THIS RM LOYALTY SERVICES AGREEMENT (hereinafter “Agreement”) is entered into by and between you (“USER”) and Shift4 Payments, LLC d/b/a Restaurant Manager (“Company”) and comes into effect when USER submits to Company a completed RM Loyalty Service Enrollment Form.
1. Performance by Company
(a) Company shall provide USER with a password protected RM Loyalty Portal on a secure server and interface said portal directly to the Restaurant Manager POS system installed on the premises of USER’s business.
(b) Company shall provide USER with a link to said portal that may be embedded on any single website registered directly to USER so that USERís customers may track loyalty points earned and redeemed.
(c) Company shall be responsible for maintenance of all hardware and software required to host the RM Loyalty Portal on the secure server and ensure that the portal is accessible via an Internet connections.
(d) Company shall be responsible for maintenance of all hardware and software required to host the Online Ordering Portal on the secure server and ensure that the portal is accessible via an Internet connections.
(e) Company shall provide direct phone support to USER in preparing to launch the RM Loyalty Service and agrees to assist with maintenance of in-store access to the RM Loyalty Service for a period of fourteen (14) days after the first promotional message is broadcast.
2. Responsibilities of USER
(a) USER is duly organized and validly existing under the laws of the state where premises are located and has full authority to enter into this Agreement and to transact the business herein contemplated.
(b) USER agrees that submission of the RM Loyalty Enrollment Form constitutes acceptance of the terms of this Agreement.
(c) USER agrees to retain the services of an authorized Restaurant Manager reseller to provide the equipment, network and additional in-store infrastructure required to access the RM Loyalty Service portal established by Company and to engage this same reseller to maintain in-store access to the RM Loyalty Service after the initial fourteen day launch period described in Paragraph 1(d) of this Agreement.
(d) USER is responsible for ensuring that in-store infrastructure, business procedures and POS System meet the Data Security Standards of the Payment Card Industry as published in the Self Assessment Questionnaire <https://www.pcisecuritystandards.org/saq/index.shtml>
(e) USER shall be responsible for the content and result of the content posted to their RM Loyalty Service portal. USER shall comply with all applicable rules, laws and regulations in connection with the content of the RM Loyalty Service. This content includes but is not limited to products, prices, and any information, or messages published on the portal. USER represents that any elements of text, graphics, photos, designs, trademarks or other artwork forwarded to Company are owned by USER or that USER has permission from the rightful owner to use, and will hold harmless, protect and defend Company from any claim or suit occurring from the use of such elements.
(f) USER acknowledges and agrees that Company owns all the intellectual property associated with the RM Loyalty Service. USER may not transfer the RM Loyalty Service to another hosting provider. USER expressly understands and agrees that the names of customers are the exclusive property of Company and USER and its officers, directors, shareholders, partners, members and employees, represent and warrant that he, she and it will not;
(i) use, such customer names in any manner or for any purpose other than as expressly provided for herein or;
(ii) solicit or attempt to solicit such customer names for the purchase of any goods and services other than expressly provided for herein for the term of this Agreement and for a period of the two (2) years thereafter.
(g) USER shall not, at any time during the term of this Agreement nor after termination of same, divulge or use for USER’S own purposes, or for the purposes of any third party, any trade secrets, and confidential or business information relating to the business affairs of Company. The parties acknowledge that Company has disclosed to USER in confidence certain information relating to the business of Company. USER acknowledges and agrees that disclosure of all such information by Company to USER has been in confidence and is of a confidential nature. USER acknowledges and agrees that such information shall not be used by USER, except in pursuit of USER’s responsibilities and rights under this Agreement, during the duration of this Agreement and if applicable, after termination of the same.
3. Schedule of Compensation.
(a) The RM Loyalty Service shall be completely free to customers of USER who use it to earn and redeem points.
(b) USER agrees to pay a Monthly Fee for the RM Loyalty Service as well as any associated Messaging Fees as detailed on the RM Loyalty Enrollment Form.
