1. GENERAL. These Tonite Partner Terms and Conditions ("Terms") are hereby accepted and agreed to by the company identified within the Tonite sign-up process (“Partner” or “You"), and constitute a legally binding agreement by and between Partner and Mutual LLC (“Mutual,” “Company,” “we,” or “us”). These Terms may be subject to and/or incorporate the Tonite Order Form (each, an “Order Form,” and all such Order Forms together with these Terms collectively, the “Agreement”). Partner’s access to and use of the Tonite Program (as defined below) is subject to the Agreement and may be modified or updated by Mutual from time to time, effective upon posting an updated version of these Terms on the Mutual website. Partner is responsible for updating contact information and regularly reviewing the Terms for updates and information from Mutual. Continued use of the Tonite Services after any such modifications or updates shall constitute Partner’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form.
2.1 Items and Services.
Mutual and its affiliates make available certain proprietary technology services that facilitate the marketing and sale of orders or vouchers (“Vouchers”) for Items (as defined below) from Partner to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“Tonite Program”).“Items” are defined as goods, services or experiences (or vouchers therefor) that Partner offers and sells to customers or end users (“Customers”) for personal use and/or consumption. Items includes, without limitation, Restaurant Items (as defined below).“Restaurant Items” are defined as foods and beverages that are typically sold by restaurants in a form intended for immediate consumption on-premises, for take-out, and/or delivery. Mutual shall retain sole discretion whether an Item constitutes a non-Restaurant Item.
2.2 Partner Technology.
In connection with the Tonite Program, Mutual and its affiliates may also make available to Partner a website, mobile application or other technology interface for Partner to access and use the Tonite Program (collectively, the “Tonite Services”), which may include Mutual’s and its affiliates’ proprietary technology platform through which insights and analytics regarding Partner’s performance and history using the Tonite Services are provided, and through which Partner may, among other things, receive, accept and fulfill requests for Vouchers/Items from Customers.
2.3 Mutual App.
Mutual and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Vouchers from Partner (“Mutual App”). Mutual is authorized to promote and sell Vouchers on Partner’s behalf, subject to the terms of this Agreement. Each such Voucher will evidence the applicable Item and will be sent to the Customer electronically upon receipt by Mutual of payment therefor. The Customer may then redeem the Voucher for the applicable Item with Partner by presenting such Voucher prior to its expiration date in paper or electronic form at the applicable Location (as defined below). For clarity, Partner is the issuer of Vouchers and the seller of the Items.
3. MUTUAL’S OBLIGATIONS.
3.1 Tonite Services.
Subject to the terms and conditions of this Agreement, Mutual and its affiliates will make available the applicable Tonite Services to Partner, solely for use by Partner at locations that are owned and operated by Partner (each, a “Location”). Partner shall provide Mutual current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Tonite Services to Partner, Mutual and its affiliates, on behalf of Partner, may respond to complaints by Partner’s customers (“Customers”) about Items sold by Partner via the Mutual App. For the avoidance of doubt, as between Partner and Mutual, Mutual will retain sole and absolute control over the Mutual App (and all elements of the user experience and user interface relating to the Mutual App), including with respect to: (i) the personalization of the Mutual App for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; and (iv) adding, removing or otherwise modifying any feature or functionality made available through the Mutual App to optimize reliability or efficiency on the Mutual App.
3.2 Technology, Not Delivery, Services.
Partner agrees neither Mutual nor its affiliates provide any delivery services. Rather, Mutual provides technology services that enable Partner to connect with Customers who may purchase Items or Vouchers from Partner.
