This ServSafe Benefits Business Plan Employer Subscription Purchase 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 individual, company, business, entity and/or named group purchasing one or more Subscriptions (“Purchaser”, “you” or “your”) for its employees and similarly affiliated individuals to receive those Services provided for the Program Business Plan. Solutions and Purchaser are each a “Party” and collectively the “Parties” under this Agreement.
Solutions and Purchaser hereby agree as follows:
1. Subscription Purchase; Use of Services.
1.1 Subscription Purchase.
This Agreement covers your purchase of subscriptions for individual users employed by or similarly affiliated with you that you identify (“User(s)”) to use the online subscription services from third-parties and/or Solutions (“Services”) that may be offered to subscribers from time to time under the Business Plan of the subscription services program (“Program”) referred to as ServSafe Benefits. Each subscription or seat for Services paid for by Purchaser for a User shall be a “Subscription”. One (1) Subscription is required for each User. The number of Subscriptions purchased and the associated Users are specified by you through your user account for the Program (“Account”) on the Program website (“Program Site”). Purchaser is responsible for providing, entering and updating the requisite and correct Purchaser and User information and for promptly removing individuals when they are no longer Users. Upon receipt of the subscription fee or fees indicated on the Program Site (“Subscription Fees”) and the required User information for the Subscription, Solutions will provide Purchaser with the means by which a User may register and subscribe to use the Services.
1.2 Use of Services.
Although Purchaser is paying the Subscription Fees for Users pursuant to this Agreement, Purchaser acknowledges and agrees that in order to use the Services each User must first register and enter into the Program Business Plan Subscription Services Agreement (“Subscription Agreement”) as the “subscriber”. Use of the Services is governed by the Subscription Agreement and all users (including Users) are responsible for complying with all terms and conditions of the Subscription Agreement and the Program, including, without limitation any rules, policies and procedures established by third-party providers of Services. Purchaser acknowledges and agrees that unless otherwise provided in the description of one of the Services, the Subscription and the associated Services shall be used only by the specified User. Any unauthorized use of the Subscription and Services shall be grounds for termination of the Subscription and use of the Services and may lead to damages to Solutions. Should User’s use of Services via a Subscription be suspended or terminated, or if a User does not subscribe or unsubscribes, Purchaser shall be responsible for either providing a substitute User or terminating the applicable Subscription.
- . Purchaser is responsible for any and all information, data and content posted or uploaded through their Account, the Program Site or otherwise provided to Solutions pursuant to this Agreement (“Purchaser Data”) and the accuracy of the same. Further, Purchaser is responsible for maintaining the confidentiality of any non-public authentication credentials associated with its Account, the Subscriptions and Users. Purchaser must promptly notify Solutions about any possible misuse of its Account, any User information or authentication credentials or any security incident related to the Account, Program Site, Users and the Subscriptions. Purchaser shall not, and shall ensure that its employees, contractors, agents or affiliates do not, directly or indirectly (i) make either the Account and access thereto or the Subscription and access to the Services available to anyone other than those Users expressly authorized to use the Services; (ii) sell, resell, assign, transfer, license, sublicense, distribute, outsource, rent or lease the Subscription; (iii) copy, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the any of the Services or any software, documentation or data related to or provided with the same; (iv) modify or create derivative works based on the Services and Program or remove any trademarks or trademark and/or copyright notices from the Services and Program Site; 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 or the Program.
- Suspension/Termination. Solutions may immediately terminate or temporarily suspend Purchaser’s Account, its Subscriptions and access to Services via the Subscription if: (i) Purchaser fails to make payment of the Subscription Fees; or (ii) Purchaser violates any of the terms of this Agreement; or (iii) an individual using the Services through a Subscription, is not authorized to use the same as determined by Solutions, in its sole discretion. Any suspension or termination by Solutions will not relieve Purchaser of its payment obligations otherwise incurred before the date of termination.
- Ownership. Solutions and/or Solutions affiliates and/or third-party providers, as applicable, reserve all rights, title and interest in and to the any software or documents related to or provided as part of this Agreement, the Program, Program Site and/or the Services and all copyright, trademark and other intellectual property rights and derivatives, modifications or improvements thereto. From time to time, Purchaser or its affiliates may be asked to submit to Solutions comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Program and Services (“Feedback”). Purchaser agrees that Solutions has all rights to use and incorporate Feedback into the Program and/or Services without restriction or payment to Purchaser. No rights are granted to Purchaser except as otherwise provided herein.
- Statistical Information. Solutions may monitor use of the Subscription and the Services and compile such 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.
