This Utah Grubs LLC Terms and Conditions of Service (this “Agreement”) is made and entered into effective as of the time you may access a Deal (as defined in Section 3) on the App (as defined in Section 2) or you may post a Deal on the App (the “Effective Time”), by and between you (“User”) and Utah Grubs LLC, a Utah limited liability company (“Servicer”). This Agreement may refer to User or Servicer individually as a “Party” or collectively as the “Parties.”
In consideration of the mutual promises in this Agreement, the Parties agree as follows:
2. The App and Users. User acknowledges that Servicer owns and operates an application downloadable by mobile phone, computer, or any other electronic device Servicer deems appropriate from time to time (the “App”). “Subscriber” means any User that may access and redeem a Deal on the App. “Merchant” means any User that posts a Deal on the App. A User can be any individual with capacity to contract, corporation, limited liability company, partnership, limited partnership, association, government entity, and any other entity with capacity to contract. User can also be a Subscriber, a Merchant, or both.
3. The Services. Servicer shall collectively provide the following “Services” to User as defined below:
Services Provided to Merchant. Servicer shall provide Merchant the following services:
Post coupons for use when purchasing Merchant’s goods or services on the App for Subscribers to redeem at Merchant’s places of business (each a “Deal” or collectively, the “Deals”);
Post Deals on the first of every month that will be valid for that month and can only be reposted to the App, changed and reposted to the App, or removed from the App on the first of every following month, subject to the Merchant Agreement (as defined in Section 3(a)(v);
Provide Subscribers one or more locations of Merchant’s places of business on the App; and
Maintain, repair, and update the App (“Merchant Services”).
Condition Precedent to Receiving Merchant Services. Unless otherwise permitted by Servicer, Servicer’s duty to provide Merchant Services are contingent on Servicer and Merchant having a prior written agreement that provides (A) what Deal(s) will be posted on the App; (B) how and when such Deal(s) will be reposted, changed, or removed from the App; (C) how many times a Subscriber may use such Deal(s) every month; and (D) the liquidated damages payable to Servicer for Merchant committing a breach as described in Section 5(b) (“Merchant Agreement”).
Services Provided to Subscriber. Servicer shall provide Subscriber the following services:
Access to the App;
Enable Subscribers to view Deals;
Enable Subscribers to redeem Deals posted on the App to Merchant’s places of business;
Provide locations of Merchant’s places of business after learning of Subscriber’s real-time location; and
Maintain, repair, and update the App (“Subscriber Services”).
Customer Service. Servicer shall answer User’s questions about the App, provide instruction to User on the functions of the App, and assist User when the App has troubleshooting (“Customer Service”). Servicer’s provision of the Customer Service is contingent on User contacting Servicer by email at firstname.lastname@example.org. User acknowledges that Servicer shall not be liable for the App being dysfunctional, bugged, damaged, corrupted, or otherwise has troubleshooting.
Subscriber’s App Subscriptions.
Subscriber gains access to the App and its Deals by downloading the App, providing necessary information to sign up, and paying Servicer a monthly or annual subscription fee.
In consideration of Subscriber’s payment of a subscription fee to Servicer through any payment method Servicer deems appropriate from time to time, Servicer shall provide monthly and annual subscriptions to Subscriber Services. Servicer shall have separate prices for each subscription and may change the prices for each subscription at any time and without prior notice to Subscriber. Subscriber learns of the price for the subscription it chooses after accepting this Agreement.
A monthly subscription lasts 30 days from the day in which Subscriber purchased the subscription. An annual subscription lasts 365 days from the day in which Subscriber purchased the subscription.
Servicer shall ensure the App includes an option for Subscribers to automatically renew their monthly subscription or annual subscription through automatic payment of the subscription fee.
If Subscriber cancels its monthly subscription on any day in the month, then Servicer shall provide Subscriber Services for the remainder of that monthly subscription. If Subscriber cancels its annual subscription on any day in the year, then Servicer shall provide Subscriber Services for the remainder of that annual subscription. If an annual or monthly subscription expires, then Servicer is no longer obligated to provide Subscriber Customer Service or Subscriber Services.
Servicer need not provide Subscriber Services to Subscriber if Subscriber fails to pay any due subscription fee in full.
Merchant shall cause its officers, directors, employees, and agents to do the following:
Be cognizant of any valid Deal that Merchant has on the App; and
Redeem and comply with any valid Deal that Merchant has on the App if Subscriber presents such a Deal at one of Merchant’s places of business.
