This ServSuccess+ Business Plan Employee Subscription Services Agreement (the “Agreement”) is a legally binding agreement by and between NATIONAL RESTAURANT ASSOCIATION SOLUTIONS, LLC, an Illinois limited liability company with offices located at 230 S. Wacker Drive, Suite 3600, Chicago, IL 60604 (“Solutions”), and the Subscriber using the Services (“Subscriber”, “you” or “your”). Solutions and Subscriber are each a “Party” and collectively the “Parties” under this Agreement.
Solutions and Subscriber hereby agree as follows:
1. Services Provided to Subscriber.
1.1 Services. This Agreement covers Subscriber’s use of those online subscription services from third parties and/or Solutions (collectively, the “Services”) that may be offered to subscribers under the ServSuccess+ Business Plan of the ServSuccess+ Program (“Program”) from time to time. Subscriber acknowledges and agrees that the Services offered under the Program may change from time to time. In the event that one or more of the Services are discontinued, curtailed, or reduced, Solutions shall provide notice on the ServSuccess+ Program website (“Program Site”) and Subscriber shall have the opportunity to terminate or discontinue Subscriber’s subscription. Notice of any changes in the Services provided shall be provided by Solutions.
1.2 Acknowledgement of Third-Party Service Providers. Subscriber acknowledges and agrees that many of the Services will or may be provided by third-parties (“Third Party Services”) who are not affiliated with, or under the control of, Solutions (other than affiliation by agreeing to provide the Third Party Services). Subscriber agrees that Subscriber will use the Third Party Services as intended by the third party provider, and Subscriber shall be subject to the rules, policies, and procedures established by the third party for the Third Party Services.
1.3 THIRD PARTY SERVICES HOLD HARMLESS. Subscriber agrees that it shall hold Solutions, its affiliates and their respective officers, employees, agents and representatives (collectively, “Affiliates”) harmless from any cause of action, claim, loss or damages which the Subscriber may have in connection with, or arising out of, the Third Party Services. Solutions shall have no liability to Subscriber, and Subscriber shall look only to the provider of the Third Party Services for, any claims, damages, or causes of action related to the Subscriber’s use of the Third Party Services
1.4 LIMITATION OF LIABILITY GENERALLY. Subscriber hereby agrees that in all events, Solutions’ liability to Subscriber (and/or any third-party claiming through Subscriber) in connection with this Agreement or the Services shall be limited to the amount of the Subscription Fees actually paid for or on behalf of Subscriber to Solutions under this Agreement. NEITHER SOLUTIONS NOR ANY OF ITS AFFILIATES WILL BE LIABLE UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (iii) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE SUBSCRIBER FEES PAID FOR OR ON BEHALF OF SUBSCRIBER UNDER THIS AGREEMENT.
1.5 Permitted Users. Unless otherwise provided in the description of one of the Services, the Services shall be used only by the Subscriber. In certain circumstances, one or more of the Services may provide benefits to the immediate family or other authorized affiliates of the Subscriber. Any unauthorized use of the Services by Subscriber or by third-parties through the Subscriber’s subscription shall be grounds for termination of the Subscriber’s subscription and may lead to damages to Solutions.
1.6 Additional Terms Third Party Services. Subscriber expressly acknowledges and agrees that its subscription does not include the ability to subscribe to any Third Party Services provided by Teladoc Health, Inc. or any other later offered subscription rights for pre-paid healthcare services or similar regulated employee benefits and Subscriber is not permitted to access or receive any such Services through the Program.
2.2 Responsibility for Content; Restrictions on Use. Subscribers are responsible for any and all information, data and content posted or uploaded through their user accounts with Solutions or the providers of Third Party Services. Subscriber shall not, and shall ensure that its family or affiliates do not, directly or indirectly (i) make the Services available to anyone other than those expressly authorized to use the Services; (ii) sell, resell, assign, transfer, license, sublicense, distribute, outsource, rent or lease the Services; (iii) copy, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Services or any software, documentation or data related to or provided with the Services; (iv) modify or create derivative works based on the Services or remove any trademarks or trademark and/or copyright notices from the Services; or (v) use or access the Services to build or support, and/or assist a third party in developing products or services competitive to the Services.
