PARTAKE TECHNOLOGIES, INC.
TERMS AND CONDITIONS
GENERAL TERMS OF SERVICE
These General Terms of Service (“General Terms”) are a legal agreement between you (“Subscriber”, “you”) and Partake Technologies, Inc.. (“Partake”, “us”, “we”) and govern your use of Partake’s services, including mobile applications, websites, software, hardware, and other products and services (collectively, the “Services”). If Subscribes is using the Services on behalf of a business, Subscriber represent to Partake that Subscriber has authority to bind that business or entity to these terms, and that business accepts these terms. By using any of the Services, Subscriber agrees to these General Terms and any policies referenced within (“Terms and Conditions”).
1. PARTAKE ACCOUNT REGISTRATION
You must open an account with us (a “Partake Account”) to use the Services. During registration we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are fully responsible for all activity that occurs under your Partake Account, including for any actions taken by persons to whom you have granted access to the Partake Account. We reserve the right to change the account type, suspend or terminate the Partake Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
2. YOUR LICENSE
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Services, as authorized in these General Terms. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time.
a. Certain Subscriber Responsibilities
Subscriber’s Offering. Subscriber hereby agrees and acknowledges that all services are its own, offered through itself and no other person or entity, and over which it has full and complete dominion and control. All services offered by Subscriber shall be known as “Subscriber Offerings.” Subscriber agrees to cooperate with Partake in providing appropriate descriptions, pictures, or other information needed to display Subscriber’s Offerings on the System for provision of the Services. Partake retains sole control over which of Subscriber’s Offerings to display or otherwise make available for purchase by Subscriber’s customers.
Subscriber has the choice to purchase hardware from Partake or provide own equipment. If Subscriber has selected above to provide own equipment, Subscriber will provide all necessary Equipment as directed by Partake, including a reliable, consistent, and commercial-grade connection to the Internet, or other wireless Internet connectivity of identical quality, to allow access by Subscriber to the System. Subscriber understands that, should it provide its own equipment, it is solely responsible for the provision, maintenance, and upkeep of any equipment and that any failure of such equipment may temporarily or permanently disable some or all functions of the System or the provision of the Services.
c. Distribution and Provision of Offerings
Subscriber agrees and acknowledges that Partake is offering the System and the Services for the benefit of Subscriber, and not for the benefit of any other third party. Subscriber agrees and acknowledges to onboard, implement, cooperate, and/or commence using and/or offering the System and the Services to Subscriber’s customers within ten (10) Business Days of the expected start date. Subscriber further agrees and acknowledges that the System and the Services are one of Subscriber’s methods of purchasing Subscriber’s services. Subscriber further agrees and acknowledges that, in order for Subscriber’s customers to properly receive services ordered by Subscriber’s customer, Subscriber must provide Partake all necessary information concerning same to enable the System to provide the Services to Subscriber’s customers, including, without limitation, the pricing, selection, preparation, delivery, and/or distribution of such services. Subscriber further agrees and acknowledges that it will conduct itself with the utmost of professionalism, morality, and in compliance with all laws, statutes, rules, regulations, agency decisions, or other controlling pronouncements from any governmental or quasi-governmental body or department (collectively, “Laws”).
d. Certain Additional Obligations of Subscriber.
Subscriber assumes the following obligations and agrees to create an account on the Partake Web Portal as well as download Partake’s business interface application from available application stores, i.e. Apple App Store®. Subscriber must follow the instructions contained in the Partake Web Portal application to create an account within the System. Partake will assist Subscriber with the account creation and login process.
offer and market Partake Pay to all guests at all facility locations where applicable services, i.e. food, beverage, and retail products, are offered and must be active during all hours of operation, not including third-party vendors.
deliver, maintain, and update (as necessary) marketing and branding materials (the “Materials”) to Partake for populating same in the System for the provision of the Services to Subscriber’s customers. Partake must approve, in its sole discretion, all materials intended for population in the System prior to population. The Materials include:
i. Subscriber’s logo in various forms requested;
ii. Subscriber’s mapping and/or blueprints of concession and server operations;
iii. Subscriber’s seat and venue layout for all event configurations;
iv. Pictures of food, beverage, retail products, or services;
v. Videos of food, beverage, retail products, or services;
vi. Descriptions, prices, and quantities (for inventory management purposes) of food, beverage, retail products, and services; and
vii. Pictures of concessions and service locations;
3. TERM OF THIS AGREEMENT
a. Initial Term
The Initial Term of this Agreement will begin on upon execution of this Agreement and continue for the Term of Agreement listed on the initial page hereto. All Fees for the Initial Term are due when accrued, regardless of Subscriber’s or any customer of Subscriber’s use of the System or the Services.
Either Party may only terminate this Agreement, effective on the final day of the Term, by written notification to the other Party of such Party’s intention to terminate this Agreement, to be sent not less than thirty (30) days prior to the end of the Initial Term.
b. Subsequent Terms
Following the Initial Term, this Agreement and the Services will automatically renew indefinitely on a month-to-month basis. Following the Term, either party may terminate this Agreement by no less than thirty (30) days’ written notice to other party, effective on the last day of the month containing that date which is thirty-one (31) days following such written notice is sent. By way example, if written notice of termination of this Agreement is effective on February 1st, the final date of the Agreement shall be March 31st; and if written notice of termination of this Agreement is effective on March 1st, the final date of the Agreement shall be April 30th.
4. SPECIAL PROVISION FOR PROMOTIONAL PERIODS.
Subscriber agrees and acknowledges that Partake has no obligation, duty, or other requirement to offer any Promotional Offer(s) or Promotion Detail(s), and any Promotional Offer(s) or Promotional Detail(s) are offered pursuant to Partake’s sole and complete discretion.
If Subscriber accepts Partake’s Promotional Offer and the Promotion Details listed on the initial page of this Agreement (if any), but does not take sufficient actions which, in Partake’s sole and complete discretion, do not permit Partake to begin offering the System and/or the Services on the expected start date, then within ten (10) Business Days, Partake may terminate (without notice or writing) some or all of the character, quantity, quality, or Promotional Period forming the Promotional Offer or the Promotion Details. Thereafter, Subscriber will be responsible for the full amount of any fees, costs, or other amounts originally temporally or permanently discounted and/or waived by the Promotional Offer and/or the Promotion Details. In such an event, Subscriber hereby agrees and acknowledges that the Initial Term shall begin on that date immediately following Partake’s actual, express, or implied termination of the Promotional Offer and Promotion Details.
As used herein, “Promotional Period” means any temporary or permanent, discount, waiver, forbearance, or modification of any liability, fee, cost, expense, or other amount generally charged to Partake customers similar to Subscriber for the time period set forth in the Promotion Details (if any).
5. DEFAULT TERMINATION OF THIS AGREEMENT
a. Termination of this Agreement in Certain Circumstances
Partake may terminate this Agreement and cease performing any portion of all of the Services immediately in the event:
i. Subscriber fails to pay any amount due for the System or Services, or
ii. Subscriber fails to comply with any of the terms and conditions hereof and does not remedy or cure such default within ten (10) days following general notice thereof.