4. PARTNER’s OBLIGATIONS.
4.1 Availability of Items.
Partner will make Items purchased through the Mutual App redeemable during its normal business hours, honor Vouchers as if they were cash purchases of Items, and ensure the description of each Item and Location (as defined below) is accurate. The expiration date for Vouchers shall be ninety (90) days from the date such Voucher is purchased by a Customer unless Partner clearly and conspicuously states a different expiration date for such Voucher in its listing. Partner will provide Mutual with prior notice of any change in the description of any Item (including its Retail Price) or Location. Partner will train its employees, contractors and other personnel regarding the Tonite Program and how to accept Vouchers presented for redemption. Partner will provide, prepare, handle, store, label and package, as applicable, all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing consumer health and safety and/or time or temperature controls required for food safety (“Consumer Safety Standards”). Partner will determine any quality, quantity, duration, portion, size, ingredient or other criteria that apply to Items (“Criteria”), and Partner is responsible for ensuring that all Items meet the applicable Criteria. If Partner fails to prepare or supply Items in accordance with Consumer Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Mutual may, in its sole discretion, remove such Item from the Mutual App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Mutual App. Partner represents and warrants that all information for Items, including without limitation, descriptions of activities, nutrition information, calorie count or allergen information, that is made available through the Mutual App is, and at all times will remain, accurate. In addition, Partner will ensure that the contents of its listings, including each Item’s Criteria and any notifications about ingredients, nutritional information, allergen information, etc., are accurate and comply with all applicable laws and regulations.
4.2 Item Responsibility.
Partner acknowledges and agrees that Mutual does not take title to or responsibility for any Item at any time. Notwithstanding, Partner shall be responsible for any reimbursement costs related to Customer refunds for substandard Items or other related issues within Partner’s control (including any costs associated with returns of any such substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared or delivered in accordance with Partner’s internal standards and specifications. Mutual may, in its sole discretion, deduct reimbursement costs from the payment Mutual remits to Partner in accordance with this Section 4. To the extent required by applicable law, Items are sold to Customers under Partner’s retail and/or food license privileges. Partner agrees to direct Customers and to instruct Partner’s employees, contractors and other personnel to direct Customers to Mutual for any requests for refunds; provided, that once the Item Revenue for any Item/Voucher has been remitted by Mutual to Partner, Mutual will no longer issue refunds for such Item/Voucher. Partner agrees that Customers may cancel any Voucher prior to redemption for a full refund via the Mutual App, and Mutual may, at its option, issue refunds to Customers in the form of credits to be used for other purchases through the Mutual App.
4.3 Use Restrictions.
In connection with the access to and use of the Tonite Services and Mutual App, Partner will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Tonite Services and Mutual App (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tonite Services and Mutual App (except as otherwise authorized by Mutual); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Partner will not (and will not allow any third party to) use the Tonite Services and Mutual App or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Mutual App to directly or indirectly compete with Mutual or its affiliates or the Tonite Services.
4.4 Item Restrictions.
The following restricted Items may not be featured or sold via the Mutual App: people, illegal items, dangerous items (like weapons, explosives, flammables, etc.), alcohol, stolen goods, endangered species or items containing endangered species or any items that Partner does not have permission to offer. Mutual may remove from—or otherwise limit your ability to post to—a Partner’s Tonite account any Items Mutual deems prohibited or inappropriate.
Unless otherwise selected by Partner, Partner agrees to allow Customers to provide gratuities through the Mutual App. Mutual shall remit to Partner the full value of any gratuities provided by Customers. It is the sole responsibility of the Partner to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.
5. FEES AND TAXES.
5.1 Fees; Calculation.
For each Item (or Voucher therefor) sold by Partner via the Mutual App, Partner will pay Mutual as follows: the Retail Price (as defined below) of all Items that Partner sells via the Mutual App and that are redeemed by the Customer (excluding any Sales Tax collected on Partner’s behalf) multiplied by the applicable fee percentage set forth below or in the Order Form pursuant to which each such Item is sold (“Fee”). The Fee does not include any applicable taxes. Mutual will remit to Partner the total Retail Price collected for all Vouchers for Items that Partner sells via the Mutual App (including any Sales Taxes collected on its behalf) following redemption of such Vouchers less: (a) the applicable retained Fee; (b) any refunds given to Customers; and (c) third party transaction costs, including without limitation, credit card processing fees (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Partner (i.e., for Vouchers that have been redeemed) will be remitted within fourteen (14) business days of the redemption of the Item, or if the payment method is via check, by the 20th of the month following such redemption.Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be equal to percent set forth in the applicable Order Form for each Item/Voucher sold via the Mutual App and redeemed by a Customer. For clarity, in the event any Voucher or Item is not redeemed by a Customer within the time period specified for such Voucher/Item at the time such Customer purchased the Voucher for such Item, or in the absence of any specified time period, 90 days from the date of purchase of such Voucher, Mutual will have no obligation to remit Item Revenue related to such Item to Partner unless the Voucher was a reservation for a specified date and time.If required by applicable law or regulation, Mutual may adjust the Fee. Such adjustment may apply only to certain Items. All Fees under this Agreement will be paid in U.S. Dollars. Mutual or its affiliates will deduct the Fee from the payment Mutual collects on Partner’s behalf, as detailed in Section 5.3 below. Mutual reserves the right to suspend Partner’s ability to make Items available for purchase by Customers through the Mutual App if Partner’s account is in arrears. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.