2.3 Suspension of Services/Termination. Solutions will immediately terminate or suspend Subscriber’s account and access to the Services if (i) the payment for the subscription is not received or Purchaser terminates the subscription; (ii) Subscriber violates the terms of this Agreement or the terms of a third party provider of the Third Party Services; or (iii) Purchaser’s account or subscription purchase agreement with Solutions (as described below) is terminated or suspended. Any suspension or termination by Solutions of the Services or Program will not relieve Subscriber of its obligations otherwise incurred before the date of termination.
3. Ownership: Services; Subscriber Data; Statistical Information.
3.1 Ownership of the Services. Subscriber agrees that the Services are offered online for use on a subscription basis. Solutions and/or its Affiliates and/or providers of Third Party Services , as applicable, reserve all rights, title and interest in and to the any software or documents related to or provided as part of the Services and all copyright, trademark and other intellectual property rights and derivatives, modifications or improvements thereto. From time to time, Subscriber or its affiliates may be asked to submit to Solutions comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Services (“Feedback”). Subscriber agrees that Solutions has all rights to use and incorporate Feedback into the Services without restriction or payment to Subscriber. No rights are granted to Subscriber except as otherwise provided herein.
3.3 Statistical Information. Solutions may monitor Subscriber’s use of the Services and compile Subscriber data to obtain statistical information related to the Services and may make such information publicly available. Solutions retains all rights, title and interest in and to such statistical and performance information.
4. Subscription Fees; Taxes and Currency; Payment.
4.1 Subscription Fees. The applicable subscription fee or fees (“Subscription Fees”) for the subscription level that the Subscriber is receiving will be paid by the Subscriber’s employer or other third party (“Purchaser”) on the Subscriber’s behalf pursuant to a subscription purchase agreement between Solutions and the Purchaser. Subscriber must still enter into this Agreement and shall still otherwise be responsible for complying with all terms and conditions of the Program. If the Purchaser should cease to pay for Subscriber’s Subscription Fees or terminate the subscription, the subscription and the Services shall terminate. All Subscription Fees are noncancelable and nonrefundable, unless otherwise specifically specified in writing by Solutions. Solutions reserves the right to change the Subscription Fees upon thirty (30) days’ notice subject to the same terms and conditions set forth in this Agreement, which may be updated by Solutions from time to time. Updates to the terms of this Agreement can be found on the Program Site.
4.2 Taxes and Currency. All fees are exclusive of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services. Subscriber is not responsible for any taxes based on Solutions’ net income or property. Except as otherwise specified in writing by Solutions, all fees due hereunder will be paid in U.S. Dollars.
4.3 Payment. The Subscription Fees shall be paid as provided on the Program Site and/or as set forth in the subscription purchase agreement between Solutions and the Purchaser. Failure to pay amounts as due shall result in the termination of the subscription and the Services. Solutions shall have no obligation to deliver the subscription or the Services until payment has been received.
5. Agreement Term and Termination.
5.1 Subscription and Agreement Term. Unless otherwise provided and agreed on the Program Site, the subscription term (“Subscription Term”) shall be on a month-to-month basis, and conditioned upon the timely receipt of payment of the applicable Subscription Fees for the level of Services subscribed for. The Agreement will commence on the date Subscriber accepts this Agreement and payment is received (the “Effective Date”) and will remain in effect until the Subscription Term has expired or has been terminated as provided herein (the “Agreement Term”).
5.2 Termination. Subscribers may unsubscribe for future months by providing advance written notice to Solutions on the Program Site.
5.3 Survival. The following Sections of the Agreement will survive termination of the Agreement: Section 1.3 (Third Party Services Hold Harmless), Section 1.4 (Limitation of Liability Generally), Section 1.6 (Additional Terms Third Party Services), Section 2. 2 (Responsibility for Content; Restrictions on Use), Section 3 (Ownership: Services; Subscriber Data; Statistical Information), Section 4 (Subscription Fees; Taxes and Currency; Payment), Section 6.4 (Warranties Disclaimer), Section 7 (Indemnification for Wrongful Use), Section 9 (Miscellaneous).
