RESTAURANT PASSION - TEXT MESSENGER
SMS/MMS TEXT MESSAGE MARKETING SERVICE
USER TERMS & CONDITIONS
(Last updated on February 15, 2021)
These RESTAURANT PASSION - TEXT MESSENGER - SMS/MMS TEXT MESSAGE MARKETING SERVICE ("Text Messenger") terms and conditions ("Terms", "Agreement") are an agreement between Restaurant Passion, Inc. ("Restaurant Passion, Inc.", "us", "we" or "our") and you, the individual user (User", "you" or "your"). This Agreement sets forth the general terms and conditions of your use of our Text Messenger that operates as an integral part of restaurantpassion.com, banquetpassion.com and wedding passion.com websites and other websites owned by Restaurant Passion, Inc. and/or by others, severally and collectively ("Website" or "Services") to receive marketing and transactional text messages from Restaurant Passion, Inc., and/or our Advertiser and/or Services Subscribers, severally and collectively ("Services Subscribers").
We reserve the right to change these Terms from time to time, and any revised Terms will supersede prior versions. Any updates to these Terms shall be posted on this website. Unless indicated otherwise, they will be effective on the date listed at the top of the Terms. You acknowledge your responsibility to review our Terms from time to time and to make you aware of any such changes. By using and/or continuing to use any of the Website and/or Services after we post any such changes, you accept the revised Terms.
User Opt In
Text Messenger allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Service, such as through online webpage, in text message or application-based enrollment forms to receive text messages from Restaurant Passion, Inc. and/or our Advertisers and Services subscribers. Regardless of the opt-in method you utilized to join Text Messenger, you agree that this Agreement applies to your participation in Text Messenger. By your opt-in and/or participating in Text Messenger, you agree to receive automated marketing text messages at the phone number you provided and/or associated with your opt-in, from Restaurant Passion, Inc. and/or from businesses that advertise on our Website(s) or utilize our Services that you have opt-in selected. You understand that your opt-in consent to receive automated marketing text messages may cause you to incur message and data rates charges from your mobile device carrier or other service provider that may apply. You understand and agree that no time will we be responsible for any message and data rates charges you receive resulting from your opt-in use of our Text Messenger service.
User Opt Out
If you wish to unsubscribe from any one of our advertisers or Services subscribers Text Messenger texts and/or no longer agree to this Agreement, you agree to reply text with the word STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any text message received from a specific advertiser or Services subscriber that you no longer want to receive. You understand and agree that we offer our services to many businesses and that If you choose to subscribe to more than one of our advertisers and our Services subscribers of our Text Messenger, you must individually unsubscribe by op-out with the text message "STOP, END, CANCEL, UNSUBSCRIBE, or QUIT" from each business utilizing our Text Messenger on your mobile text messaging device. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only methods to opt-out. You further understand and agree that no other method of opting out, including, but not limited to, texting words other than those stated herein or communicating your opt-out request by any other means including, but not limited to verbally, email, social media is not an acceptable method of opting out of Text Messenger.
Without defining the scope of the content delivered to you via Text Messenger, users that opt-in to Text Messenger can expect to receive messages regarding the marketing and sale of products, services, events, discounts and promotions ("Marketing Text Message").
Message Cost and
Message and data rates may apply. (This means your service provider may charge you for text messages you receive FROM Text Messenger) Text Messenger entails you receiving recurring mobile text messages. The default quantity of mobile text messages sent after the opt-in process is: a maximum of two Marketing Text Message within seven days (ie. two messages per week max) Additional mobile text messages over the stated frequency may be sent to you periodically based on your interaction with Restaurant Passion, Inc. and/or our Services Subscriber in response to you initiating contact with the sender by sending a text message ("Inbound Text").
Inbound Text Messages
Currently Inbound Text Messages, messages that you initiate are not supported on Text Messenger and will not be delivered to the intended recipient. In the future, Text Messenger may be upgraded for you to send Inbound Text messages to Restaurant Passion, Inc. and/or Services Subscriber. You agree that all reply and/or subsequent text message exchanges in response to your Inbound Text from you to Restaurant Passion, Inc., and/or Services Subscriber will be considered transactional text message and will not be restricted by the Marketing Text Message limit. In addition, mobile text messages may be sent to by Restaurant Passion, Inc., the Services Subscriber periodically as may be needed for administrative notification and will not be restricted by the Marketing Text Message limit.