5.2 Retail Prices; Taxes.
Tonite Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Vouchers and Items to be made available for sale via the Mutual App. As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.Partner hereby authorizes Mutual to collect applicable Sales Taxes on Partner's behalf based on information provided by Partner through the Tonite Services. The Tonite Services’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Partner’s use of the Tonite Services, including any communications with Mutual, in no way constitutes the provision of legal or tax advice.Partner shall promptly notify Mutual if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Partner are not in accordance with (or in violation of) any law or regulation, Mutual expressly reserves the right to, upon prior notice to Partner, remove affected Items from the Mutual App and/or deactivate Partner from the Mutual App.Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require Mutual to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect that are applicable to Mutual due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), Mutual may determine, as of a date specified by Mutual (“Switchover Date(s)”), the amount of applicable Sales Tax which Mutual will collect and remit to the taxing authority based on Item descriptions and Additional Information provided by Partner. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) Mutual will continue to collect Sales Taxes on behalf of, and remit such amounts to, Partner until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Taxes will be collected by Mutual and remitted to the applicable tax authority on Mutual’s own account, and not on behalf of Partner.
Notwithstanding anything to the contrary in this Section 5, Partner may not make any Item available to Customers through the Mutual App at a price that is higher than the price that Partner charges in-store for similar Items. Partner agrees that you will not make an Item available under this Agreement at a price higher than the amount Partner is charging for similar Items through any comparable platform for food delivery services.
5.4 Appointment of Limited Payment Collection Agent.
5.5 Additional Information.
Mutual may, from time to time, require Partner to provide certain additional information (“Additional Information”) pertaining to particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), identity of preparer, whether the item is “ready-to-eat”, or intended use. Partner is solely responsible for providing requested Additional Information to Mutual in a timely manner. If Partner fails to timely provide Additional Information in response to notification and request by Mutual, Mutual expressly reserves the right to temporarily remove affected Items from the Mutual App until such Additional Information is received.
7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.
Subject to the terms of this Agreement, and unless Partner opts out pursuant to an applicable Order Form, each party hereby grants to the other party (and, in the case of Mutual, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, solely in connection with the activities related to this Agreement or any other activities relating to the Tonite Program. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Partner’s Marks by Mutual or its affiliates in connection with making Items available through the Mutual App in the ordinary course of business, including without limitation, displaying Partner’s Marks and profile photo on the confirmation screen for Customers in the Mutual App, will not require any such prior, express, written consent. Partner further agrees that any use or display of Mutual’s Marks will conform to any written guidelines provided by Mutual or otherwise made available to Partner. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Partner represents and warrants that Partner’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Partner agrees that Mutual or its affiliates may remove Partner’s Marks from the Mutual App if Mutual or its affiliates receive notice or otherwise reasonably believe that such Partner’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
7.2 No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Mutual and Partner prior to the commencement of any such activities.
Mutual and its affiliates may showcase the availability of Partner’s Items via the Mutual App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Partner and its affiliates may showcase the availability of Partner’s Items via the Mutual App through various promotional activities, including posting marketing or promotional materials regarding Partner’s participation in the Tonite on-site at each Location and/or online (e.g., through social media channels, websites, advertisements, or blogs). Mutual (or a party designated by Mutual acting on Mutual’s behalf) may take video and still images for marketing and other efforts related to the Mutual App (“Mutual Photographs”). Partner agrees that Mutual Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Mutual or its affiliates. Additionally, Partner may provide videos, still image or other materials to Mutual or its affiliates (“Partner Marketing Materials”) for use in connection with the display of Partner’s Items on the Mutual App or the marketing and promotion of the Tonite Program and the availability of Partner’s Items via the Mutual App. Partner hereby grants Mutual and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Partner Marketing Materials in connection with Partner’s Items and other promotional activities relating to the Tonite Program. Without limiting anything in the Agreement, Partner represents and warrants that the Partner Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Partner Marketing Materials contain any third party materials, Partner is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Mutual to be able to use the Partner Marketing Materials in accordance with this Section. Partner agrees that Mutual or its affiliates may remove Partner Marketing Materials from the Mutual App if Mutual or its affiliates receive notice or otherwise reasonably believe that such Partner Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