Subscriber may terminate this Agreement and cease using the System and the Services if Subscriber:
iii. Provides not less than thirty (30) days’ written notice; and
iv. On or before the thirtieth (30th) day following such written notice, pays all outstanding balances for Paid Services
Subscriber will have been deemed to terminate in the manner prescribed above Partake shall be entitled to all Paid Services during the term of the contract, if:
v. Subscriber fails to onboard, implement, cooperate, and/or commence using and/or offering the System and the Services to Subscriber’s customers within thirty (30) Business Days of the expected start date as determined in Agreement.
vi. Subscriber ceases using or offering to its customers the System and/or the Services for a period of ten (10) Business Days in any one-month period.
In the event of a Bankruptcy, Partake may take any of one or more of the following remedies:
vii. suspend or cancel this Agreement and take possession of all equipment which has not been fully paid for, delivered or installed at Subscriber’s premises;
viii. bill Subscriber for license fees and onboarding fees due if agreement is canceled during any Promotional Period or before mandatory three-month service period has been met;
ix. bill Subscriber for all fees waived during any Promotional Period, onboarding fees waived, and all fees for mandatory 3-month operational period;
x. terminate all Services and any and all access to the System by Subscriber or its customers by giving five (5) days’ written notice to Subscriber and recover all accrued but unpaid amounts then due;
xi. recover from Subscriber the total unpaid purchase price for the System; and/or
xii. pursue any other remedy at law or equity now or hereafter existing.
As used herein, “Bankruptcy” means:
xiii. Subscriber makes an assignment for the benefit of creditors,
xiv. an order for relief is entered against Subscriber under any chapter of the Federal Bankruptcy Code, as amended,
xv. a receiver or trustee is appointed for all or substantially all of the assets of the Subscriber, and/or
xvi. there is a dissolution or termination of existence of Subscriber.
All remedies provided for in this are cumulative, non-exhaustive, and the exercise of one does not preclude the exercise of another.
6. HARDWARE POLICIES AND LIMITED WARRANTY
a. Partake Hardware and Return Policy
This Sales and Return Policy applies to your purchase of Partake hardware (“Partake Hardware”) and third party hardware and accessories (“Third Party Hardware,” and collectively with Partake Hardware, “Products”) from Partake.
Subscriber agrees to only use the Equipment provided by Partake for use strictly related to the provision of the Services and use of the System. Subscriber agrees and acknowledges that it will only use Partake’s mobile application, and any derivations thereof, on such Equipment. Subscriber agrees understands and acknowledges that Partake uses a third party to track assets and usage. Subscriber agrees and acknowledges that it will not turn off, modify, or otherwise interfere with any third-party application. Subscriber further agrees and acknowledges that it will notify Partake of any interruption in the Services, the System, or any third-party application.
We will ship Products using a carrier selected by us. While we will try to meet your shipment and delivery dates, we may be unable to do so in the event of low Product inventory. In addition, many events beyond our control can affect the delivery of your Products after we provide it to the carrier. Therefore, we are not liable for late shipment or delivery or any loss, damage, or penalty you incur from any delay in shipment or delivery.
If Subscriber is not fully satisfied with purchase, Subscriber may return Products within thirty (30) days of delivery so long as they are in their original condition and packaging and Subscriber encloses the original packaging slip. All returned products are inspected carefully, refinished and repacked and are therefore subject to a 15% refinishing and restocking fee. We review each returned order individually once it’s received and reserve the right to charge a higher restocking fee, up to 50% based on the condition of the units when they arrive at our warehouse. Refunds are processed upon receipt of the product and DO NOT include shipping/handling costs. iPads and other Apple Product returns must be unopened. We do not accept returns of iPads or other Apple Products where any part of the original packaging has been opened, broken, or altered. Partake will refund Subscriber purchase price in full and subscriber will cover the cost of return shipping. Subscriber must return all Products, cords, cables, parts and documentation that were included with the original package. Products purchased from Partake through an installment plan are not eligible for partial returns, and must be returned with all other Products included in the installment plan purchase. Refunds will be applied to the original purchase method. Only Products purchased directly from Partake can be returned to Partake. Products Subscriber purchases through Partake’s authorized retail partners must be returned in accordance with their respective return policies.
The Products offered from Partake consist of Partake Hardware as well as Third Party Hardware purchased and resold by Partake. From time to time, Partake may be unable to manufacture or obtain a sufficient supply of Products. In addition, there may be occasions when Partake confirms your order but subsequently learns that Partake is unable to supply Subscriber Products. Therefore, Partake reserves the right at any time to limit or change quantities available for purchase or to cancel Subscribers order. If Partake cancels Subscribers order, Partake will refund Subscribers purchase price in full.
e. End User Customers
Partake sells and ship Products only to Subscribers for their own use. Subscriber may not purchase Products for resale and Partake reserve the right to refuse or cancel Subscribers order if Partake believes Subscriber will do so. Subscribers use of the Products is governed by Partake’s Terms of Service
f. Limited Warranty for Partake Hardware
Partake warrants Subscribers Hardware against defects in materials and workmanship under normal use for a period of thirty (30) days from the shipping date. Partake will replace such defective Hardware at no cost to Subscriber. However, Subscriber must return the defective Hardware to Partake at the designated address and in the designated box, with all accessories, cords, cables, parts and documentation included, within fifteen (15) days of receiving Subscribers replacement Hardware. Subscriber will be asked to provide a payment card number to Partake when Subscriber initiates a warranty based return. In the event Subscriber fails to return defective Hardware pursuant to the process and time frame specified by Partake, Partake will charge either Subscribers Partake Account (if there is a balance) or the card Subscriber provided when Subscriber initiated the warranty based return. This is the Subscribers sole and exclusive remedy for breach of this limited warranty. This limited warranty is only available to Subscriber as the original purchaser of the Hardware. Warranty coverage terminates if Subscriber sell or transfer Hardware. No Partake reseller, agent, or employee is authorized to make any modification, extension, or addition to this limited warranty. To initiate a warranty based return, contact Partake Support.
This limited warranty does not apply to Partake Hardware that has been subject to alteration, repair, tampering, accident, abuse, misuse, fire, acts of god (including, without limitation, earthquake, flood, hurricane, lightning, or tornado) or other external causes. This limited warranty does not apply to any Third Party Hardware, any consumable parts, including batteries, or any software, even if resold or included with the Partake Hardware. All Third Party Hardware resold or included by Partake is provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its Product. For service, support, or warranty assistance, you should contact the manufacturer directly.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITED WARRANTY IS PROVIDED IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ANY PARTAKE OR THIRD PARTY PRODUCT. ACCORDINGLY, PARTAKE EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST HIDDEN OR LATENT DEFECTS. TO THE EXTENT SUCH WARRANTIES CANNOT BE DISCLAIMED, PARTAKE LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION AND REMEDY OF THIS LIMITED WARRANTY. IN NO EVENT WILL PARTAKE BE LIABLE FOR ANY LOSS OR DAMAGE OR FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES HOWEVER CAUSED ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY PARTAKE OR THIRD PARTY PRODUCTS, INCLUDING LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF GOODWILL, OR LOSS OF REPUTATION.
g. Subscriber Owned Equipment
Any Equipment owned and provided by Subscriber is Subscriber’s sole responsibility. Should Subscriber provide its own Equipment, the following obligations will be required of Subscriber:
Subscriber must provide the Equipment with steady, reliable, and constant access to a wireless connection to the Internet, or identical wireless Internet connectivity, over the entirety of Subscriber’s location. Subscriber understands and acknowledges that it is unlikely that Subscriber’s WiFi connection will be sufficient for the System to perform the Services. Subscriber must provide such Internet connection through a third-party data package, if necessary.
