Last Updated: October 19, 2020
THIS VENUE USER AGREEMENT (THIS “AGREEMENT”) RELATES TO THE MOBILE PAYMENT SERVICES PROVIDED BY QORUM, INC. (“COMPANY”) VIA ITS WEBSITE ( THE “WEBSITE”) OR ITS MOBILE APPLICATION (THE “APPLICATION”). PLEASE READ IT CAREFULLY.
BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR COMPLETING THE REGISTRATION PROCESS THROUGH THE WEBSITE OR THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY OR INDIVIDUAL YOU HAVE NAMED AS THE USER (“VENUE”) AND TO BIND THE VENUE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND (2) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF THE VENUE.
THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN THE “DISPUTE RESOLUTION” SECTION (SECTION 8) BELOW. THUS, NEITHER COMPANY NOR VENUE WILL HAVE THE RIGHT TO GO TO COURT OR HAVE A JUDGE OR JURY RESOLVE ANY DISPUTE BETWEEN THEM. ANY ARBITRATION WILL BE INDIVIDUAL, MEANING THAT VENUE CANNOT PARTICIPATE IN AN ARBITRATION AGAINST COMPANY AS PART OF A CLASS. VENUE UNDERSTANDS THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREES TO ABIDE BY ITS TERMS.
THIS AGREEMENT ALSO REQUIRES VENUE TO PROCESS ALL MOBILE PAYMENTS AT THE VENUE THROUGH COMPANY’S SERVICE FOR AT LEAST TWO YEARS (SUBJECT TO CERTAIN EXCEPTIONS NOTED BELOW).
During the Term (as defined below), Company shall provide mobile payment services (the “Services”) to Venue via the Website and the Application. Venue acknowledges and agrees that Company may enhance or otherwise change the Services at any time, in any way, without notice.
The term of this Agreement will start on the date Venue first registers on the Website or the Application and will continue until Venue or Company terminates it. Either Venue or Company may terminate this Agreement upon notice to the other. Sections 5, 6 (for the period of time specified therein), 8 and 9 will survive termination of this Agreement and remain effective and enforceable thereafter.
3. INTELLECTUAL PROPERTY: As between Company and Venue, Company owns the Services, including but not limited to the Website and Application, and all intellectual property and other rights therein or relating thereto. This Agreement does not grant Venue any license or other rights under the Company’s intellectual property, other than the right to use the Services in accordance with this Agreement. Venue authorizes Company to use Venue’s name, logo and other trademarks for the purpose of identifying Venue as a customer in Company’s advertising and promotional materials and to describe Company’s use of and experience with the Services.
4. DISCLAIMER OF WARRANTIES: Venue acknowledges and agrees that use of the Service, including the Website and Application, is at Venue’s sole risk. To the maximum extent allowed under applicable law, the Service, including the Website, Application and all maintenance, support or other services that relate in any way to the Services, are provided "AS IS," without warranty of any kind, and Company, its affiliates and their respective licensors, suppliers and service providers expressly disclaim all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
5. LIMITATION OF LIABILITY:
IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED U.S.$1,000. FURTHER, IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES OR FOR LOST PROFITS OR LOSSES ASSOCIATED WITH BUSINESS INTERRUPTIONS, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
6. SERVICES PERIOD:
Venue acknowledges and understands that Company will incur significant, unrecoverable fixed costs to enable Venue to offer a mobile payment option to Venue’s customers and to encourage consumers to patronize Venue and use that option. Those costs may include, but will not necessarily be limited to, (1) transaction services license fees, mobile ordering license fees, point of sale API access fees, and potentially other fees and costs required to authorize and enable Venue to accept mobile payments through Venue’s point of sale system, (2) costs Company incurs to provide Venue with the training and support it needs to accept mobile payments using the Services, and (3) Zenreach installation fees, associated hardware costs and subscription fees and other fees and costs of marketing or promoting Venue or the mobile payment option available at Venue. Venue further acknowledges and understands that Company offers the Services to Venue without charge, because Company and Venue each intends and expects Company to receive a share of the interchange fees collected with respect to each and every mobile payment made at Venue by its customers for a period of at least two years. Accordingly, during the period starting on the date of this Agreement and continuing until two years after the date that Venue first processes a mobile payment using the Services, Venue will use the Services for each and every mobile payment made by Venue’s customers at Venue; provided that Venue’s obligations under this Section 6 will terminate (i) if Company terminates this Agreement or (ii) if Company ceases to provide mobile payment services. Venue acknowledges and understands that its promise to process all bar and dine-in mobile payments made at Venue using the Services during the two-year period described above is the only reason that Company is willing to incur the costs described above and that, if Venue had not made that promise, Company would have charged Venue a fee for the Services sufficient to cover those costs.
Company shall have the right to assign this Agreement (or any of its rights hereunder) to any individual or entity. Neither this Agreement nor any obligations hereunder shall be assignable or delegable by Venue, and any purported assignment or delegation in violation of the foregoing shall be null and void ab initio.
8. DISPUTE RESOLUTION:
A. “Dispute” as used in this Section 8 means any dispute arising out of or in any way related to this Agreements, any amendments to this Agreement, or the subject matter of this Agreement, including, but not limited to, any contract, tort, statutory or equity claims that relate in any way to (1) this Agreement, (2) the Services, Website or Application, or (3) any services that relate in any way to the Services, Website or Application.
B. This Section 8 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
C. Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between Company and Venue will be subject to binding arbitration.
D. Venue and Company agree that there will be no right to a jury trial or any other right to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (the "FAA") to the maximum extent permitted by applicable law.
E. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and either party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
F. Venue and Company agree that any Dispute is personal to them, and any such Dispute shall only be resolved by an individual arbitration. Neither Venue nor Company agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
G. The arbitration of the Dispute will be administered by the American Arbitration Association (the “AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that Company and Venue mutually agree upon. If, after making a reasonable effort, Company and Venue are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules, or the appropriate rules of any alternative arbitration forum selected by Venue and Company or appointed by a court, subject to the following modifications:
(i) The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes.
(ii) As limited by the FAA, the terms of this Agreement, and the applicable arbitration rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.
(iii) The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
(iv) In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Agreement (Section 5), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided, however, that if the effectiveness of any of these restrictions is limited by applicable substantive law or by the applicable rules of arbitration, that restriction will only be enforced to the extent permitted by such law or rules.
v) The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys' fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein.
(vi) Company will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of Company to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner.
H. With the exception of the provision above that the enforceability of this Section 8 is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California and of the United States of America applicable to contracts entered into and performed in California by residents thereof.
9. MISCELLANEOUS: This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral and all prior or contemporaneous written communications with respect to such subject matter. This agreement shall not be amended unless each party hereto affirmatively and unambiguously indicates its agreement to such amendment, including, but not limited to, by expressly consenting thereto in writing or over email or, if consenting online, by clicking on a box under circumstances that clearly indicate such consent. No waiver of any breach, right or remedy under this Agreement shall be effective unless it is in a writing signed by the party to be charged therewith, and any such waiver shall be effective only in the specific instance and for the specific purpose specified in such writing. Should any provision of this Agreement be held invalid or unenforceable, the remainder of this Agreement shall be effective as though such invalid or unenforceable provision had not been contained in this Agreement.