DINE BRANDS AND NATIONAL RESTAURANT ASSOCIATION SOLUTIONS, LLC USER TERMS
Dine Brands Global, Inc. and its affiliates (collectively, “Dine Brands”) and National Restaurant Association Solutions, LLC (“Vendor”) entered to into a Master Services Agreement, effective as of August 1, 2019 (the “MSA”).
Pursuant to the MSA, Dine Brands and each Franchisor have agreed that Vendor may provide its Services and Products to Franchisees of Applebee’s and IHOP restaurants and employees of such Franchisees (collectively, “Users” or “you”) who agree to these User Terms.
BY USING THE SERVICES OR PRODUCTS, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE USER TERMS, VENDOR’S PRIVACY POLICY AND VENDOR’S TERMS OF SALE POLICY AND TERMS OF USE POLICY. IF YOU DO NOT AGREE TO THESE USER TERMS, THE PRIVACY POLICY, THE TERMS OF SALE POLICY OR THE TERMS OF USE POLICY, YOU MUST NOT PURCHASE, ACCESS OR USE THE SERVICES OR PRODUCTS.
Please read these User Terms carefully before you start to use the Services or Products. Unless otherwise expressly defined in these User Terms, all capitalized terms herein will have the meanings ascribed to them in the MSA.
1. Use. You agree to utilize the Products and Services, and conduct any ServSafe Exams only in accordance with these User Terms and any terms, conditions, instructions, guidelines, and handbooks which may be provided or produced by NRAS from time to time, including but not limited to those instructions and guidelines published on www.servsafe.com. You agree that your use of the Products and Services will comply with all laws, and that you will not modify, copy, reproduce or create derivative works of any Product or Service, including the obscuring any copyright or proprietary notices included in the Products or Services.
2. Intellectual Property Rights. NRAS shall retain any and all intellectual property, processes, or other proprietary processes of NRAS, including the Products and Services. The Services to be performed shall not be considered works for hire or work product and shall remain the property of NRAS. User shall only be provided with a non-exclusive, non-transferable, limited and retractable license to use any such Products and Services.
3. Pricing; Payment. You must prepay NRAS for the Products and Services ordered (including any applicable taxes). NRAS shall have no obligation to deliver any Product or Service until full payment by User has been received. By providing a credit card for payment, you represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you, including all applicable taxes.
4. Data Security. You agree to implement appropriate security safeguards designed to protect Confidential Information in accordance with industry standards for digital and print based information. Further, you warrant that any personal information, including names, addresses, phone numbers, social security numbers, driver's license numbers or financial account numbers (“Personal Information”), is collected and stored in accordance with all applicable federal and state laws and regulations.
5. Warranty; Liability. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND NRAS MAKES NO REPRESENTATION OR WARRANTY TO YOU OR ANY OTHER PERSON WITH RESPECT TO SUCH PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OR WARRANTY OF SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
NRAS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS, EVEN IF NRAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE. ADDITIONALLY, NRAS’S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO NRAS IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY.
You acknowledge and agree that NRAEF’s liability to you is limited to the fullest extent permitted by applicable law.
User and Vendor acknowledge and agree that (a) Dine Brands shall not be responsible for, nor a guarantor of, any of User’s obligations to Vendor; and (b) Dine Brands shall not be responsible for, nor a guarantor of, any of Vendor’s obligations to User.
6. Indemnification by User. You agree to defend, indemnify and hold harmless NRAS, its officers, directors, employees, agents and affiliated organizations from and against any and all third-party claims, demands, suits, actions, losses, damages and expenses, including but not limited to reasonable attorneys’ fees (collectively, “Claim”) to the extent they arise from or are in connection with your breach (or alleged breach) of any obligation, fraud, negligence or willful misconduct. This Section shall survive the expiration or termination of the MSA.
7. Indemnification by Vendor. Vendor will indemnify, defend, and hold User harmless from and against all Claims brought by third parties arising from or relating to: (i) any negligent or willful act or omission of Vendor, its personnel, or subcontractors under or relating to these User Terms, or (ii) a claim that the Services, or any resulting use or sale of any Services or products, infringes or misappropriates a third-party intellectual property right.
8. Governing Law; Venue. These User Terms shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without regard to its conflict of laws provisions. You consent and waive any objection to the jurisdiction of and venue in any state or federal court located in State of Delaware.
9. Dispute Resolution.
a. Arbitration. THE PARTIES AGREE TO BINDING ARBITRATION FOR ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING UNDER OR OTHERWISE RELATED TO THESE USER TERMS. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO THE OPTIONAL EXPEDITED ARBITRATION PROCEDURES OF ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. ARBITRATION WILL BE IN THE CHICAGO, ILLINOIS, METROPOLITAN AREA AND SUBJECT TO THE GOVERNING LAW PROVISION. JUDGMENT UPON ANY AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
b. Good Faith Negotiation. The Parties will negotiate in good faith to resolve any dispute under these User Terms. All such negotiations are confidential and will be treated as compromise and settlement negotiations for purposes of evidentiary rules.
10. Confidentiality. The parties hereto agree not to disclose these User Terms to any third party unless required by law, with the exception of employees, representatives and agents on a need-to-know basis. It is further agreed that both parties shall keep confidential any and all information they receive or learn regard the business or operations of the other party. This includes but is not limited to: trade secrets, methods of reaching out to customers or operation of core or ancillary business models.
11. Relationship of the Parties.
a. Vendor is an independent contractor of User and its affiliates for all purposes under these User Terms and not an agent, representative or employee of User or its affiliates, and vice versa. Notwithstanding the foregoing and anything else in these User Terms to the contrary, Vendor explicitly disclaims control over any and all independent contractors it engages to perform any obligations hereunder, and the parties hereby acknowledge and agree that Vendor does not control any such independent contractors or provide tools, materials or supplies to such persons.
b. The parties expressly acknowledge that these User Terms does not create an exclusive relationship between the parties. User is free to engage others to perform services of the same or similar nature to those provided by Vendor, and Vendor shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Vendor.
12. Miscellaneous.
a. MSA. User understands and acknowledges that the MSA may be amended by Dine Brands and Vendor without notice to User. These User Terms are not intended by the parties to, and will not, have any effect on the terms of the MSA as between Dine Brands and Vendor.
b. Force Majeure. Neither party shall be responsible to the other party for delays in the performance of its obligations under these User Terms arising from causes of force majeure, which shall include acts of God, fire, earthquakes, war, civil unrest, accident, power fluctuations or outages, telecommunication fluctuations, outages or delays, utility failures, mechanical defects or other events beyond the control of a party; provided that such party takes commercially reasonable efforts to mitigate the impacts of such force majeure and perform notwithstanding and such party resumes performance of its obligations when the force majeure event has been remedied.
c. Notices. Notices will be deemed delivered when received in writing by the party being notified. Any notice or other document or communication required or permitted under these User Terms will be made in writing and delivered by: a) certified US mail, return receipt requested, postage prepaid; b) hand delivery; or c) reputable overnight carrier service.
d. Waiver. No purported waiver of a breach or default will be valid unless specifically stated in writing by the waiving party. No such waiver waives any subsequent breach or default of the same or any other term in these User Terms.
e. Severability. If any provision of these User Terms is unenforceable, the parties (or, if they cannot agree, a court) will revise that provision so that it can be enforced. Even if no revision is possible, the remaining terms of these User Terms will continue in effect.