For assistance regarding the Text Messenger, text "ASSIST" to the number you received text messages from. If you send an ASSIST text massage you will receive a message with instructions to Opt-out and a link to these Terms & Conditions. From time to time ASSIST reply text messages may be updated with additional helpful information.
Currently Text Messenger does not send MMS messages. In the future Text Messenger may be upgraded for you to receive MMS messages. When Text Messenger is upgraded to receive MMS messages, if your mobile device does not support MMS messaging, Text Messenger will send the MMS as a SMS terminating message and as a result may not include all data included in the MMS message that was initiated.
You must own your wireless device, capable of text messaging, and be the wireless service subscriber with your mobile text messaging service provider. Not all mobile text messaging service providers' platforms may accept messages from Text Messenger.
You may not use of engage with Text Messenger if you are under eighteen (18) years of age. If you use or engage with Text Messenger and are an adult over the age of eighteen (18). Your use of Text Messenger to receive and/or send text messages, is an acknowledgment that you agree that you are permitted to use of Text Messenger in the jurisdiction by Applicable Law in which Text Messenger is used.
In addition to other terms as set forth in the Agreement, you are prohibited from using Text Messenger or its Content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. (l) to send commercial information or solicitations via Website forms. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses. Such violation may result in civil and/or criminal penalties against the sender and those assisting the sender.
This Agreement does not transfer to you any intellectual property owned by Restaurant Passion, Inc. or third-parties, and all rights, titles, and interests in and to such property will remain (as between the parties) solely with Restaurant Passion, Inc. All trademarks, service marks, graphics and logos used in connection with our Website or Services, are trademarks or registered trademarks of Restaurant Passion, Inc. or Restaurant Passion, Inc. licensors. Other trademarks, service marks, graphics and logos used in connection with our Website or Services may be the trademarks of other third-parties. Your use of our Website and Services grants you no right or license to reproduce or otherwise use any Restaurant Passion, Inc. or third-party trademarks.
Text Messenger accepts forms of advertising, sponsorship, paid insertions or other forms of compensation from our restaurant users. Restaurant Passion, Inc. is compensated to provide information on products, services, websites and various other topics. The compensation received may influence the advertising content, topics or posts made on the Website. Sponsored content, advertising space or post may not always be identified as paid or sponsored content. Some of the links on the Website may be "affiliate links". This means if you click on the link and purchase an item, Restaurant Passion, Inc. will receive an affiliate commission.
Disclaimer of Warranty
You agree that your use of Text Messenger, our Website or Services is solely at your own risk. You agree that such Services is provided on an "as is" and "as available" basis. We will not be liable for delays and/or failures of receipt of any mobile text messages utilizing Text Messenger. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Service will be uninterrupted, timely, secure, or error-free; nor do we make any warranty as to the results that may be obtained from the use of the Service or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any content, material and/or data downloaded or otherwise obtained through the use of Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such content, material and/or data. Furthermore, information contained in text messages you receive from Text Messenger Services, our Website(s) and any webpage linked to and from Text Messenger Services or our Website(s) it is subject to change at any time and without prior notice.
Limitation of Damages
To the fullest extent permitted by applicable law, in no event will Restaurant Passion, Inc., its affiliates, officers, directors, employees, agents, suppliers or licensors be liable to any person for any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, revenue, sales, goodwill, use or content, impact on user, user interruption, loss of anticipated savings, loss of user opportunity) however caused, under any theory of liability, including, without limitation, contract, tort, warranty, breach of statutory duty, negligence or otherwise, even if Restaurant Passion, Inc. has been advised as to the possibility of such damages or could have foreseen such damages. To the maximum extent permitted by applicable law, the aggregate liability of Restaurant Passion, Inc. and its affiliates, officers, employees, agents, suppliers and licensors, relating to the services will be limited to an amount greater of any amounts actually paid by you to any of our restaurant users in connection with their goods or services as advertised on the Website only, prior to the first event or occurrence giving rise to such liability. The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose.
