PROFIT IMPROVEMENT SYSTEM™
PROMOTIONAL SERVICES PROGRAM TERMS
INTRODUCTION: The restaurant or business (“Merchant”) agrees to participate in the Restaurant.com, Inc. (“RDC”) Profit Improvement System™. The following terms also apply to the Merchant’s participation.
RDC will promote the Merchant’s business by providing some or all of the following services: designing and hosting an Internet website, creating electronic promotions via certificate numbers or codes (“Code(s)”), building a database of customer names and email addresses, conducting customer surveys and reviews, providing or arranging for email or other marketing campaigns, and more (any services provided by RDC to the Merchant are herein described as the “Services”). Notwithstanding the foregoing, RDC may immediately discontinue providing the Services to any Merchant if such Merchant is, in RDC's reasonable discretion, using the Services in any fraudulent, illegal or unauthorized manner.
Merchant authorizes the auction, sale and trade of the right to print, access, and present Merchant’s credit represented by physically or electronically generated Codes in denominations, quantities, prices, and at times determined by RDC to fill as many tables as possible (or as otherwise agreed to by the Parties). Merchant, as issuer of credit, agrees to honor all credits presented pursuant to Merchant’s participation in the Profit Improvement System™, even after termination, regardless of when the Code is presented. Each Code presented represents a credit in favor of the holder thereof to be honored by the Merchant furnishing goods or services as having that face value to the holder. Merchant agrees to validate every Code presented pursuant to Merchant’s participation in the Profit Improvement System™. Merchant’s failure to honor all credits when presented will cause RDC to suffer substantial, but difficult to calculate, injury. As reasonable compensation, Merchant agrees to pay RDC an amount equal to the number of unvalidated Codes multiplied by ten dollars or one thousand dollars (whichever is greater).
2. Confidential Information
For the purposes of the Profit Improvement System™, the term “Confidential Information” means any data or information obtained by Merchant (“Recipient”) regarding RDC (“Discloser”) or their respective businesses that is not generally known to the public, including, without limitation: information about the products, services, operations, procedures, software, customers, suppliers, sales, pricing, business plans and marketing strategies of Discloser, its Affiliates and the customers, clients and suppliers of any of them, including any reports thereof, and the terms of the Profit Improvement System™, including any schedules, addenda, amendments or other attachments hereto.
RDC owns and reserves the right, subject to all applicable laws, to use, analyze, sell, license, provide and distribute the information that is created or collected through the Service and Software as well as all Confidential Information; provided, however, that RDC may choose to sell, license, or provide any such information to any third party by first removing or concealing the identity of the customers or clients or their personal information. The rights in this Section shall survive termination of Merchant’s participation in the Profit Improvement System™. RDC has the right to share all information and data that is generated through the consumer, the websites and the Services with the general public, and any affiliate or partner, for any marketing or business purposes. Such information shall include passwords to the administrative section of Restaurant.com (RMC) microsites, data collected from surveys and credit card transactions, user and non-user generated content and other data that may be generated from time to time.
At its sole discretion, RDC may also choose to share some or part of the contact information it obtains from a consumer in connection with the Promotional Services with the Merchant. If Merchant uses any such information, Merchant further agrees it will comply with all applicable privacy laws (federal, state or otherwise), including those that govern marketing email, such as the CAN-SPAM Act of 2003 and all other anti-spam laws. Merchant shall not send any email or other communication containing RDC’s name, service offering, website address, metatag, or any other type of identifier to any recipient. In addition, Merchant shall not send any email or other communication to any recipient whose information was obtained due to RDC’s Services, unless the recipient has consented to receive such communication. Merchant agrees to provide each recipient with the ability to “opt-out” of any communications by including an “unsubscribe” link in each email to the recipient. Under no circumstances may the Merchant share, license, copy, sell or transfer the information disclosed in accordance with this paragraph unless done so to an entity which acquires all or substantially all of the assets of the Merchant, in which case the Merchant is bound by the limitations set forth in this Section.