If the Equipment is not functioning, transmitting via the Internet or recording properly for any reason, or is damaged, is not maintained or damaged at Subscriber’s facilities, the System may not function and the Services may not be provided. Partake is not responsible and may not have any way to recreate this data.
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
7. PAID SERVICES
Partake may offer Services to be paid for on a recurring basis (“Subscription Services”, “Integration Services”, or “Hardware Services) or on an as-used basis (“Commission Services” and, together with the Subscription Services, Integration Services, and Hardware Services “Paid Services”). Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, Integration Service, or Hardware Services, including after any promotional period, you agree to pay us the subscription fee, integration fee, hardware fee, and any applicable taxes as set forth in your Partake Account settings or as otherwise agreed in writing (“Subscription Fee”, “Integration Fee”, “Hardware Fee”). Commission Services may subject you to fees charged per usage and/or terms. By using a Commission Service, you agree to pay the fees and any taxes incurred at the time of usage (“Commission Services” and, together with Subscription Fees, the “Paid Service Fees”).
Paid Service Fees may be paid by debit card, credit card, or deducted from your transaction proceeds. If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your transaction proceeds, the Balance (as defined in the Payment Terms) in your Partake Account or your linked bank account.
Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged on the 1st of every month until cancelled. You may cancel a Subscription Service at any time from your Partake Account settings. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee upon thirty (30) days’ advance notice. Your continued use of Subscription Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
a. PROVISION FOR PREFERRED, DISCOUNTED, GIFT-CARD, OR OTHERWISE ADJUSTED TRANSACTIONS.
Subscriber agrees and acknowledges that the System may, at the request of Subscriber, allow Subscriber’s customers to purchase Subscriber Offerings which are discounted or consummated using the Subscriber’s customer’s internal credit, gift card, or other preferred account with Subscriber (such being one or more “Preferred Transaction(s)”).
Partake will invoice Subscriber for the Service Fee (as defined below) and Commission associated with such Preferred Transaction(s), to the extent not otherwise collected by or paid to Partake by the Subscriber customer (the “Preferred Transaction Amounts”). The Service Fee and Commission will be calculated as if the Preferred Transaction(s) were processed on and collected through the System using the credit card linked to the Subscriber’s customer’s account. Subscriber agrees to pay such Preferred Transaction Amounts as invoiced within ten (10) days following the date of the invoice.
b. Certain Definitions:
As used herein, “Gross Sales” means the total retail value charged for the transactions of Subscriber Offerings in a given calendar month, consisting of the price Subscriber offers for any Subscriber Offering at the date and time of the transaction, net of Subscriber’s application of any gift card balances, discounts, coupons, or courtesy reductions.
Subscriber hereby agrees and acknowledges that Partake may charge a service fee to Subscriber’s customers for mobile transactions consummated and paid for using the System. A service fee is triggered when a customer selects specific delivery options through the System and the fee amount depends on customer location and delivery preference. (the “Service Fee”).
Subscriber hereby agrees and acknowledges that Partake charges, and Subscriber is hereby obligated to pay, a Commission for specific licenses Subscriber selects on all consumer mobile transactions consummated and paid for using the System (the “Commission Services”). Subscriber agrees to pay the Commission rates listed on Subscribers Agreement.
Subscriber hereby agrees and acknowledges that Partake charges, and Subscriber is hereby obligated to pay, 2.85% of the total amount tendered (including, without limitation, the total retail value of the transaction, taxes charged or collected, and any gratuity added by the Subscriber or Subscriber’s customer), plus thirty cents ($0.30) per transaction (the “Processing Fees”), for non-mobile (on-premise) Non-Amex credit transactions consummated and paid for through System. Subscriber is hereby obligated to pay, 3.5% of the total amount tendered (including, without limitation, the total retail value of the transaction, taxes charged or collected, and any gratuity added by the Subscriber or Subscriber’s customer), plus thirty cents ($0.30) per transaction (the “Processing Fees”), for non-mobile (on-premise) Amex credit transactions consummated and paid for through System. Partake represents that, as of the Effective Date of this Agreement, the Processing Fees are passed-through to Subscriber without mark-up from third-party processors; however, Partake makes no representations or agreements to lower the Processing Fees during the Initial Term or any Renewal Term should better rates become available.
8. DEPOSITS OF SALES PROCEEDS.
a. Weekly Deposits.
If Subscriber selected to have sales proceeds deposited weekly, Partake will arrange for such sales proceeds to be deposited into the bank account provided by Subscriber on the following Monday for any given week. No fee shall be charged Subscriber for this service. Should such a Monday not be a Business Day, the sales proceeds deposit will occur no later than Wednesday of that week. Subscriber agrees and acknowledges that Partake’s payment processor may not be able to close out a transaction on the actual day on which the transaction consummated and that the deposit amount for such a transaction may be delayed until the next weekly deposit following the day on which the transaction is closed by the payment processor.
b. Daily Deposits.
If Subscriber selected to have sales proceeds deposited daily, Partake will arrange for such sales proceeds to be deposited into the bank account provided by Subscriber on the Business Day immediately following the day on which any transaction closed. Subscriber agrees to pay a 1% fee on the total amount of deposit, taken at time deposit, such that the total amount of a daily deposit on any given Business Day will be 99% of the total deposit. Subscriber agrees and acknowledges that Partake’s payment processor may not be able to close out a transaction on the actual Business day on which the transaction consummated and that the deposit amount for such a transaction will be delayed until the Business Day immediately following the day on which the transaction is closed by the payment processor.
For all Chargebacks finalized and closed by a Subscriber’s customer’s credit card network and charged against Partake, Partake will invoice Subscriber for the tendered amount of the disputed transaction, plus a Chargeback Fee of $25 per Chargeback.
Subscriber agrees and acknowledges that Partake has no obligation or responsibility to respond to, dispute, prosecute, or defend itself, Subscriber, or Partake’s payment processor any Chargebacks. Should Partake, in its sole and absolute discretion, fully or partially undertake a response, dispute, prosecution, or defense of a Chargeback, Subscriber agrees and acknowledges to fully and completely assist in such undertaking, including, without limitation, providing all necessary information or documentation to Partake in a timely manner.
As used herein, “Chargeback” means a Subscriber’s customer has disputed the charge with their credit card network (i.e. Visa, Mastercard, etc.).
10. INTEREST ON DELINQUENCIES
Interest will accrue on all unpaid amounts past due at the lesser of a rate of one percent (1%) per month simple interest or the maximum rate permitted by law until paid. All payments will be due and payable at Partake’s office set forth on the front hereof. If Services are discontinued because of Subscriber’s past due balance, and if Subscriber desires to have the food and beverage management service reactivated, Subscriber agrees to pay in advance to Partake a reconnect charge to be determined by Partake at Partake’s sole discretion. Subscriber grants Partake the right of setoff relative to any monies due by Subscriber to Partake.
