BY SUBMITTING AN ORDER (AS DEFINED BELOW), APPLYING FOR AN ACCOUNT (AS DEFINED BELOW), OR OTHERWISE ACCESSING OR USING ANY OF THE GM SERVICES, OPERATOR IS ACCEPTING THE AGREEMENT AND AGREES THAT OPERATOR HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE AGREEMENT. IF YOU ARE USING THE GM SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU: (a) ARE AN AUTHORIZED REPRESENTATIVE OF THAT ENTITY WITH THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT AND (b) AGREE TO BE BOUND BY THE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE GM SERVICES. NOTE THAT THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE OPERATOR TO SUBMIT CLAIMS OPERATOR HAS AGAINST CAKE TO BINDING AND FINAL ARBITRATION.
You further represent and warrant that you will not use the GM Services to send text (SMS) communications to guests without their express consent.
The Agreement covers the following matters:
I. Ordering GM Services
II. Authority and Access
IV. Fees and Payment
V. IP Rights
VI. Data Use
VIII. Term and Termination
X. Liability and Indemnification
XII. Modification of the Agreement of Service
XIII. Electronic Communications and E-Sign Consent
XIV. Confidentiality and Privacy
I. Ordering GM Services
Operator may acquire GM Services through a freemium Account and/or through an initial order placed with Cake (the “Initial Order”) and one or more additional orders that reference the Agreement and are placed with Cake during the term of the Agreement (each, a “Supplemental Order” and all Supplemental Orders, if any, together with the Initial Order, the “Orders”). Each Order placed by Operator is subject to acceptance by Cake. Cake and Operator will cooperate to determine how a particular Order may be placed (e.g., through a Cake-controlled website or mobile application, through a Cake representative, or otherwise). The pricing for GM Services on each Order is based on Cake’s then-current pricing for the applicable GM Service(s), except as otherwise expressly agreed by Cake. An Operator may not use more than one freemium Account.
II. Authority and Access
In order to be eligible to use the GM Services, you must be above the legal age of majority (or above the age of 18, whichever is higher) and an owner of the restaurant listed in the Account or an agent who is authorized to act on behalf of the restaurant. You hereby represent and warrant that: (i) all required registration information submitted to the GM Services is complete and accurate and (ii) Operator shall keep its Account up-to-date with current information.
The Account creation process may occur in connection with placing the Initial Order and additional information may be required in connection with the Account as part of Supplemental Orders. The application that Operator is required to complete and submit to create its Account (the “Account Application”) may require Operator to provide information and consents regarding its business and bank account(s) and is subject to Cake’s final review and approval. Operator agrees to provide true, accurate, and current information when creating an account and to not use a false e-mail address, false phone number, false address, false name, impersonate any person or entity, or otherwise mislead as to the origin of the communication from Operator (or its agents) or other content. The foregoing prohibits, among other things, using alternative email addresses or other information to circumvent usage limits associated with any “trial” or “freemium” account. The Operator further agrees not to access the GM Services by fraudulent means or activities including but not limited to a scraper or robot. Operator is solely and exclusively responsible for controlling access to and confidentiality of the Account, including, without limitation, any use by any unauthorized third party, and is further responsible for changing login information (such as the password) to maintain continued confidentiality and limited access to the Account. Cake will not be responsible for any losses arising out of the unauthorized use of the Account.
Operator shall at all times comply with any operating procedures, requirements, or guidelines regarding Operator’s use of the GM Services that are made available (“Usage Guidelines”). Notwithstanding Operator’s use of the GM Services as a tool to manage Operator’s business, Operator is solely responsible for compliance with all laws and regulations that are applicable to Operator’s business, and Cake shall not be responsible for Operator’s failure to comply with such laws and regulations. Operator is solely responsible for ensuring the accuracy of all business information and data that (i) Operator provides to Cake or its service providers in connection with the GM Services and/or (ii) is incorporated into the GM Services at Operator’s request.
Operator will use the GM Services only for their applicable intended commercial purposes and in compliance with all privacy, data protection, intellectual property, and other applicable laws. Operator will not nor may it permit any third party to do any of the following: (a) modify, duplicate, sell, or create derivative works from Cake technology or materials, (b) load, install, or use any third party software onto the GM Services other than software explicitly authorized by Cake; (c) use data mining or gathering devices on GM Services or otherwise access or monitor any material or information on the GM Services or any Cake system using any manual process or robot, spider, scraper, or other automated means unless Operator has separately executed a written agreement with Cake referencing this Section that expressly grants Operator an exception to this prohibition; (d) enable functionalities that are otherwise disabled in the GM Services; (e) reverse engineer the GM Services (except to the extent that that restriction is prohibited by law); (f) interfere with the security of the GM Services or prevent access to the GM Services by Cake’s other users; or (g) otherwise use the GM Services except as expressly allowed under the Agreement.
