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.
Your participation in Text Messenger is subject to the Terms and Conditions of this Agreement and our Website Privacy Policy located at: https://www.restaurantpassion.com/policies/website-privacy-policy/5/ . By opting in to or participating in Text Messenger, you accept and agree to these terms and conditions, including our Website Privacy Policy. This Agreement is limited to the Text Messenger and is not intended to modify other Terms and Conditions that may govern the relationship between you and Restaurant Passion, Inc. in other contexts.
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.
Text Messenger
Service Description
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
Frequency
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.
Assistance Instructions
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.
MMS Messages
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.
User Requirements
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.
Age Restriction
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.
Prohibited Uses
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.
Intellectual Property
Rights
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.
Compensation
Disclaimer
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.
Opt-out Requirement
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.
INDEMNIFICATION
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. ยง 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.
Severability
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 &
Venue
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.
ARBITRATION
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.
Assignment
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.
Force Majeure
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.
Entire 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.
Waiver
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.
Severability
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.
Contacting Us
Click here: www.restaurantpassion.com/contact-us to contact us if you have any
questions about this agreement.
(Last updated on February 15, 2021)