7.4 Boosted Experience; Promotions.
“Boosted Experience(s)” means campaigns in which Partner pays Mutual a mutually agreed upon (in writing) amount per impression for specified Items through the Mutual App. When a Boosted Experience campaign has been accepted by Mutual, Mutual agrees to provide enhanced promotional placement for such Items in the Mutual App until the Boosted Experience achieves the purchased number of impressions or otherwise expires in accordance with its terms.“Promotion(s)” means short-term offers that are available through the Mutual App to stimulate Customer demand. When a Promotion is successfully applied to a purchase, Partner authorizes Mutual to charge Customers for the post-Promotional value of an Item (not including taxes and applicable fees). Subject to Mutual App functionality, Mutual may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.
Boosted Experience(s). Subject to any other guidelines or eligibility criteria for Boosted Experiences that Mutual may make available from time to time, Mutual hereby authorizes Partner to order Boosted Experiences. Mutual is authorized to charge Partner’s payment card or account on file with Mutual for the campaign fees for any such Boosted Experience, or deduct such campaign fees from any amounts due and payable to Partner, or if none, Mutual may send Partner an invoice for such campaign fees, which invoice will be due and payable within thirty (30) days following the date of such invoice. Once ordered by Partner, a Boosted Experience campaign may be terminated early only with Mutual’s written consent (by email sufficient). Notwithstanding anything to the contrary in this Agreement, Mutual may suspend or terminate any Boosted Experience campaign if Partner is delinquent in its payment obligations or otherwise in breach of this Agreement.
Promotion(s). From time to time, Mutual may, in its sole discretion, elect to run a Promotion funded fully by Mutual unless Partner agrees to fund any portion thereof. For each such Promotion, Mutual shall provide Partner with a description of the Promotion and any other details regarding the Promotion that Mutual deems relevant, and Mutual shall issue an adjustment to Partner’s payout (which shall also be reflected in any payout details report) to account for the amount of the Promotion that Mutual funds, such that the Partner shall receive the same amount in their Item Revenue for each Voucher purchased pursuant to a Promotion as if a Mutual-funded portion of the Promotion was not applied to such purchase.
Parties’ Obligations. The parties’ obligations for each Boosted Experience or Promotion, as applicable, will include the following, but may be expanded upon by the mutual written agreement of the parties.
Partner’s Obligations. Partner will: (A) honor and fulfill the terms of each Item purchased by Customers through the Mutual App in connection with a Boosted Experience or Promotion; (B) be responsible for the fees associated with the Promotion up to the amount Partner has agreed to fund for such Promotion, if any; and (C) upon reasonable request, supply Mutual with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Mutual may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Partner acknowledges and agrees that Partner will not be able to terminate the Agreement while a Boosted Experience or Promotion is live.
Mutual’s Obligations. Mutual will (A) honor and fulfill the terms of Promotions offered by Mutual (solely or jointly with Partner) to Customers who have successfully completed their purchase through the Mutual App during such Promotion; (B) be responsible for the fees associated with the Promotion less the amount, if any, that Partner has agreed to fund; (C) provide enhanced promotional placement in the Mutual App for Items that are part of a Boosted Experience campaign until the Boosted Experience achieves the purchased number of impressions or the campaign otherwise expires in accordance with its terms; and (D) use good faith efforts to provide Partner with reasonable information regarding Promotions and Boosted Experiences, which may include, without limitation, the number of Items sold in connection with Promotions and the number of impressions recorded for Boosted Experiences.