3. Publicity and Use of Marks
RDC shall have a royalty-free, non-cancellable, worldwide, licensable and transferable right to use all trademarks, service marks, logos, trade names, menus, data, photos, and video of Merchant, and any derivative works or facsimile thereof (collectively, the “Merchant Marks”), without the prior written consent of Merchant in any lawful manner, e.g. to comply with the obligations as set forth herein. Such right survives termination of Merchant’s participation in the Profit Improvement System™ and shall terminate when the final merchant credit issued under Merchant’s participation in the Profit Improvement System™ has been validated at Merchant’s establishment.
Merchant does NOT have permission, express or implied, to use RDC’s name or trademark, (collectively the “RDC’s Marks”) without RDC’s prior written consent, which Merchant will request from RDC in writing and RDC will not unreasonably delay. Absent express consent from RDC, Merchant may NOT assume that RDC has given approval to use RDC’s Marks.
The Merchant represents and warrants that while using the Promotional Services that it will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over the Merchant, whether those laws, etc. are now in effect or later come into effect during the time Merchant is a Promotional Services participant, including, without limitation, laws which govern (1) taxation, (2) distribution and sale of alcohol, and (3) unclaimed property.
Merchant shall indemnify and hold harmless RDC, its Affiliates and its and their respective directors, officers, employees, and agents from and against all demands, claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys fees and costs) arising out of or resulting from (i) the failure of Merchant to comply with any of the terms and conditions of the Profit Improvement System™, (ii) any erroneous instructions or information provided to RDC by Merchant for use in providing the Services, (iii) any fraud or intentional misconduct committed by Merchant, or any of its or their employees or agents, (iv) any misrepresentations made by Merchant in connection with Merchant's solicitation of the Services, (v) the failure of Merchant to comply with any applicable law or regulation, including taxes, alcohol, and escheatment or unclaimed property liability, (vi) any disputes between RDC and an Merchant, or RDC and a consumer, including but not limited to any dispute relating to the payment of any amounts alleged to be owed by one party to the other party or (vii) any claim or action against RDC for actual or alleged infringement of any patent, copyright, trade secret or other proprietary right of any person in connection with Profit Improvement System™.
Merchant also bears full responsibility for any and all injuries, illnesses, damages, claims, liabilities, complaints, problems, and costs suffered by or in respect of a customer, caused in whole or in part by Merchant, including, but not limited to (1) all products and services provided by Merchant; (2) any claims relating to redemption of Merchant’s credit; and (3) the presence of any toxic or injurious substance in any food, beverage or product provided by Merchant (“Customer Injuries”). The Merchant agrees to fully indemnify and hold RDC harmless on demand by RDC from any and all liability, cost, damage and expense, including but not limited to court costs and reasonable attorney fees, arising from or relating to any Customer Injury.
5. Limitation of Liability; Disclaimer of Warranties
- NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, IN NO EVENT SHALL RDC, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO MERCHANT UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, RDC’s CUMULATIVE LIABILITY FOR ANY LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES PROVIDED IN THE PROFIT IMPROVEMENT SYSTEM™ REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED BY MERCHANT BUT, IN ANY EVENT, SHALL NOT EXCEED THE REVENUE GENERATED BY THE SALE OF THE RIGHT TO ACCESS PROMOTIONAL CERTIFICATE NUMBERS OR CODES FOR THAT MERCHANT’S LOCATION IN THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
- RDC HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO PROFIT IMPROVEMENT SYSTEM™, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING BETWEEN THE PARTIES), EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, AND EACH PARTY AGREES THAT, IN CONNECTION WITH ITS EXERCISE OF ITS RIGHTS AND PERFORMANCE OF ITS DUTIES PURSUANT TO PROFIT IMPROVEMENT SYSTEM™, NEITHER PARTY WILL MAKE ANY STATEMENT OR TAKE ANY ACTION THAT WOULD INDICATE OR IMPLY OTHERWISE.
- RDC DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES PROVIDED WILL SATISFY MERCHANT’S REQUIREMENTS OR THAT THE OPERATION OF SUCH WILL BE UNINTERRUPTED OR ERROR FREE.
6. Force Majeure
RDC shall not be liable for any default or delay in the performance of its obligations under Merchant’s participation in the Profit Improvement System™ if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, elements of nature or other acts of God, any outbreak or escalation of hostilities, war, riots or civil disorders, acts of terrorism, utility or telecommunications failures or fluctuations, or any other cause, whether similar or dissimilar to those referenced above, beyond the reasonable control of such party. In any such event, RDC shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and such party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable.