(c) The Monthly Fee for the RM Loyalty Service is exclusive of all city state and federal taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes.
USER understands that Company will provide the same service for other restaurants on a non-exclusive basis.
5. USER Relationship
(a) It is specifically agreed that the relationship of the parties hereto shall be that of a principal and INDEPENDENT CONTRACTOR and not that of an employer and employee or principal and agent. The parties agree that Company shall not have a right of control over USER. However, Company and USER mutually agree as to the objectives and the scope of services required, all as herein set forth. Subject to the terms of this Agreement, USER shall have full power and authority to select the means, manner, and method of performing the work and accomplishing those objectives without detailed direction or control by Company. The parties hereto recognize and agree that no joint venture or partnership arrangement or agreement is intended or created hereby. No agent, employee or servant of USER shall be or shall be deemed to be the employee, agent or servant of Company, nor shall any agent, employee or servant of Company be or be deemed to be the employee, agent or servant of USER.
(b) USER shall be solely and entirely responsible for its acts and for the acts of its agents, employees, servants and subcontractors during the performance of this Agreement, unless otherwise stated under the terms of this Agreement. USER shall be solely responsible with respect to the compensation payable to its agents, employees, servants and subcontractors and Company shall have no responsibility with respect to the same. Company shall be solely and entirely responsible for its acts and for the acts of its agents, employees, servants and subcontractors during the performance of this Agreement, unless otherwise stated under the terms of this Agreement.
(c) Neither USER nor Company shall act on behalf of or represent itself directly or by implication as having authority to act on behalf of the other party except as specifically set forth in this Agreement. Neither party shall have the authority to create any obligation for or on behalf of or in the name of the other party, except as specifically set forth herein.
6. Term and Termination
(a) The term of this Agreement shall be for a period of one (1) year from when both parties hereto sign this Agreement and shall be automatically renewed for one (1) year terms unless earlier terminated pursuant to this Agreement. Either party may terminate this Agreement upon ninety (90) days written notice to the other party at the billing address of record.
(b) Company shall have the exclusive right to immediately terminate this Agreement without notice upon the happening of an “Event of Default” as defined in this paragraph. An Event of Default shall be defined as follows:
(i) The failure of USER to comply with any term or provision of this Agreement.
(ii) The filing of a voluntary petition in bankruptcy by USER or if USER shall be adjudicated bankrupt or insolvent, or upon the execution by USER of an assignment for the benefit of creditors, or upon appointment of a receiver for USER.
(iii) USER’s violation or alleged violation of any federal, state, county or city law, ordinance or code.
(iv) Failure to Perform: USER fails to meet their responsibilities as determined by Company
(v) Default of Payment: USER fails to tender payment by the third day after payment is due per the terms detailed in Paragraph 3 of this Agreement.
(vi) Business Damages: if USER willfully or negligently harms, damages or injures the Confidential Information, property, business or goodwill of Company.
(c) In the event of termination of this Agreement, USER shall surrender all of its rights granted hereunder and shall thereafter refrain from exercising any of the rights and privileges granted hereunder. All advertising materials, promotional materials, signs, contract forms, and all other documents which Company has made available to USER for the purpose of promoting Company’s RM Loyalty Service shall be returned to Company immediately. The termination of this Agreement shall not affect Company’s right to receive compensation earned and yet unpaid in accordance with this Agreement.
(a) In the event of breach of this Agreement or default of the obligations hereunder by either party, each party shall be entitled to all rights and remedies as may be available under law or in equity as applicable hereto. Specifically, by way of example and not limitation, either party upon breach hereof, shall be liable to the other party for any and all damages provable as a consequence thereof; however, notwithstanding the foregoing, the parties hereto agree that, to the extent that damages are an insufficient remedy in respect to such breach, including but not limited to a breach of the provisions hereof concerning agreements not to circumvent, divulging of confidential or business information, or otherwise engaging in activity which is not able to be remedied by the payment of money, then, the parties acknowledge that remedies of specific performance, injunction or other equitable relief may be appropriately sought.