Fee on Promotion Purchases. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Promotion to a purchase through the Mutual App, the Fee therefor shall be calculated based on the total Retail Value of the purchase minus the Partner-funded portion of such Promotion, if any, applied to that purchase.Out of Mutual App Marketing. Unless otherwise agreed by Mutual, Partner may not market or otherwise advertise a Promotion or Boosted Experience outside the Mutual App. If Mutual authorizes Partner to market a Promotion or Boosted Experience out of the Mutual App, all such marketing materials will be subject to Mutual’s prior review and written approval, which shall not be unreasonably withheld.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK.
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Partner’s Items to Customers through the Mutual App and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; (iii) is or becomes publicly available through no fault of the Recipient; or (iv) is independently developed by Recipient without use of or reference to Discloser’s Proprietary Information. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will be made available to only Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Partner hereby authorizes Mutual and its Affiliates to disclose the terms of this Agreement to Partner’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose to the extent legally permissible and reasonably assists in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Partner agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Partner will maintain the accuracy and integrity of any Personal Data provided by Mutual and in Partner’s possession, custody or control. Partner agrees to retain Personal Data provided to Partner by Mutual solely by using the software and tools provided by Mutual. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
Partner is responsible for maintaining the integrity of information related to Partner’s access and use of the Tonite Services, including any password, login or key information. Partner represents and warrants that Partner will not share such information with any third party.
8.4 Data Re-Identification Restriction.
Without limiting any other provision of this Agreement, including any provision in this Section 8, Partner will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Partner may, but is not obligated to, submit ideas, suggestions, and/or proposals to Mutual regarding Mutual’s and its affiliate’s products and services (“Feedback”). Mutual has no obligation to Partner (including without limitation any obligation of confidentiality) with respect to such Feedback. Partner represents and warrants that Partner has all rights necessary to submit the Feedback. Partner hereby grants to Mutual a perpetual, irrevocable, worldwide, non-exclusive, fully paid-up, royalty-free, and fully sublicensable right and license to use, store, copy, distribute, publicly perform, communicate to the public, host, stream, publicly display, modify and create derivative works of, and otherwise exploit in any manner, any and all Feedback.
Partner acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Mutual App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Partner and the relevant Item(s) on the Mutual App (“Customer Feedback”). Mutual and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Mutual and its affiliates without attribution to or approval of Partner. Partner acknowledges that Mutual and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Mutual and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or Mutual’s or its affiliates’ content policies or Community Standards (as defined below).
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
10.1 Representations and Warranties.Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations (including without limitation all applicable consumer protection, data protection and privacy laws and, in the case of Partner, all applicable Consumer Safety Standards) in the performance of this Agreement and any activities (including without limitation, Partner’s provision of goods or services to Customers) hereunder; and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Partner further represents and warrants that to the extent Partner has franchisees who participate in any activities under this Agreement, Partner will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, MUTUAL MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER MUTUAL, ITS SUBSIDIARIES AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TONITE SERVICES OR MUTUAL APP, OR (II) THE ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRODUCT DESCRIPTIONS), SERVICE, PRODUCTS OR VOUCHERS PROVIDED THROUGH THE TONITE SERVICES OR MUTUAL APP. THE TONITE SERVICES, THE MUTUAL APP AND ALL CONTENT, STATEMENTS (AS DEFINED BELOW) AND OTHER INFORMATION CONTAINED THEREON, AND PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE TONITE SERVICES OR MUTUAL APP ARE MADE ACCESSIBLE OR AVAILABLE TO PARTNER ON AN “AS IS” AND “AS AVAILABLE” BASIS. MUTUAL HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE TONITE SERVICES, THE MUTUAL APP, OR THE CONTENT, STATEMENTS OR OTHER INFORMATION CONTAINED THEREON, OR THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE TONITE SERVICES OR MUTUAL APP, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
11.1 Indemnified Claims.
Partner will indemnify, defend and hold harmless Mutual, its affiliates and respective directors, officers, employees and agents (each, an “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Partner or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of Partner’s representations, warranties or covenants in this Agreement; (iii) any loss, injury or damage that is or may be sustained by any Customer arising from or in connection with Partner’s participation in the Tonite Program or a Customer’s use of Hotel facilities, services or products, including (but not limited to) loss of life, personal injury or property damage; or (iv) any claims that the Marks provided by Partner infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Partner’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Restaurant Items in non-Marketplace Facilitator Jurisdictions; (C) Partner’s failure to provide accurate and complete descriptions or Additional Information for Restaurant Items in Marketplace Facilitator Jurisdictions; or (D) Sales Tax applicable to all sales of non-Restaurant Items, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Mutual or its employees or agents.