Subscriber agrees and acknowledges that The System will calculate the sales tax required to be assessed, incurred, and/or paid by Partake as a result of Partake’s provision of the Services to Subscriber.
Subscriber agrees and acknowledges that Partake will not, cannot, and does not, calculate, collect, or otherwise guarantee the accuracy of calculation or the collection of any and all tax liability imposed by any federal, state, or local Law on Subscriber’s sales of food, beverage, retail products, or services, whether through the System and/or Services, or otherwise. Subscriber agrees and acknowledges that it is solely and completely responsible for dictating the amount of taxes to be charged and/or collected by the System or the Services.
Partake may modify the Fees to be paid herein upon Thirty (30) days’ written notice to Subscriber. Such notice may be delivered through the System. If the Fees are changed during the term, Subscriber shall have the option to terminate the agreement.
12. E-SIGN CONSENT
Partake and its affiliates and third-party service providers may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this E-sign Consent confirms your ability and consent to receive Communications electronically from Partake, its affiliates, and its third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If you choose not to agree to this Consent or you withdraw your consent, you may be restricted from using the Services.
a. Electronic Delivery of Communications and Use of Electronic Signatures
Under this Consent, Partake may provide all Communications electronically by email, by text message, or by making them accessible via Partake websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Consent, the Partake Privacy Notice, the Partake Seller Agreement and the Partake Hardware Agreement), (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
b. System Requirements
To access and retain the electronic Communications, you will need the following:
• A computer or mobile device with Internet or mobile connectivity.
• For desktop website-based Communications:
o Recent web browser that includes 256-bit encryption;
o The browser must have cookies enabled. Use of browser extensions may impair full website functionality; and
o Minimum recommended browser standards are the most recent versions of Mozilla Firefox (see http://www.mozilla.com for latest version), Apple Safari (see http://www.apple.com/safari for latest version), or Google Chrome (see http://www.google.com/chrome for latest version).
• For application-based Communications:
o A recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and
o The most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS.
• Access to the email address used to create an account for Partake Services.
• Sufficient storage space to save Communications and/or a printer to print them.
• If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add [email protected] to your email address book.
13. REVISIONS, DISCLOSURES AND NOTICES
We may amend the Terms at any time with notice that we deem to be reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute that arose before the changes will be governed by the Terms in place when the Dispute arose.
You agree to Partake’s E-Sign Consent. We may provide disclosures and notices required by law and other information about your Partake Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Partake Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered.
You may not, nor may you permit any third party, directly or indirectly, to:
1. export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII);
2. access or monitor any material or information on any Partake system using any manual process or robot, spider, scraper, or other automated means;
3. except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
4. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
5. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Partake;
6. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
7. transfer any rights granted to you under these General Terms;
8. use the Services in a way that distracts or prevents you from obeying traffic or safety laws;
9. use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;
10. use the Services for any illegal activity or goods or in any way that exposes you, other Partake users, our partners, or Partake to harm; or
11. otherwise use the Services except as expressly allowed under these Terms.
If we reasonably suspect that your Partake Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Partake Account, and any of your transactions with law enforcement.
15. YOUR CONTENT
The Services may include functionality for uploading or providing suggestions, recommendations, feedback, stories, photos, documents, logos, products, loyalty programs, promotions, advertisements and other materials or information (“Content”).
You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media for any reason, including to provide, promote, and/or incorporate into the Services. You retain all rights in your Content, subject to the rights you granted to us in these General Terms. You may modify or remove your Content via your Partake Account or by terminating your Partake Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Partake or its partners’ products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Partake, its affiliates or its customers to harm or liability of any nature.
Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. Partake may also monitor such Content to detect and prevent fraudulent activity or violations of Partake’s General Terms. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
16. INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property rights of others and ask you to do the same. We have adopted an Intellectual Property Policy regarding third-party claims that your material infringes the rights of others. We respond to all valid notices of such infringement, and our policy is to suspend or terminate the accounts of repeat infringers.
a. INTELLECTUAL PROPERTY POLICY
Subscriber agrees and acknowledges that Subscriber will take all necessary actions to protect, and will at all times act consistently with, preserving and creating equity and goodwill in Partake’s intellectual property, logos, branding, the Services, the System, and/or the color schemes comprising thereof, as if same belonged to Subscriber.
In addition to those limitations, disclaimers, and/or waivers of liability set forth herein, Subscriber agrees and acknowledges that Partake assumes no liability and specifically disclaims liability for unauthorized access to the System of any kind, including, without limitation, through the Internet or network, or for data corruption caused by any person or entity.
Subscriber acknowledges that Partake is providing marketing assets to help Subscriber promote Partake. Such marketing assets, their design, function, color, coordination, and scheme are the proprietary and protected intellectual property of Partake. Subscriber agrees and acknowledges that Partake takes all necessary actions to keep same private, confidential, and away from unreasonable and continuing public distribution.
Subscriber agrees and acknowledges that the utilization, maintenance, and display of the marketing assets is necessary to effectuate the spirit, terms, and conditions of this agreement. Accordingly, Subscriber agrees to, during the term of this agreement, utilize the marketing assets and display all items as directed and reasonably necessary for their intended use. Following the termination or expiration of this agreement, for any reason, Subscriber agrees to collect and return and/or destroy all existing material, as required by Partake in writing.
Subscriber will take all commercially reasonable actions or all actions required by Law to fully and completely disclose and inform any employee, representative, guest, or invitee of Subscriber of Partake’s System and Services. Partake will not be responsible for Subscriber’s failure to disclose or inform Subscriber’s customers. Subscriber agrees to Indemnify the Partake Parties for all Claims related to or arising in any way from Subscriber’s alleged or actual failure to disclose or inform or any alleged or actual violation of any privacy right or Law.
17. OWNERSHIP OF DATA
Subscriber agrees and acknowledges that, to the fullest extent of all applicable Laws, all data, information, payment information, records, transactions, receipts, and other electronic information and communications (“Data”) belongs to Partake; provided, however, that Subscriber will not own, control, manage, or be otherwise responsible for any personally identifiable information (“PII”), any information provided to Partake by Subscriber pursuant to Paragraph 0, or any information required to process credit card transactions, ACH transfers, or other electronic funds transfers of any kind (“Subscriber’s Data”). Subscriber agrees and acknowledges that Partake does not curate, hold, store, manage, or otherwise exercise dominion or control Data. Subscriber hereby irrevocably assigns, on behalf of Subscriber, its shareholders, directors, officers, employees, agents, successors, and assigns, all Data used by the System or in provision of the Services, but not Subscriber’s Data. Subscriber agrees, understands, and acknowledges that Subscriber has complete dominion, control, and responsibility for all of Subscriber’s Data.
In addition to those limitations, disclaimers, and/or waivers of liability set forth herein, Subscriber agrees and acknowledges that Partake assumes no liability and specifically disclaims liability for unauthorized access to the System of any kind, including, without limitation, through the Internet or network, or for data corruption caused by any person or entity.