If Merchant fails to comply with this Section 5(a), Merchant shall pay Servicer [$300.00] per violation. The Parties acknowledge and intend that this Section 5(a)(iii) is not punitive, but a reasonable calculation of the monetary value of Servicer’s loss of paying Subscribers, diminished reputation, and good will. Merchant waives any challenge, and shall not bring any challenge, to the validity of this Section 5(a)(iii) in any manner, including, but not limited to, any legal action before any court, arbitrator, government agency, or any other tribunal. This Section 5(a)(iii) shall survive the expiration or termination of this Agreement.
Unless otherwise agreed in writing between Merchant and Subscriber, Merchant shall not commit any breach of any Merchant Agreement. The Parties acknowledge and intend that rescinding any valid Deal or amending any valid Deal to have a lower discount than it had during the same month is a breach of any Merchant Agreement and of this Agreement. The Parties further acknowledge and intend that one rescission of a valid Deal or one amendment of a valid Deal to have a lower discount than it had during the same month is equal to one breach of the Merchant Agreement.
Notwithstanding anything to the contrary in this Agreement and subject to the Merchant Agreement, Merchant may amend a Deal if that amendment to the Deal is effective and posted on the App in a later month.
Notwithstanding anything to the contrary in this Agreement and subject to the Merchant Agreement, Merchant may choose not to post a Deal in a later month.
Intellectual Property Rights and Limited, Non-Exclusive License.
User acknowledges that Servicer owns any copyrights, trademarks, patents, trade secrets, or any other intellectual property rights arising from or relating to the App. Servicer grants User a limited, non-exclusive license to use the App for the limited purpose of receiving the Services from Servicer through the App when User has a fully paid monthly or annual subscription. The availability of the license coincides with User’s monthly or annual subscription to the App. If User has access to the App without a fully paid monthly or annual subscription, no license is granted. This license extends to all versions of the App. Once such subscriptions expire for User, Servicer immediately revokes any license granted to User. User shall not transfer or sublicense any license Servicer grants to User. Any attempted transfer or sublicense shall be null and void. Notwithstanding anything to the contrary in this Agreement, Servicer may rescind any license granted to User at any time upon notice to User.
Servicer does not transfer or grant any license to User for any copyrights, trademarks, trade secrets, or any other intellectual property that is not expressly granted to User.
User shall not:
reverse engineer, decompile, or disassemble the App;
alter the App’s composition;
install or use any non-Servicer software or technology in any way that would subject Servicer’s intellectual property to obligations beyond those included in this Agreement;
hack the App;
use any of the App’s software or code on any other software or code;
separate and run parts of the App on more than one device;
distribute, copy, resell, rent, or lend the App;
work around any technical limitations in the App or restrictions in the App’s documentation or structure; or
use the App in any manner inconsistent with the limited, non-exclusive license granted in Section 8(a) of this Agreement or the intellectual property rights of Servicer.
This Section shall survive the expiration or termination of this Agreement.
Term and Termination. This Agreement is effective as of the Effective Time and shall continue until User can no longer access a Deal on the App and User can no longer post a Deal on the App. Servicer may immediately terminate this Agreement for any other reason at any time upon written notice to User, including, but not limited to, notice by email, mobile phone, social media, website, letter, conduct (e.g., User being locked out of the App) or any other written notice that Servicer deems appropriate from time to time.
Effect of Termination. Upon termination of this Agreement, Subscriber shall pay any unpaid subscription fees to Servicer and Merchant shall pay any unpaid damages or other debts owed to Subscriber under this Agreement and any Merchant Agreement. Further, Subscriber need not provide the Services to User upon the termination of this Agreement. Further, User shall no longer have access to Deals on the App or be able to post Deals on the App.
DISCLAIMER OF WARRANTIES. SERVICER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL SERVICER BE LIABLE TO SUBSCRIBER, MERCHANT, USER, OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATING TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT SUBSCRIBER, MERCHANT, OR USER PAID TO SERVICER UNDER THIS AGREEMENT.
The limitation of liability in this Section shall not apply to (i) liability resulting from Servicer’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Servicer's negligent acts or omissions.
This Section shall survive the expiration or termination of this Agreement.
Amendment. Servicer may amend this Agreement at any time upon written notice to User and make Servicer’s provision of the Services contingent on User’s agreement to such amendment, including, but not limited to, receiving a notification of the amended Agreement before being able to access the App.