LIMITATION OF LIABILITY
UNLESS CAUSED BY OUR GROSS NEGLIGENCE OR INTENTIONAL CONDUCT, YOU AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER OF WHATEVER KIND OR NATURE IN CONNECTION WITH ANY OF THE FOLLOWING: (A) THE USE OR INABILITY TO USE TEXT MESSENGER AND/OR RELATED SERVICES; (B)IN CONNECTION WITH ANY TRANSACTION YOU ELECT TO CONSUMMATE UTILIZING OUR TEXT MESSENGER WITH SERVICES SUBSCRIBERS, ADVERTISERS, OR ANY THIRD-PARTY.; (C) ANY CONTENT YOU TRANSMIT AND/OR RECIEVE IN CONNECTION WITH OUR TEXT MESSENGER, WEBSITE AND/OR SERVICES; (D) YOUR CONDUCT WHILE USING OUR TEXT MESSENGER, WEBSITE AND/OR SERVICES; (E) ANY INFRINGEMENT BY YOU OF ANOTHER PERSON'S RIGHTS, INCLUDING WITHOUT LIMITATION RIGHTS OF PRIVACY, INTELLECTUAL PROPERTY OR DATA PROTECTION; (F) THE CONDUCT OF ANY OUR SERVICES SUBSCRIBERS YOU INTERACT WITH THROUGH YOUR USE OF THE TEXT MESSENGER SERVICES INCLUDING, BUT NOT LIMITED TO, ANY ILLNESSES SUFFERED BY YOU OR FAILURE BY SUCH SERVICES SUBSCRIBERS TO PROVIDE ANY SERVICES TO YOU OR FOR ANY BREACH OF ANY AGREEMENT ENTERED INTO WITH YOU; OR (G) ANY LOSS OF ANY OF YOUR DATA STORED BY US DUE TO ANY BREACH OR MALFUNCTION OF OUR SOFTWARE AND/OR SERVERS OR DUE TO ANY VIRUSES, MALWARE OR SIMILAR ATTACKS BY THIRD PARTIES ON OUR DATA SERVERS OR DUE TO ANY SOFTWARE MALFUNCTION, SERVER MALFUNCTION, AND/OR SERVICE INTERRUPTION OF THE DATA STORAGE SERVICES PROVIDED TO US BY SUCH THIRD PARTY PROVIDER(S).
WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR WEBSITE AND/OR SERVICES AND/OR THESE TERMS EXCEED THE ACTUAL SUM OF THE DIRECT COST OF YOUR LOSS UPTO A MAXIMUM FIVE HUNDRED ($500) DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF THE FOREGOING SECTIONS MAY NOT APPLY TO YOU.
and Consequences for Failing to Opt-out
If at any time you plan to surrender end, terminate or transfer the mobile telephone number that has been used to subscribe to the Text Messenger, you agree that you will complete the User Opt-out process as described herein prior to completing your plan to end, terminate or transfer the mobile telephone number, ending your use of the mobile telephone number that has been used to subscribe to the Text Messenger. You understand and agree that your agreement to do so is a material part of these terms and conditions. In the event you discontinue the use of your mobile telephone number that has been used to subscribe to the Text Messenger, you will be responsible for all liabilities and all costs (including reasonable attorneys' fees) incurred by Restaurant Passion, Inc., or any party that assists in the delivery of mobile text messages, as a result of claims brought by any communication service providers and/or individual(s) or company(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in Text Messenger.
Termination of Services Subscriber Use of Text Messenger
In the event we or the services subscribers that send you texts elect to terminate Text Messenger Services, the services provider can request a list of User opt-in subscriber telephone numbers for use with a another texting service operated by others if done so within 30 days of termination. User opt-in subscriber telephone numbers will not be provided for any other purpose. Services subscriber agrees that you will immediately upon their termination of Text Messenger be notified of their change in text message services providers and/or platform, the change in text message number they will use. They agree to abide by the current user Opt-in basis of: a maximum of (2) two Marketing Text Message within seven days, until and unless you affirmatively elect and agree to a different basis in which to receive text messages from them. You agree that you will not bring any action against us, civil or criminal, however arising from text messages sent to you at your User opt-in subscriber telephone numbers utilizing other text message services providers and/or platforms.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD RESTAURANT PASSION, INC. HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY RESTAURANT PASSION, INC. OF YOUR SURRENDURING, TERMINATING USE OF YOUR MOBILE TELEPHONE NUMBER, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM RESTAURANT PASSION, INC. AND/OR OUR ADVERTISERS AND ANY SERVICE SUBSCRIBERSATTEMPTING TO CONTACT AND/OR SEND YOU TEXT MESSAGESAT THE MOBILE TELEPHONE NUMBER YOU PROVIDED DURING YOUR OPT-IN PROCESS BECAUSE OF YOUR FAILURE TO UNSUBSCIBE ANDOPT-OUT FROM TEXT MESSENGER BY SENDING A TEXT MESSAGE WITH STOP, END, CANCEL, UNSUBSCRIBE, or QUIT. YOU UNDERSTAND AND AGREE THAT WE OFFER OUR SERVICES TO MANY BUSINESSES AND THAT IF YOU SUBSCRIBED TO MORE THAN ONE OF OUR ADVERTISERS AND/OR OUR SERVICES SUBSCRIBERS OF TEXT MESSENGER, YOU MUST INDIVIDUALLY OP-OUT, UNSUBSCRIBEWITHTHETEXT MESSAGE "STOP, END, CANCEL, UNSUBSCRIBE, or QUIT" FROM EACH BUSINESS THAT YOU ELECTED TO SUBSCTRIBE, OPT-INTO MESSENGER. YOU FURTHER AGREE TO INDEMNIFY AND HOLD RESTAURANT PASSION, INC. AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES OR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED IN CONNECTION WITH OR ARISING FROM ANY THIRD-PARTY ALLEGATIONS, CLAIMS, ACTIONS, DISPUTES, OR DEMANDS ASSERTED AGAINST ANY OF THEM AS A RESULT OF OR IN ANY WAY RELATING TO YOUR USE OF THE TEXT MESSENGER, WEBSITE OR SERVICES, AND/OR FROM ANY WILLFUL MISCONDUCT ON YOUR PART.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Choice of Law &