This Privacy Notice describes how Partake and our affiliates (collectively, “Partake”, “us”, “we”) collect, use, disclose, transfer, store, retain or otherwise process your information when Subscriber (whether you are a person or business) apply or sign up for a Partake account or other services through Partake’s website or applications (collectively, “Services”).
This Privacy Notice applies to your use of Partake Services, and covers information collected in connection with Subscriber access to and use of Partake Services. Please read this Privacy Notice carefully. By continuing to interact with Partake Services, Subscriber is consenting to the practices described in this Privacy Notice.
Subscriber acknowledges and agrees that Subscriber is principally engaging Partake to provide food, beverage, and retail product sales management services. Subscriber agrees and acknowledges that the Services do not violate any privacy standards, rules, or regulations of Subscriber which may apply to Subscriber or Subscriber’s shareholders, owners, directors, officers, employees, agents, representatives, entrants, or customers. Subscriber agrees and acknowledges that it will provide Partake notice, in writing, of any potential privacy concerns and disclose the nature of its arrangement with Partake to all of Consumer’s users.
a. INFORMATION WE COLLECT ABOUT YOU
We need to collect information about you to provide you with the Services or the support you request. The type of information we collect can vary depending on the country from which you access our Services. Additionally, you can choose to voluntarily provide information to us.
b. INFORMATION YOU PROVIDE
We collect information you provide when you apply or sign up for a Partake account or other Services, go through our identity or account verification process, authenticate into your account, communicate with us, answer our surveys, upload content, or otherwise use the Services.
We collect information about you when you use our Services, including:
• Identification Information. Your name; email address; mailing address; phone number; photograph; birthdate; passport, driver’s license, Social Security, Taxpayer Identification, or other government-issued identification; or other historical, contact, and demographic information when you apply or sign up for a Partake account or other Services, signature, and authentication credentials (for example, information you use to login to your account), including IP address.
• Financial Information. Information such as bank account, payment card numbers, credit reports, and other publicly available information.
• Tax information. Withholding allowances and tax filing status.
• Transaction Information. When you use our Services to make, accept, request, or record payments, we collect information about when and where the transactions occur, the names of the transacting parties, a description of the transactions, the payment or transfer amounts, billing and shipping information, and the devices and payment methods used to complete the transactions.
• Other Information You Provide. Information that you voluntarily provide to us, including your survey responses; participation in contests, promotions, or other prospective seller marketing forms or devices; suggestions for improvements; referrals; or any other actions performed on the Services.
c. INFORMATION WE COLLECT FROM YOUR USE OF OUR SERVICES
We collect information about you and the devices you use to access the Services, such as your computer, mobile phone, or tablet.
The information that we collect includes:
• Device Information. Information about your device, including your hardware model, operating system and version, device name, unique device identifier, mobile network information, and information about the device’s interaction with our Services.
• Use Information. Information about how you use our Services, including your access time, “log-in” and “log-out” information, browser type and language, country and language setting on your device, Internet Protocol (“IP”) address, the domain name of your Internet service provider, other attributes about your browser, mobile device and operating system, any specific page you visit on our platform, content you view, features you use, the date and time of your visit to or use of the Services, your search terms, the website you visited before you visited or used the Services, data about how you interact with our Services, and other clickstream data.
• Business Information. Information about products and services you sell (including inventory, pricing and other data) and other information you provide about you or your business (including appointment, staffing availability, employee, payroll and contact data).
• Customer Information. Information you collect from your customers, including email address, phone number, payment information, or other information.
d. INFORMATION WE COLLECT FROM OTHER SOURCES
We also collect information about you from third parties, including:
• Identity Verification. Information from third-party verification services, credit bureaus, financial institutions, mailing list providers, and publicly available sources. In some circumstances, where lawful, this information may include your government-issued identification number.
• Background Information. To the extent permitted by applicable laws, we may obtain background check reports from public records of criminal convictions and arrest records. We may use your information, including your full name, government-issued identification number, and date of birth, to obtain such reports.
• Credit, Compliance and Fraud. Information about you from third parties in connection with any credit investigation, credit eligibility, identity or account verification process, fraud detection process, or collection procedure, or as may otherwise be required by applicable law. This includes, without limitation, the receipt and exchange of account or credit-related information with any credit reporting agency or credit bureau, where lawful, and any person or corporation with whom you have had, currently have, or may have a financial relationship, including without limitation past, present, and future places of employment, financial institutions, and personal reporting agencies.
e. HOW WE USE YOUR INFORMATION
We may use information about you for a number of purposes, including:
Providing, Improving, and Developing our Services
• Determining whether the Services are available in your country;
• Processing or recording payment transactions or money transfers;
• Otherwise providing you with the Partake products and features you choose to use;
• Displaying your historical transaction information;
• Providing, maintaining and improving our Services;
• Developing new products and services;
• Delivering the information and support you request, including technical notices, security alerts, and support and administrative messages including to resolve disputes, collect fees, and provide assistance for problems with our Services or your Partake account;
• Improving, personalizing, and facilitating your use of our Services;
• Measuring, tracking, and analyzing trends and usage in connection with your use or the performance of our Services.
Communicating with You About our Services
• Sending you information we think you may find useful or which you have requested from us about our products and services;
• Conducting surveys and collecting feedback about our Services.
Protecting our Services and Maintaining a Trusted Environment
• Investigating, detecting, preventing, or reporting fraud, misrepresentations, security breaches or incidents, other potentially prohibited or illegal activities, or to otherwise help protect your account, including to dispute chargebacks on your behalf;
• Protecting our, our customers’, or your customers’ rights or property, or the security or integrity of our Services;
• Enforcing our Terms of Service or other applicable agreements or policies;
• Verifying your identity (e.g., through government-issued identification numbers);
• Complying with any applicable laws or regulations, or in response to lawful requests for information from the government or through legal process;
• Fulfilling any other purpose disclosed to you in connection with our Services;
• Contacting you to resolve disputes, collect fees, and provide assistance with our Services.
Advertising and Marketing
• Marketing of our Services;
• Communicating with you about opportunities, products, services, contests, promotions, discounts, incentives, surveys, and rewards offered by us and select partners;
• If we send you marketing emails, each email will contain instructions permitting you to “opt out” of receiving future marketing or other communications.
• For any other purpose disclosed to you in connection with our Services from time to time.
f. HOW WE SHARE YOUR INFORMATION
We may share information about you as follows:
With Other Users of our Services with Whom You Interact
• With other users of our Services with whom you interact through your own use of our Services. For example, we may share information when you make or accept a payment, appointment, or money transfer using our Services.
With our Affiliates
• With our group companies and corporate affiliates, for the purposes outlined above.
With Third Parties
• With third parties to provide, maintain, and improve our Services, including service providers who access information about you to perform services on our behalf (e.g., fraud prevention, identity verification, and fee collection services), as well as financial institutions, payment networks, payment card associations, credit bureaus, partners providing services on Partake’s behalf, and other entities in connection with the Services;
• With third parties that run advertising campaigns, contests, special offers, loyalty/reward programs, or other events or activities on our behalf or in connection with our Services.
Business Transfers and Corporate Changes
• To a subsequent owner, co-owner, or operator of one or more of the Services; or
• In connection with (including, without limitation, during the negotiation or due diligence process of) a corporate merger, consolidation, or restructuring; the sale of substantially all of our stock and/or assets; financing, acquisition, divestiture, or dissolution of all or a portion of our business; or other corporate change.