6. Warranties; Notification and Remedies; Warranties Disclaimer; Product Changes.
6.1 General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement. Subscriber represents and warrants that it has attained the age of majority or legal age (generally 18 or older) and is legally competent to execute this Agreement and to take all actions required pursuant hereto.
6.2 Services. Certain warranties are provided to Purchaser under the Purchase Agreement regarding the Services provided by Solutions (and not by third parties). Such warranties do not apply to Third Party Services. Subscribers shall look to any third party provider of Services for the third party provider’s warranty, if any.
6.3 Notification and Remedies. Subscriber will notify Solutions if the Services provided by Solutions (and not by third parties) under normal and intended use (i) do not perform materially in accordance with the applicable documentation provided by Solutions, if any; or (ii) are not provided in a manner consistent with generally accepted industry standards within 30 days of the performance of the relevant Services, and Subscriber’s exclusive remedy will be the re-performance of the deficient Services. If Solutions cannot re-perform such deficient Services, Subscriber will notify Solutions and Solutions shall be entitled to terminate the deficient Services as its sole liability.
6.4 WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SERVICES PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, AND SOLUTIONS, ITS AFFILIATES AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SOLUTIONS DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICES OR THE RESULTS SUBSCRIBER MAY OBTAIN BY USING THE SERVICES. SOLUTIONS DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES OR THAT SOLUTIONS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. SOLUTIONS DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
6.5 Services and Products Changes. Solutions reserves the right to change or discontinue individual Services or features within the Services upon electronic notice on the Program Site or pursuant to notice through the subscription portal or other electronic means. To the extent any such changes result in a material reduction of overall functionality without a comparable replacement, the Subscriber shall be entitled to discontinue the subscription as provided in Section 5.2 hereof.
7. Indemnification for Wrongful Use.
Subscriber will indemnify, defend and hold harmless Solutions and Solutions’ Affiliates against any claim brought against Solutions by a third party alleging Subscriber’s wrongful use of the Services, other than as authorized in this Agreement, violates applicable law or regulations, or infringes the claimant’s intellectual property rights, and will pay Solutions for finally-awarded damages and costs and Subscriber-approved settlements of the claim.
8. Data Security.
9.1 Notices. Solutions may give general notices for Services applicable to all subscribers by means of a notice on the Program Site or other electronic means. Subscriber consents to receiving communications regarding the Program, the subscription and the Services. Specific notices applicable to affiliates of the Services, technical support, system security and other account notices will be given by electronic mail to Subscriber’s e-mail address on record. All legal or dispute-related notices will be sent by first-class mail or express delivery, if to Solutions: Legal Department, 2055 L Street, NW, Suite 700, Washington, DC 20036 and if to Subscriber at the address provided by Subscriber or such other addresses as either Party may designate in writing from time to time.
9.2 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of God, war, terrorism, civil unrest, cyberattack, an electrical or telecommunications outage, epidemic, government restrictions (including the denial or cancellation of any license), or other event beyond the reasonable control of such Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event and will notify the other Party in writing within twenty (20) days of such force majeure event.
9.3 Governing Law. The Parties will be governed by laws of the State of Illinois, excluding its conflicts of law provisions, and agree to the exclusive jurisdiction of and venue in the state and federal courts located in Cook County, IL. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued.
9.4 Independent Contractors; Assignment. The relationship between the Parties is that of independent contractors. No joint venture, partnership, employment, or agency relationship exists between Solutions and Subscriber as a result of this Agreement or Subscriber’s use of the Services. This Agreement is personal to Subscriber and may not be assigned or transferred by Subscriber for any reason whatsoever without Solutions’ prior written consent.
9.5 Waiver. No waiver of any provision nor consent to any exception to the terms of this Agreement shall be effective unless in writing and signed by the Party to be bound and then only to the specific purpose, extent and instance so provided. A Party’s waiver of, or failure to exercise, any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.
9.6 Headings; Entire Agreement. The headings in this Agreement are for reference only. This Agreement represents the Parties’ entire understanding relating to the Services and supersedes any prior agreements or understandings regarding the Services. In the event of a conflict between this Agreement and the Program Site, this Agreement shall govern.
Last Updated 4.29.22