The formation, interpretation, and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of New Jersey, United States without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of United States. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state courts located in Morristown, Morris County, New Jersey, United States, and you hereby submit to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
THE PARTIES AGREE TO GIVE UP THEIR RIGHTS TO BRING ANY CLAIMS RELATING TO THIS AGREEMENT (OTHER THAN TO PROTECT THEIR RESPECTIVE INTELLECTUAL PROPERTY RIGHTS) BEFORE A COURT OF LAW OR OTHER LEGAL TRIBUNAL AND TO RESOLVE ALL DISPUTES OR CLAIMS EXCLUSIVELY BY ARBITRATION.Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, any and all claims, disputes or controversies of whatever kind and nature, whether preexisting, present or future between You and us, our agents, employees, principals, directors, officers, shareholders, members, managers, successors and assigns, to the extent applicable, arising from or relating to this Agreement, its interpretation or validity, shall be resolved exclusively by binding arbitration pursuant to the then-current rules of the American Arbitration Association ("AAA") and shall be administered by the AAA. Notwithstanding the foregoing, to the extent You have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in state or federal court under the terms of this Agreement. Any arbitration proceeding shall be brought and heard in Morristown, New Jersey. The arbitrator shall be authorized to grant any relief available under law or in equity and any award rendered shall be final and conclusive upon the parties, except that the arbitrator shall not be authorized to award punitive damages to either You or us. Any judgment may be entered in any court having jurisdiction and the arbitrator may award reasonable costs and fees, including reasonable attorney's fees and all arbitration fees, to the prevailing party, notwithstanding the then current rules of the AAA.
You may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without our prior written consent, which consent shall be at our own sole discretion and without obligation; any such assignment or transfer shall be null and void. We are free to assign any of its rights or obligations hereunder, in whole or in part, to any third-party as part of the sale of all or substantially all of its assets or stock or as part of a merger.
We shall not be liable for any delay or failure in our performance under this Agreement due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed to host this Website or otherwise fulfill our obligations to You under this Agreement.
This Agreement constitutes the complete and exclusive agreement and supersedes any prior communications, representations or agreements of the parties, and cannot be altered, amended, or modified except in writing executed by an authorized representative of each party. It is further expressly understood and agreed that, there being no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within the computer software development industry or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.
The parties agree that the waiver by any party of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach by such party.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction, in whole or in part, to be invalid, illegal, or unenforceable in any respect, for any reason, the validity, legality and enforceability of the remainder of that provision, any other remaining provisions, and of the entire Agreement shall not in any way be affected or impaired thereby, and shall be interpreted, to the extent possible, to achieve the purposes as originally expressed with the provision found to be invalid, illegal or unenforceable. Each provision hereof is intended to be severable, and the validity, legality, or enforceability of any provision of this Agreement shall not affect the validity, legality, or enforceability of the remainder of the Agreement.
Changes and Amendments
We reserve the right to modify this Agreement or its policies relating to the Website or Services at any time, effective upon posting of an updated version of this Agreement on the Website. When we do, we will revise the updated date at the bottom of this page. Continued use of the Website after any such changes shall constitute your consent to such changes.
Click here: www.restaurantpassion.com/contact-us to contact us if you have any questions about this agreement.
(Last updated on February 15, 2021)