Safety and Compliance with Law
• If we believe that disclosure is reasonably necessary (i) to comply with any applicable law, regulation, legal process or governmental request (e.g., from tax authorities, law enforcement agencies, etc.); (ii) to enforce or comply with our General Terms or other applicable agreements or policies; (iii) to protect our or our customers’ rights or property, or the security or integrity of our Services; or (iv) to protect us, users of our Services or the public from harm, fraud, or potentially prohibited or illegal activities.
With Your Consent
• With your consent. For example:
o At your direction or as described at the time you agree to share;
o When you authorize a third party application or website to access your information.
Aggregated and Anonymized Information
• We also may share (within our group of companies or with third parties) aggregated and anonymized information that does not specifically identify you or any individual user of our Services.
g. HOW LONG WE RETAIN YOUR INFORMATION
We generally retain your information as long as reasonably necessary to provide you the Services or to comply with applicable law. However, even after you deactivate your account, we can retain copies of information about you and any transactions or Services in which you may have participated for a period of time that is consistent with applicable law, applicable statute of limitations or as we believe is reasonably necessary to comply with applicable law, regulation, legal process, or governmental request, to detect or prevent fraud, to collect fees owed, to resolve disputes, to address problems with our Services, to assist with investigations, to enforce our General Terms or other applicable agreements or policies, or to take any other actions consistent with applicable law.
h. COOKIES AND OTHER SIMILAR TECHNOLOGIES
We use various technologies to collect information when you access or use our Services, including placing a piece of code, commonly referred to as a “cookie,” or similar technology on your device and using web beacons. Cookies are small data files that are stored on your hard drive or in your device memory when you visit a website or view a message. Among other things, cookies support the integrity of our registration process, retain your preferences and account settings, and help evaluate and compile aggregated statistics about user activity. We will begin collecting information about you or from activity on devices you use as soon as you use our Services. By using our Services, you permit us to collect and use your information from activity on devices you use in accordance with this Privacy Notice. For more information and to learn how to block or delete cookies used in the Services, please see below.
Certain cookies we use last only for the duration of your web or application session and expire when you close your browser or exit the application. Other cookies are used to remember you when you return to use the Services and, as such, will last longer.
• Remember that you have visited us or used the Services before. This allows us to identify the number of unique visitors we receive, so that we can provide enough capacity to accommodate all of our users.
• Customize elements of the promotional layout and/or content of our Services.
• Collect data about the way you interact with our Services (e.g., when you use certain features).
• Collect data to assess and improve our advertising campaigns, including sending information to our business partners.
• Collect anonymous statistical information about how you use the Services (including the length of your web or application session) and the location from which you access the Services, so that we can improve the Services and learn which elements and functions of the Services are most popular with our users.
Some of the cookies used in the Services are set by us, and others are set by third parties who deliver services on our behalf.
Most web and mobile device browsers are set to automatically accept cookies by default. However, you can change your browser settings to prevent automatic acceptance of cookies, or to notify you each time a cookie is set.
You also can learn more about cookies by visiting http://www.allaboutcookies.org, which includes additional useful information on cookies and how to block cookies on different types of browsers and mobile devices. Please note, however, that by blocking or deleting cookies used in the Services, you may not be able to take full advantage of the Services.
We also may collect information using web beacons. Web beacons are electronic images that may be used in our Services or emails. We use web beacons to deliver cookies, track the number of visits to our website and apps, understand usage and campaign effectiveness, and determine whether an email has been opened and acted upon.
i. THIRD-PARTY ADVERTISING AND ANALYTICS
This Privacy Notice does not apply to, and we are not responsible for, third-party cookies, web beacons, or other tracking technologies, which are covered by such third parties’ privacy policies. For more information, we encourage you to check the privacy policies of these third parties to learn about their privacy practices. For more information about targeted advertising specifically, please visit http://www.aboutads.info/choices.
Examples of our third-party service providers to help deliver our Services or to connect to our Services include:
• Google Analytics: We use Google Analytics to understand how our Services perform and how you use them. To learn more about how Google processes your data, please visit https://www.google.com/policies/privacy/. To opt out of Google Analytics please visit https://tools.google.com/dlpage/gaoptout.
• Facebook: We use Facebook to advertise and market our services. We also use Facebook Connect API to allow you to connect your Facebook account to your Partake account. To learn more about how Facebook uses your data please visit https://www.facebook.com/help/325807937506242/ or log on to your Facebook account and access your settings. To understand more about Facebook advertising please see here https://www.facebook.com/about/ads.
j. YOUR CHOICES
You may access, change, or correct information that you have provided by logging into your Partake account at any time or by making a request to us using the contact details below, in which case we may need to verify your identity before granting access or otherwise changing or correcting your information.
Deactivating Your Account
If you wish to deactivate your account, you can do so by logging into your Partake account or by emailing us using the contact details provided below.
In order to provide certain Services, we may require access to location information, including precise geolocation information collected from your device. If you do not consent to collection of this information, certain Services will not function properly and you will not be able to use those Services. You can stop our collection of location information at any time by changing the preferences on your mobile device. If you do so, some of our mobile applications will no longer function. You also may stop our collection of location information via mobile application by following the standard uninstall process to remove all Partake mobile applications from your device.
Do Not Track
Do Not Track (“DNT”) is an optional browser setting that allows you to express your preferences regarding tracking across websites. Partake does not have a mechanism in place to respond to DNT signals. Partake does track some activity across websites (including your search terms, the website you visited before you visited or used the Services, and other clickstream data) and we may continue to collect information in the manner described in this Privacy Notice from web browsers that have enabled DNT signals or similar mechanisms.
You can opt out of receiving promotional messages from Partake by following the instructions in those messages. If you decide to opt out, we can still send you non-promotional communications, such as digital receipts and messages about your account or our ongoing business relations.
California Privacy Rights
California law permits residents of California to request certain details about our disclosure of your personal information to third parties for direct marketing purposes during the immediately preceding calendar year. If you are a California resident and would like to request this information, please contact us at the address listed below.
We take reasonable measures, including administrative, technical, and physical safeguards, to protect your information from loss, theft, misuse, and unauthorized access, disclosure, alteration, and destruction. Nevertheless, the internet is not a 100% secure environment, and we cannot guarantee absolute security of the transmission or storage of your information. We hold information about you both at our own premises and with the assistance of third-party service providers.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Partake Account or any other breach of security. In the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Partake Account subject to dispute) will be final and binding on all parties.
l. STORAGE AND PROCESSING
We may, and we may use third-party service providers to, process and store your information in the United States and other countries
m. CHANGES TO THIS PRIVACY NOTICE
We may amend this Privacy Notice from time to time by posting a revised version and updating the “Effective Date” above. The revised version will be effective on the “Effective Date” listed. We will provide you with reasonable prior notice of material changes in how we use your information, including by email, if you have provided an email address. If you disagree with these changes, you may cancel your account at any time. Your continued use of our Services constitutes your consent to any amendment of this Privacy Notice.