- Promotion. Purchaser grants to Solutions the limited right to use and include your name and logo among its subscribers for purposes of promoting the Program.
4. Subscription Fees; Taxes and Currency; Payment.
- Subscription Fees. Purchaser will pay the Subscription Fees in advance applicable to the number of Subscriptions and the applicable time period that Purchaser signs up for on the Program Site. All Subscription Fees are noncancellable and nonrefundable, unless otherwise specifically specified in writing by Solutions. Solutions reserves the right to change the Subscription Fees upon thirty (30) days’ notice to Purchaser 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.
- Taxes and Currency. All fees are exclusive of, and Purchaser will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services. Purchaser is not responsible for any taxes based on Solutions’ net income or property. All fees due hereunder will be paid in U.S. Dollars. By providing a credit card for payment, you represent and warrant that (i) the credit card information you supply 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.
- Payment. Purchaser shall pay the Subscription Fees for each Subscription as provided on the Program Site, which may include payment through the Account or by invoice. Purchaser must provide a credit card that will be used for automatically recurring payments. Solutions shall have no obligation to deliver the Subscription or the associated Services until payment has been received. Failure to pay amounts as due shall result in the termination of the Subscriptions and use of the Services. Should Purchaser cease to pay the Subscription Fees for a User, Solutions will attempt to provide such User with an opportunity to contract directly for the Program and pay the applicable Subscription Fees himself/herself. In the event that such User’s Subscription cannot be transferred to the individual with payment received, that Subscription shall terminate.
5. Subscription and Agreement Term; Cancellation/Termination and Survival.
- Subscription and Agreement Term. Unless otherwise provided and agreed on the Program Site or in the Subscription Agreement, the subscription term (“Subscription Term”) for each purchased Subscription shall be on a month-to-month basis, and conditioned upon Purchaser’s timely payment of the applicable Subscription Fees for the same. This Agreement will commence on the date Purchaser accepts this Agreement and commences payment of the Subscription Fees (the “Effective Date”) and will remain in effect until the last Subscription Term has expired or has been terminated as provided herein (the “Agreement Term”).
- Cancellation/Termination. Purchaser may cancel or terminate a Subscription through the Program Site through Purchaser’s Account. If a Subscription is cancelled or terminated for any reason before the end of the current month of the Subscription, the cancellation or termination may take effect immediately. Purchaser remains responsible for and will still be charged for the entire current month of the Subscription based on the monthly Subscription Fees. Subscription Fees shall not be pro-rated.
6. Representation; Warranties; Warranty Remedies; Warranties Disclaimer; Service Changes.
- No ERISA, Health Care Benefits or Insurance Benefits. Purchaser explicitly acknowledges and agrees that: (i) Solutions is not providing insurance or health care benefits to Users or subscribers under the Program Business Plan; (ii) many of the Services are provided by third-parties (“Third Party Services”) who are not affiliated with, or under the control of, Solutions (other than agreeing to provide Third Party Services); and (iii) none of the Services provided by Solutions or its third party providers shall include any Services that might be characterized or regulated as pre-paid healthcare services, insurance, or employee benefits plan offerings. Purchaser shall refrain from using any employee benefit contributions in order to pay the Subscription Fees. Purchaser further agrees, that when messaging the Subscription for its Users, employees or affiliates, to refrain from characterizing the Services or the Subscription as an employee benefit, prepaid healthcare or other similar service that may be regulated under applicable ERISA, healthcare or insurance regulations. Services such as those provided by Teladoc Health, Inc. or any other later offered subscription rights for telehealth Third Party Services s shall not be available to Users or subscribers under the Program Business Plan.
- General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
- Services Warranty . Solutions warrants that the Services provided by Solutions (and not by third-parties), under normal and intended use, will (i) perform materially in accordance with the applicable documentation provided by Solutions for such purpose, if any; and (ii) be provided in a manner consistent with generally accepted industry standards. Such warranties do not apply to Third Party Services. Purchaser shall look to any third party provider of Services for the third party provider’s warranty, if any.
- Warranty Remedies. Purchaser will notify Solutions of any warranty deficiencies under Section 6.3 within thirty (30) days of the performance of the relevant Services, and Purchaser’s exclusive remedy will be the re-performance of the deficient Services. If Solutions cannot re-perform such deficient Services as warranted, Solutions will be entitled to terminate the deficient Services and Purchaser shall be entitled only to recover a pro-rata portion of the Subscription Fees paid to Solutions for such deficient Services, and such refund will be Solutions’ sole liability.
- WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SERVICES (INCLUDING SERVICES PROVIDED PURSUANT TO THIS AGREEMENT) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. 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 SUBSCRIPTION SERVICES, THE PROGRAM AND PROGRAM SITE OR THE RESULTS PURCHASER AND ITS USERS MAY OBTAIN BY USING ANY OF THE FOREGOING. SOLUTIONS DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PROGRAM SITE AND ITS 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.
- Service Changes. Solutions reserves the right to modify, suspend, change or discontinue individual Services or features within the Services upon electronic notice on the Program Site, through the Account or other electronic means. To the extent any such changes result in a material reduction of overall functionality without a comparable replacement, Purchaser shall be entitled to discontinue the purchased Subscription as provided in Section 5.2 hereof.
Purchaser is solely liable for any breach, misrepresentation, error or omission by Purchaser, its employees, agents and representatives concerning this Agreement the Subscription and the Services or otherwise made by such party in fulfilling its obligations hereunder. Purchaser will indemnify, defend and hold harmless Solutions and Solutions’ affiliates and their directors, officers, employees, agents, representatives, successors and assigns (collectively, the “Indemnified Parties”) against any claim brought against the Indemnified Parties by a third party arising out of Purchaser’s violation or breach of this Agreement and the representations contained herein or alleging Purchaser’s use of the Program Site, including the Account and/or its Users use of the Subscription and 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 Purchaser-approved settlements of the claim.
8. LIMITATION OF LIABILITY GENERALLY.
Purchaser hereby agrees that in all events, Solutions’ liability to Purchaser in connection with this Agreement, the Services and the services provided by Solutions or its affiliates hereunder shall be limited to the Subscription Fees actually paid by Purchaser 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 (iv) EXCEPT FOR PURCHASER’S PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE SUBSCRIPTION FEES PAID BY PURCHASER UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOUR PURCHASE.
At Solutions’ discretion, Solutions may require you to submit any disputes arising from this Agreement and purchase(s) made by you, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying State of Illinois law. TO THE EXTENT SOLUTIONS REQUIRES YOU TO SUBMIT TO ARBITRATION, YOU AGREE THAT YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
AT SOLUTIONS’ SOLE DISCRETION, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND SOLUTIONS ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT AND YOUR PURCHASE(S) UNDER THIS AGREEMENT, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR SOLUTIONS WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PURCHASERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
11. General Terms.
- Representations and Warranties. Purchaser hereby represents and warrants that: (i) it is duly incorporated, validly existing and in good standing under the laws of the state in which it is incorporated; (ii) it has full right and authority to enter into and fully perform this Agreement in accordance with its terms; (iii) it shall perform its obligations under this Agreement in accordance with all applicable laws and regulations; (iv) it has obtained any and all consents and third-party rights which may be required for the performance of its obligations under this Agreement including, without limitation, all consents and third-party rights required to provide the Purchaser Data to Solutions for use with the Program and Subscription Services as contemplated herein; (v) all Users are individuals employed by or similarly affiliated with Purchaser (vi) Purchaser and/or its affiliates hold full and entire title, rights and interest in its intellectual property and its intellectual property shall not infringe any rights or interests of any third party and (vi) Purchaser’s agreement hereunder is in no way conditioned on any requirement or understanding that Solutions or any third party will be required to purchase any products or services sold or offered for sale by Purchaser.
- Notices. Solutions may give general notices applicable to all Purchasers by means of an electronic notice on the Program Site, through the Account or other electronic means. Purchaser consents to receiving communications regarding the Program, the Subscriptions and the Services. Specific notices applicable to affiliates of the Services, technical support, system security and other account notices may be given by electronic mail to Purchaser’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 Purchaser, Purchaser or Purchaser’s account representative at the address provided by Purchaser or such other addresses as either Party may designate in writing from time to time.
- 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.
- Governing Law; Interpretation. The Parties will be governed by laws of the State of Illinois, excluding its conflicts of law provisions, and except as otherwise stated herein, 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. Invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement. If possible, any unenforceable provision within this Agreement will be modified to reflect the Parties’ original intention.
- 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 Purchaser as a result of this Agreement or use of the Account and/or Services. This Agreement may not be assigned or transferred by Purchaser for any reason whatsoever without Solutions’ prior written consent.
- 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.
- Headings; Entire Agreement. The headings in this Agreement are for reference only. This Agreement represents the Parties’ entire understanding relating to the subject matter hereof and supersedes any prior agreements or understandings regarding the same. In the event of a conflict between this Agreement and the Program Site, the Agreement shall govern.