7. Restaurant.com Reporting
RDC will provide Merchant with an online customer insight product through the Restaurant Management Center (“RMC”). This product is provided to Merchant on the condition that Merchant does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse assemble, disassemble or decompile any RDC software (“Software”) or any part thereof or otherwise attempt to discover any source code, modify the Software in any manner or form, or use unauthorized modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. Merchant acknowledges and agrees that RDC shall own all rights, title and interest in and to all intellectual property rights in this Service. Upon termination or breach by Merchant, RDC reserves the right to discontinue Merchant’s access to the RMC.
Merchant shall be responsible for obtaining and maintaining all hardware required to run the Software and use the Service. Merchant shall be responsible for timely preparing, at its cost, the site at which the software will be installed, including the acquisition and setup of the hardware.
It is recommended that Merchant maintain virus protection software and reasonable security for its on-site systems and on-site data, which may include firewalls, passwords, physical security, access control policies and the like.
For the term of Merchant’s participation in the Profit Improvement System™, Merchant shall not participate in, contract with, display, or allow to be displayed, any online third-party discounts or promotions which advertise or offer to the consumer for a fee, a fixed dollar amount off the price of a meal or good at the Merchant’s establishment (“Third-Party Consumer Fee Promotions”). Notwithstanding the foregoing, Merchant may participate in a Third-Party Consumer Fee Promotion by written agreement of the Parties. Merchant may display its own promotions or advertisements which are given away to the consumer either at the Merchant’s establishment, via the Merchant’s website, or a third-party promotional website, at no cost to the consumer. The purpose of this Section is to facilitate and leverage the expertise of RDC in an effort to protect participating Merchants from marketing services that will not provide a long-term benefit to the Merchant.
9. Term and Termination
- Term. Merchant’s participation in the Profit Improvement System™ shall continue until terminated in accordance with Section 9.
Termination Notice and Procedure.
- RDC may terminate Merchant’s participation in the Profit Improvement System™ at any time.
- Merchant may only terminate Merchant’s participation in the Profit Improvement System™ by giving advance notice to RDC not less than thirty (30) days prior to termination, and by complying with the terms of this Section 9. In order for Merchant’s notice to be effective, Merchant must schedule and keeps an Exit Review over the phone. The Merchant must be available for a minimum of 15 minutes for such Review. Merchant understands that the Review is a condition of termination, and that failure to schedule and/or keep the Exit Review will extend the notice period.
- In the event Merchant fails to comply with the Termination provision, Merchant acknowledges that RDC’s injury will be difficult to calculate and agrees to pay RDC one thousand dollars as reasonable compensation for RDC’s Services.
- Effect of Termination.
- The Parties’ obligations to customers who possess Codes continue after termination, e.g. validation Services necessary to both parties to fulfill their obligations under the Profit Improvement System™.
- Merchant, as issuer of credit, agrees to honor all credits presented pursuant to Merchant’s participation in the Profit Improvement System™, even after termination, regardless of when such credit is presented.
- Merchant’s failure to honor all credits when presented will cause RDC to suffer substantial, but difficult to calculate injury. As reasonable compensation, Merchant agrees to pay RDC an amount equal to the number of unvalidated Codes multiplied by ten dollars or one thousand dollars (whichever is greater).
Merchant shall not assign any of its rights or obligations under Merchant’s participation in the Profit Improvement System™ without the prior written consent of RDC, which consent shall not unreasonably be withheld or delayed. Notwithstanding the foregoing, a Merchant remains obligated as a participant in the Profit Improvement System™ where the operations continue under the same name at the same location.
RDC may assign its rights and obligations in total, or any of its individual rights or obligations hereunder upon notice to, but without the requirement of the consent of, Merchant. The rights and obligations created under Merchant’s participation in the Profit Improvement System™ shall be binding upon and inure solely to the benefit of the parties hereto and their respective successors and assigns.