The terms, but not the existence, of this Agreement shall be treated as confidential information by the parties, and neither party shall disclose the terms or conditions of this Agreement to any third party (other than its Related Companies and divested businesses licensed pursuant to this Agreement) without the prior written permission of the other party. Each party, however, shall have (i) the right to represent to third parties that such party is licensed for the products and patents as provided by this Agreement, and (ii) the right to make disclosures to the extent required by an order of court, regulation of another governmental body, or otherwise by law or by a stock exchange, provided that the party shall promptly provide written notice to the non-disclosing party of the intended disclosure and of the court order or regulation prior to such disclosure and that the party takes all reasonable steps to minimize such disclosure by, for example, obtaining a protective order and/or appropriate confidentiality provisions requiring that such information to be disclosed be used only for the purpose for which such law, order, regulation or requirement was issued. Additionally, each party may disclose this Agreement or its contents to the extent reasonably necessary, under a typical confidentiality expectation, to its accountants, attorneys, financial advisors and in connection with due diligence activities relating to the sale of the stock or a portion of the business of a party or its Related Companies.
20. Limitations of Liability
In addition to those limitations, disclaimers, and waivers set forth herein, Subscriber understands, acknowledges, and agrees that Partake does not and cannot prevent, prohibit, limit, mitigate, or otherwise insure personal injury, or loss or damage of life or property; the payments provided for herein are based solely on the value of the System and Services, as purchased and subscribed to hereunder; that Partake makes no guaranty or warranty, and expressly disclaims all warranties or guarantees, including, without limitation any express or implied warranty of merchantability, fitness for a particular purpose, that the System or Services will avert, prevent, or mitigate a loss of any kind or the consequences of the loss of any kind which the System or the Services may be understood or interpreted to detect or avert.
Subscriber acknowledges and agrees that the type, character, quantity, and extent of either the potential risks to Subscriber, its entrants, or any person’s life, investment, or property and/or any actual damages thereto, which may result from any alleged or actual failure to perform any of Partake’s or Subscriber’s obligations herein, including, but not limited to, provision, maintenance, repair, or the failure of the System to properly operate, are uncertain and any estimation of such damages would be unreasonable, impractical, and extremely difficult, because, among other things, the uncertainty of: (a) the amount or value of Subscriber’s property or the property of others kept on the premises which may be lost, stolen, destroyed, damaged, or otherwise affected by occurrences which the System or Service may be understood or interpreted to detect or avert; (b) the response time of any first responder, should any be dispatched as a result of notification; (c) what portion, if any, of any loss, would be proximately caused by any actual or alleged failure by Partake to perform the Services or by the System to operate; (d) the nature of occurrences which might cause injury or death to Subscriber or any other person which the System or Services are designed to detect or avert; or (e) the reliability of the broadband internet connection, network, hardware, internet service provider, or telephonic communication lines to consistently connect to Subscriber’s facilities or the Equipment; or (f) training, attendance, and staffing requirements at Partake’s central food and beverage management stations or facilities.
SUBSCRIBER UNDERSTANDS AND AGREES THAT, DUE TO THE UNCERTAINTY DESCRIBED IMMEDIATELY ABOVE, IF PARTAKE SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE TO PROPERLY PERFORM OR THE FAILURE OF PARTAKE TO PERFORM ANY OBLIGATION OR TO PROVIDE THE SERVICES, INCLUDING, BUT NOT LIMITED TO, RECEIVING DATA, RECOGNIZING A PROBLEM, NOTIFICATION OF ANY PERSON OR ENTITY OF THE PROBLEM, OR THE FAILURE OF ANY SERVICE OR EQUIPMENT IN ANY RESPECT WHATSOEVER, CUSTOMER ACKNOWLEDGES AND AGREES THAT IN EVERY EVENT AND FOR EVERY CLAIM, PARTAKE’S LIABILITY TO CUSTOMER WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF 10% OF THE ANNUAL PAYMENTS CONTRACTED FOR HEREIN OR FIVE HUNDRED DOLLARS ($500.00). CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS LIMITATION WILL BE CUSTOMER’S SOLE AND EXCLUSIVE MEASURE OF DAMAGES, AND THAT PROVISIONS OF THIS SECTION WILL APPLY TO ALL LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, ACTUALLY OR ALLEGEDLY RESULTS DIRECTLY OR INDIRECTLY, TO PERSONS OR PROPERTY, FROM PERFORMANCE OR NON-PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS SUBSCRIPTION AGREEMENT, OR FROM ANY NEGLIGENCE OR FAILURE TO PERFORM DUTIES UNDER THIS SUBSCRIPTION AGREEMENT, ACTIVE OR OTHERWISE, OF PARTAKE, ITS PARENTS, AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (THE “PARTAKE PARTIES”); PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION ON PARTAKE’S LIABILITY WILL NOT APPLY IN THE EVENT OF WILLFUL MISCONDUCT ON THE PART OF AN ACTIVE EMPLOYEE OF PARTAKE ACTING WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT. CUSTOMER AGREES AND ACKNOWLEDGES THAT, IN THE EVENT THIS LIMITATION IS ADJUDGED TO BE IN VIOLATION OF ANY LAW, ANY COURT OF COMPETENT JURISDICTION MAY BE REFORMED TO THE LOWEST POSSIBLE LIMITATION OF LIABILITY WHICH IS NOT IN VIOLATION OF LAW. CUSTOMER AGREES AND ACKNOWLEDGES THAT, DUE TO THE NATURE OF ITS SUBSCRIPTION AGREEMENT WITH PARTAKE, THIS LIMITATION IS TO APPLY TO ANY ACTUAL, POTENTIAL, OR ALLEGED GROSS NEGLIGENCE OF PARTAKE. PARTAKE MAY ASSUME ADDITIONAL LIABILITY BY ATTACHING AN AMENDMENT TO THIS CONTRACT STATING THE EXTENT OF ANY ADDITIONAL LIABILITY AND ANY ADDITIONAL COST, IF APPROVED BY BOTH PARTIES. CUSTOMER AGREES THAT, NOTWITHSTANDING ANY LANGUAGE, TERM, OR CONDITION TO THE CONTRARY, PARTAKE IS NOT ACTING AS AN INSURER OR OTHER MANAGER OR DISTRIBUTOR OF RISK ON CUSTOMER’S BEHALF.
21. Third-Party Indemnification
Partake hereby agrees to defend, indemnify, and hold harmless (“Indemnify”) Subscriber against any and all third-party claims, suits, actions, losses, damages (actual, consequential, exemplary or other), liabilities, obligations, and costs reasonably incurred in the defense of any claim whatsoever, including all expenses connected therewith and reasonable counsel fees (“Claims”) directly or indirectly arising out of or in any way related to: (a) any violation of any applicable Laws; (b), negligent actions or inactions or willful misconduct of Partake or any employee, representative, or agent of Partake during the performance of the Services; or (c) any infringement of any intellectual property right effective in the United States, except for any infringement claimed the basis of which is any information provided by Subscriber or known to Subscriber; provided, however, that Partake will not be obligated to defend, indemnify, or hold a Subscriber harmless for any Claim which includes a Claim or allegation of Subscriber’s negligence or other wrongful conduct. Further provided, that, notwithstanding anything herein to the contrary, Partake’s foregoing indemnity, defense, and hold harmless obligations will only apply to Claims in which Partake is the sole but-for cause of any complainant’s injury.