(b) No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action arose, or in the case of non-payment, more than two years from the date of the last payment.
Any notice, request, demand or other communication required or permitted hereunder shall be given by certified mail, return receipt requested or via express mail delivered to each party at the address shown in Addendum A to this Agreement.
This Agreement shall be binding upon the parties and their respective successors and assigns; provided, however, USER understands and agrees that:
(i) Company shall have the power to assign any right or interest in this Agreement without the prior written consent of USER
(ii) USER shall not have the power to assign any right or interest in this Agreement without prior written consent of Company.
10. Applicable Law
This Agreement shall be governed by and construed according to the laws of the State of Maryland. Any action to enforce this Agreement shall be brought in the State of Maryland which shall be deemed the proper venue for all purposes.
11. Entire Agreement
(a) This Agreement together with Addendum A constitutes the entire agreement between the parties with respect to the subject matter herein contained. Any agreements, promises, negotiations, representations or other terms not set forth or referred to in this Agreement are of no force and effect.
(b) This Agreement may not be modified or amended except in writing signed by both parties. The parties agree to fully cooperate in negotiating any changes or modifications to this Agreement as may be necessary to fully comply with any Statute or Code described above as may be applicable to matters herein contemplated.
(a) If any part of this Agreement shall be deemed invalid under applicable law, the remaining parts of this Agreement shall be in full force and effect as though any unenforceable part or parts were not written into this Agreement. In construing this Agreement, the singular tense shall be deemed to include the plural and the male or neuter gender shall mean and comprehend all genders, whenever such meaning or interpretation is necessary and appropriate. Headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
(b) Subject to Paragraph 9 hereof, this Agreement shall be binding upon the parties hereto, their legal representatives, successors and assigns will execute any and all papers and documents that may be required in accordance with this Agreement. In the event either party commences an action against the other to enforce any provision of this Agreement or because of a breach by the other party of any of the terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs, without regard to whether such action is prosecuted to judgment. This Agreement may be executed in multiple counterparts, each of which will constitute an original and all of which will constitute an original and all of which will constitute one (1) Agreement.
(c) Company reserves the right to cite USER’s establishment in any and all commercial venues.
13. Limitation of Liability
(a) Company shall not be liable to user for any interception of online communications, software or hardware problems (including, without limitation, service interuption, viruses, loss of data, or compatibility conflicts), unauthorized use of credit card, or other consequence beyond the reasonable control of Company.
(b) By subscribing to Company’s RM Loyalty Service USER is providing Company with remote access to and control of your POS system, including all files that reside on said computer system. Remote access is provided at the sole risk of the USER.
(c) ANY LIABILITY OF COMPANY (INCLUDING ITS EMPLOYEES, AFFILIATES, OR AGENTS) TO USER FOR DAMAGES, INJURIES, LOSSES AND CAUSES OF ACTION, OF ANY KIND OR NATURE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL BE STRICTLY LIMITED TO THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO USER IN USE OF THE ONLINE FOOD ORDER SERVICE IMMEDIATELY PRIOR TO THE CLAIMED INJURY, LOSS OR DAMAGE.
14. Disclaimer of Warranty
Company’s RM Loyalty Service is provided on an "AS IS" or "AS AVAILABLE" basis and Company does not provide any assurances of the availability or usability by customer or USER of their RM Loyalty Service. Company makes no representations or warranties, whatsoever, as to the substance, or the accuracy or sufficiency thereof, of any information listed on the web site. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO THE PRODUCTS SOLD, THE ONLINE FOOD DELIVERY SERVICES, OR DELIVERIES.
15. No Presumption of Unilateral Drafting
Should any of the provisions of this agreement require judicial interpretation, it is agreed that the Court interpreting or construing the same shall not apply a presumption that the terms of such provision be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who himself or through his agent prepared the same, it being agreed that the agents of all parties have participated in the preparation and review of the provisions of this agreement.