) product liability claims that may be asserted against the products of the Indemnifying Party. The obligations set forth in this Paragraph 18 shall survive the termination of this Agreement.
19. LIMITATION OF LIABILITY: IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER EXCEED THE VALUE OF THE SERVICES PROVIDED BY THE COMPANY TO THE VENUE. FURTHER, IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.