Subscriber hereby agrees to Indemnify the Partake Parties against any and all third-party Claims directly or indirectly arising out of or in any way related to: (a) any alleged or actual negligent conduct of Partake related to the System; (b) any alleged or actual negligent or grossly negligent conduct of Partake related to the Services, including, without limitation, any claims related to any customer, employee, agent, invitee, guest, or licensee of Subscriber purchasing or consuming any beverage containing alcohol; (c) any of Subscriber’s alleged or actual negligent conduct or willful misconduct of Subscriber; or (d) any actual or alleged violation of any privacy right, including, without limitation, the loss or corruption of any of Subscriber’s Data. Notwithstanding the foregoing (but withstanding subsection (b) hereof), this indemnity will not apply to Subscriber’s actual liability caused by actual negligent or grossly negligent conduct or willful misconduct of Partake’.
These obligations of the Parties to defend, indemnify, and hold harmless each other will remain in full force and effect for a reasonable period following termination of this Agreement for any reason.
22. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS HEREIN, PARTAKE MAKES NO EXPRESS WARRANTIES AND DISCLAIMS ALL OTHER WARANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. PARTAKE DOES NOT REPRESENT NOR WARRANT THAT THE SYSTEM WILL ALWAYS PERFORM AS EXPECTED; THAT THE SYSTEM WILL PREVENT ANY LOSS, INJURY, OR DAMAGE, TO CUSTOMER’S OR ITS USERS’ DATA, INCLUDIING, WITHOUT LIMITATION, ORDER DATA, PAYMENT DATA, OR PERSONALLY IDENTIFIABLE INFORMATION, WHETHER BY FAILURE OF THE SYSTEM, INFILTRATION OF THE SYSTEM, OR OTHERWISE; THAT CUSTOMER’S OR SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION; OR THAT THE PROCESS WILL IN ALL CASES PROVIDE THE SERVICES FOR WHICH IT WAS INSTALLED AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. THIS WARRANTY DOES NOT COVER ANY DAMAGE TO MATERIAL OR EQUIPMENT. CUSTOMER AGREES THAT PARTAKE WILL NOT BE LIABLE FOR INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY TYPE.
CUSTOMER AGREES THAT PARTAKE EXPRESSLY DISCLAIMS AND HAS NOT AND DOES NOT ASSUME ANY LIABILITY ON ANY LOSSES AS A RESULT OF THE SYSTEM OR SERVICES NOT WORKING. CUSTOMER AGREES THAT THIS DISCLAIMER IS REASONABLE AND NECESSARY TO INDUCE PARTAKE INTO THIS AGREEMENT BECAUSE, IN ADDITION TO ALL OTHER COMMERCIAL AND VIABLE REASONS, PARTAKE COULD NOT OFFER THE SERVICES OR THE SYSTEM WERE PARTAKE TO ASSUME OR CUSTOMER TO IMPOSE, ON BEHALF OF ITSELF OR ANY OTHER, SUCH LIABILITY.
Notwithstanding the forgoing, Partake represents and warrants to Subscriber that: (i) Partake is engaged in the business of performing the Services hereunder and has the expertise to perform the Services; (ii) Partake will have all permits, Subscriber’s Materials, certifications, or approvals actually required by applicable Law that Partake believes is needed; (iii) Partake will perform the Services in compliance with the documentation and procedures provided by Subscriber to Partake, and any attachments and schedules; and (iv) Partake is an independent contractor of Subscriber and will have and maintain exclusive control over its employees, agents, and operations, and, except as specifically provided for herein, neither Partake nor anyone employed by it will be deemed to be the agent, representative, or employee of the Subscriber.
a. Force Majeure
Subscriber agrees and acknowledges that Partake assumes no liability and specifically disclaims liability for the interruption of Services due to riots, floods, inclement weather, electrical storms, earthquakes, fire, power or Internet connectivity failures, gas leaks, interruption or unavailability of telephone, Internet, fiber, or other network components, whether provided by Partake or otherwise, other acts of God, or for any other cause beyond the direct control of Partake. Partake will not be required to provide Services to Subscriber while interruption of Services due to any such cause and for a reasonable time thereafter.
Partake will have the right to assign this Agreement to any other person, firm, or corporation without the prior consent of Subscriber. Partake may subcontract any surveillance, food and beverage management, maintenance, emergency response, or other Service without the prior consent of Subscriber. Subscriber acknowledges that this Agreement will inure to the benefit of and are applicable to any valid assignees and/or subcontractors of Partake, and that they bind Subscriber with respect to such assignees and/or subcontractors with the same force and effect as to Partake.
Subscriber acknowledges and agrees that the vacating, sale, or any transfer of ownership of Subscriber’s premises will not relieve the Subscriber of duties and obligations under this Agreement. Subscriber agrees to disclose the existence, terms, conditions, and obligations of this Agreement to any transferee, of any kind, of Subscriber’s premises. Partake shall have the option to terminate this agreement at any time following the sale, assignment, or transfer of ownership of the premises by Subscriber.
As used throughout herein, the term “Business Day” means any day other than a weekend or a public or federal banking holiday.
Any notice required, under the terms of this Agreement will be sent via e-mail to at least two (2) employee or representatives of a Party and via certified mail, return receipt requested, or other delivery service with delivery confirmation, to the address for the Party set forth above or to any other address provided by one Party to the other from time to time in writing. Such notice will be deemed given at the latter date of (a) sending via e-mail or (b) delivered to or deposited in the United States mail or other appropriate delivery service.
26. GOVERNING LAW
ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT, OR INTERPRETATION OF THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH PARTY AGREES THAT ALL PROCEEDINGS CONCERNING SUCH QUESTIONS WILL BE COMMENCED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS ACTUALLY SITTING IN DALLAS COUNTY, TEXAS. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS OF DALLAS COUNTY, TEXAS AND THE STATE OF TEXAS FOR THE ADJUDICATION OF ALL DISPUTES OR QUESTIONS HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN. EACH PARTY HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION, OR OTHER PROCEEDING, ANY CLAIM OR ARGUMENT THAT SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS OR THAT SUCH SUIT, ACTION, OR OTHER PROCEEDING IS IMPROPER OR IS AN INCONVENIENT VENUE FOR SUCH PROCEEDING.
This writing, together with its attachments, exhibits, schedules, addendums, and/or riders, if any, is intended by the parties as the full and final expression of the Parties’ agreements and as the complete and exclusive statement of the terms thereof. This this Agreement supersedes all prior representations, understandings, or agreements of the Parties, whether written or oral, and will constitute the sole terms and conditions of the Services. This this Agreement can be modified only by a writing signed by the parties or their duly authorized agent. No failure to inform, notice, prosecute, or otherwise act on a term or condition, or breach of a term or condition, whether material or immaterial, of this Agreement will be construed to be a waiver of such term, condition, or breach. In the event any of the terms or provisions of this Agreement will be declared invalid or inoperative by operation of law or otherwise, the remaining terms and provisions will remain in full force and effect.
The above item is the last paragraph of this Agreement.