11. Governing Law, Jurisdiction and Waiver of Trial by Jury
THE PROFIT IMPROVEMENT SYSTEM™ SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, without reference to rules governing choice of laws. Litigation arising out of or related to the Profit Improvement System™ shall be commenced and maintained exclusively in the state or federal courts sitting in the city of Chicago and the State of Illinois. EACH PARTY IRREVOCABLY SUBMITS TO JURISDICTION IN ILLINOIS AND WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS THAT SERVICE OF PROCESS UPON IT MAY BE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE PROFIT IMPROVEMENT SYSTEM™. Merchant understands and agrees that its submission to jurisdiction in Illinois directly benefits RDC, and such submission is factored into the cost and nature of the Services provided to Merchant.
12. General Provisions
- Merchant Credit. Merchant credit issued pursuant to Merchant’s participation in the Profit Improvement System™ shall not have an expiration date.
- Independent Contractors. RDC and Merchant agree that in performing their responsibilities pursuant to the Profit Improvement System™, they are in the position of independent contractors. Merchant’s participation in the Profit Improvement System™ is not intended to create, nor does it create and shall not be construed to create, a relationship of agency, partnership or joint venture or any association for profit between and among RDC and Merchant. Merchant’s participation in the Profit Improvement System™ is not intended or shall be construed to give any person, other than the parties hereto, any legal or equitable right, remedy or claim under or in respect to Merchant’s participation in the Profit Improvement System™.
- Notices. Unless alternative means are otherwise set forth herein, all notices and other communications as to Merchant’s participation in the Profit Improvement System™ shall be in writing and may be given by any of the following methods: (i) personal delivery against a signed receipt; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) overnight delivery service. All such notices and communications shall be deemed delivered upon (A) actual receipt thereof by the addressee, or (B) actual delivery thereof to the appropriate address. Notices shall be sent: (a) if to Merchant, to the mailing address for its operations; (b) if to RDC, to Restaurant.com, 1500 W. Shure Drive, Arlington Heights, Il. 60004, Attention: Legal Department; or (c) to such other address for each party as is specified in a written notice given to the other party.
- Affiliates. RDC may, without notice to Merchant, subcontract with one or more Affiliates or third parties to provide any service or services required to be provided by RDC hereunder, provided that no such use of subcontractors shall relieve RDC of its obligations under the Profit Improvement System™.
- Miscellaneous. The Profit Improvement System™ Program Terms together with Merchant Sign-up Record constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and there are no oral agreements between the parties hereto. The Profit Improvement System™ may only be amended (1) by a writing signed by the parties hereto, or (2) by a modification of these Program Terms. The headings of sections of these Program Terms are for convenience and shall not control or affect the meaning or construction of any of the provisions. No waiver by either party of any breach of any provision shall be deemed to be or construed as a further or continuing waiver of any breach of any other provision. If any term, provision, covenant or restriction of the Profit Improvement System™ or these Program Terms, or any part thereof, is held by a court or any governmental, regulatory or administrative agency or authority to be invalid, void, unenforceable or against public policy for any reason, the remainder of the terms, provisions, covenants and restrictions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
- BY AGREEING TO PARTICIPATE IN THE PROFIT IMPROVEMENT SYSTEM™, I PERSONALLY GUARANTEE, REPRESENT, AND WARRANT THAT I HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND MERCHANT BUSINESS TO THE TERMS OF THE PROFIT IMPROVEMENT SYSTEM™. I WILL ACCEPT PERSONAL LIABILITY FOR ANY MISREPRESENTATION OF SAID AUTHORITY. I HEREBY PERSONALLY GUARANTEE, REPRESENT AND WARRANT THAT MERCHANT TO THE PROFIT IMPROVEMENT SYSTEM™ IS THE AUTHORIZED REPRESENTATIVE OF THE BUSINESS BEING CONDUCTED AT THE ADDRESS FOR MERCHANT. TO THE EXTENT THAT THE MERCHANT TO PROFIT IMPROVEMENT SYSTEM™IS A CORPORATION, LLC, PARTNERSHIP OR OTHER BUSINESS ENTITY I GUARANTEE, REPRESENT AND WARRANT THAT THE BUSINESS IS IN GOOD STANDING AND HAS AUTHORITY TO CONDUCT BUSINESS AT THE ADDRESS. I ACCEPT PERSONAL LIABILITY FOR ANY MISREPRESENTATION OF THE GUARANTEE REPRESENTATION OR WARRANTY BEING PROVIDED IN THIS PARAGRAPH AND PROFIT IMPROVEMENT SYSTEM™.