We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
12. LIMITS OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF PARTNER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID TO MUTUAL PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, Partner will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Upon Mutual’s request, Partner will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
14. SUPPLEMENTAL TERMS.
15. TERM AND TERMINATION.
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement at any time without cause by giving fourteen (14) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period or Boosted Experience campaign, such termination will not take effect until such Promotion period or Boosted Experience campaign has ended. Notwithstanding the foregoing, the termination or expiration of this Agreement will not relieve either party of its obligations to fulfill any Voucher that has been purchased by Customers in accordance with its terms. In addition, Mutual may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Partner that, in Mutual’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Mutual should be provided to Mutual LLC, Attn: Mutual LLC, 1881 W Traverse Pkwy Ste E #541, Lehi, UT 84043. Notices to Partner should be provided to the address provided by Partner in an Order Form or otherwise pursuant to this Section.
17. DISPUTE RESOLUTION AND ARBITRATION.
17.1 Mandatory Binding Arbitration.
Except as otherwise set forth in this Section 17, the exclusive means of resolving any dispute or claim arising out of or relating to these Terms (including any alleged breach thereof) or the Service shall be binding arbitration administered by the American Arbitration Association (“AAA”)(this “Arbitration Agreement”). You may not under any circumstances commence or maintain against Mutual any class action, class arbitration, or other representative action or proceeding.
17.2 Notice Requirement and Informal Dispute Resolution.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. Any Notice for Mutual should be sent via email to Mutual at: [email protected] . After the Notice is received, you and Mutual may attempt to resolve the claim or dispute informally. If you and Mutual do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
17.3 Arbitration Rules.
Arbitration shall be conducted in accordance with the AAA’s Consumer Arbitration Rules. The AAA’s Consumer Arbitration Rules shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms. The AAA Consumer Arbitration Rules are available online at www.adr.orgor by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator who is a lawyer with at least 15 years of experience handling contractual disputes. The arbitrator shall be selected by mutual agreement of the parties, or, if the parties cannot agree, then by striking from a list of arbitrators supplied by AAA. The place of the arbitration shall be Salt Lake City, Utah. Any claims or disputes where the total amount of the award sought is less than $10,000.00 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is $10,000 USD or more, or if injunctive relief is sought, the right to a hearing may be demanded by either party. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The cost of the arbitration including the arbitrator and administrative fees shall be borne equally by each party, and each party shall be responsible for its own expenses and attorneys’ fees and costs.
17.4 Non-appearance Based Arbitration.
If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
17.5 Time Limits.
If you or Mutual pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Consumer Arbitration Rules for the pertinent claim.
17.6 Authority of Arbitrator.
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Mutual, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA’s Consumer Arbitration Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Mutual.
17.7 Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Mutual in any state or federal court in a suit to vacate or enforce an arbitration award, to avoid arbitration, or otherwise, YOU AND MUTUAL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. You agree that any such litigation shall only be heard in a state or federal court in Salt Lake City, Utah.
17.8 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Section shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
17.10 Emergency Equitable Relief.
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
17.11 Claims Not Subject to Arbitration.
Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s intellectual property rights shall not be subject to this Arbitration Agreement.
Partner will not, in its use of the Tonite Services or the Mutual App under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Mutual and Partner. Partner acknowledges and agrees that upon Mutual’s receipt of evidence of Partner’s discrimination under any of these categories, Mutual will have the right to immediately terminate this Agreement following notice to Partner.
19. ADDITIONAL TERMS.
The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. Partner agrees to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of Mutual or its affiliates. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Partner, Partner explicitly consents that any such transferee will have access to and control of all Partner accounts related to such transfer, including its accounts with Mutual, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Partner’s Location(s), the parties will need to execute a Change of Ownership form and Partner acknowledges and agrees that the Location will not be able to accept or process any Customer purchases on the Mutual App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.
If you have any questions or suggestions about our Terms and Conditions, do not hesitate to contact us at [email protected].
Last updated on: December 11, 2023