Assignment. User may not assign or delegate any of its benefits, duties, rights, or interests under this Agreement without Servicer’s prior written consent. Any attempted or purported assignment or delegation in violation of this Section shall be null and void. Notwithstanding, this Agreement shall bind and inure to the benefit of the Parties and their respective heirs, successors, permitted assigns, and representatives.
Compliance with Law. The Parties shall comply with all local, state, and federal laws arising from or relating to this Agreement.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together constitute one and the same instrument.
Any claims, disputes, and controversies arising from or relating to this Agreement (“dispute”) that are within the monetary limits provided in Utah Code § 78A-8-102(1)(a) or its successor statute shall be adjudicated by the State of Utah small claims court in Salt Lake City, Utah (“Small Claims Court”). The Parties acknowledge that the Small Claims Court (i) has appropriate jurisdiction and venue for such purposes; (ii) consents to the jurisdiction of the Small Claims Court; (iii) and waives all objections to jurisdiction, venue, and the defense of forum non conveniens involving the Small Claims Court. No Party shall oppose any motion removing any dispute to the Small Claims Court or file any motion requesting to remove any dispute from the Small Claims Court.
Any dispute beyond the jurisdiction of the Small Claims Court shall be determined by binding arbitration in Salt Lake City, Utah. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures in accordance with the Expedited Procedures in those Rules. The arbitrator costs and fees shall be equally split between the Parties. Judgment on the Award may be entered in any court having jurisdiction and this Section 18(b) shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Parties (i) acknowledge that the courts in Salt Lake City, Utah have appropriate and jurisdiction and venue for such purposes; (ii) consent to the jurisdiction of Salt Lake City, Utah courts; and (iii) waive all objections to jurisdiction, venue, and the defense of forum non conveniens involving such courts.
This Section shall survive the expiration or termination of this Agreement.
Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties regarding this subject matter, and supersedes any prior oral or written agreements, representations, understandings, and discussions between the Parties with respect to such subject matter.
Force Majeure. Servicer shall not be liable for nonperformance or defective or late performance of any of its obligations under this Agreement to the extent and for such periods of time as such nonperformance, defective performance or late performance is due to reasons outside such Party’s control, including acts of God, epidemics, pandemics, war (declared or undeclared), terrorism, action of any governmental authority, civil disturbances, riots, revolutions, vandalism, accidents, fire, floods, explosions, sabotage, nuclear incidents, lightning, weather, earthquakes, storms, sinkholes, epidemics, failure of transportation infrastructure, disruption of public utilities, supply chain interruptions, information systems interruptions or failures, breakdown of machinery or strikes (or similar nonperformance, defective performance or late performance of employees, suppliers or subcontractors); provided, however, that in any such event, each Servicer shall use its good faith efforts to perform its duties and obligations under this Agreement.
Governing Law. The laws of the State of Utah govern this Agreement, except its conflict of laws rules that would cause another jurisdiction’s laws to govern instead.
Headings. The headings in this Agreement are intended solely for convenience of reference and give no effect in the construction or interpretation of this Agreement.
Independent Contractor. The Parties shall always be independent contractors with respect to one another under this Agreement. Nothing in this Agreement shall be construed to create an employer/employee, joint venture, partnership, lease or landlord/tenant relationship between the Parties. User shall not hold himself or herself out as an officer, agent or employee of Servicer, and shall not incur any contractual or financial obligation on behalf of Servicer without Servicer’s prior written consent.
Not Construed Against the Drafter. No provision of this Agreement shall be construed by any court, arbitrator, government agency, or other tribunal against any Party by reason of such Party being deemed to have drafted such provision.
No Third-Party Beneficiaries. Notwithstanding any other provision of this Agreement, there are no rights or benefits given to any person other than the Parties.
Severability. If any provision of this Agreement, in whole or in part, or the application of any provision, in whole or in part, is determined to be illegal, invalid or unenforceable by a court of competent jurisdiction, arbitrator, government agency, or any other similar tribunal, and such provision can be severed without substantially changing the bargain reached by the Parties, such provision or part of such provision shall be severed from this Agreement, and such severance shall have no effect upon the enforceability, performance or obligation of the remainder of this Agreement, including but not limited to the remainder of such provision not determined to be illegal, invalid or unenforceable.
Waiver. No delay or failure to require performance of any provision of this Agreement by Servicer shall constitute a waiver of that provision by Servicer as to that or any other instance. Any valid waiver Servicer grants shall be in writing and apply solely to the specific instance expressly stated in the written waiver.