Subject to this Agreement, Cake gives you a limited, non-exclusive and non-assignable right to use the GM Services described in an accepted Order solely for non-personal, commercial business purposes and in the manner permitted by this Agreement and law. We may suspend or terminate the GM Services to you if you do not comply with our Usage Guidelines or policies or if we suspect misconduct. Through the Account Operator can access its account settings and view certain data and analytics that may be provided by Cake regarding the use of the GM Services by guests/consumers.
Operator grants Cake, its affiliates, and certain third party service providers designated by Cake (a) the right to access and use certain of its relevant hardware devices (such as a mobile device) in order to deliver the GM Services and provide updates, (b) the right to provide advertising and other information to you and your guests for the purposes of promoting Operator’s business and the partnership between Cake and Operator, and (c) a nontransferable license to use the Operator trade names, logos, menus, and marketing materials provided by Operator to Cake in order to advertise, promote and market Operator on the web sites and mobile applications comprising the GM Services for the term of the Agreement.
Operator understands that Cake is not responsible for providing or paying for any wireless service and further that wireless service is not continuous and that Cake is not responsible for any failure or quality of a wireless service or signal.
Cake may from time to time make updates to the GM Service at no cost or subject to additional fees. “Updates” means any software upgrades, adjustments or error corrections to the GM Service. Notwithstanding anything else contained in this Agreement, Cake will have no obligation to continue delivering or releasing new versions of the GM Service.
IV. Fees, Payment and Taxes
Fees associated with GM Service are set forth in an Order or on Cake’s web site or mobile applications (“Fees”) and Operator agrees to pay Cake Fees as set forth in an applicable Order or, in the absence of an Order, the applicable web site or applications. An Order may include a non-cancellable commitment to pay fees for a particular period of time.
Recurring Fees for the GM Services may be changed at any time in Cake’s sole discretion upon 30 days’ notice (which may be by email). Any change in recurring Fees that equals an increase of more than 10% per year will give Operator right to terminate the GM Service for which the fee has been increased as of the effective date of the fee increase, if Operator gives notice of that termination within 15 days of the notice of the fee increase. That termination will not affect Operator’s obligations with respect to any other Cake services. Activation fees if applicable are nonrefundable unless the parties otherwise agree in writing.
Fees are due and payable by Operator in accordance with the agreed-upon billing period. Fees for the purchase of hardware and activation fees may be due immediately upon submission of the applicable order form. Fees may be paid by a credit card or a linked bank account or deduction from (if applicable) a payments processing account, each as designated by Operator. Operator authorizes Cake (or an authorized third party acting as an agent of Cake) to charge and will pay the Fees and understands and agrees that the GM Services involve recurring charges. To stop recurring charges on or deductions from a particular payment card or bank account please contact Cake at email@example.com.
Any portion of fees not paid when due will accrue interest (accruing from the initial due date) at the lower of 1.5% per month or the maximum lawful rate until the Fees, and any accumulated interest, are paid in full. Failure to pay undisputed amounts owed and due on demand in full is a breach of the Agreement and may result, to the extent not prohibited by law, in: (a) the immediate termination of the Account and/or Operator’s access to the GM Services and (b) the charge to Operator of additional fees arising from the collection of delinquent accounts, including collection agency fees, attorneys’ fees and expenses, costs of any legal proceeding, and any applicable interest.
Fees quoted on any Order or otherwise specified via the Account are exclusive of, and unless otherwise expressly specified, Operator is responsible for, all sales, use, excise, value added, and property taxes, e-waste recycling fees, and other taxes, duties, levies, or similar charges, however designated, that are levied by any governmental or taxing authority relating to the activities governed by the Agreement, including any taxes assessed or required to be collected, paid, or withheld in connection with Operator’s receipt of the GM Services or related hardware (“Service and Equipment Taxes”), but excluding taxes in respect of Cake’s net income. Cake may its sole discretion calculate, collect, or pay estimated Service and Equipment Taxes and, if it does so, Cake reserves the right to charge and Operator will pay any Service and Equipment Taxes (in addition to Fees) as reasonably calculated by Cake. Calculation of Service and Equipment Taxes by Cake may be estimated at the time an Order is placed, based on, among other things, rates applicable to the billing address provided to Cake, and subsequently adjusted to conform to applicable law or regulation. For example, in certain jurisdictions, such as California, purchases of hardware may implicate an electronic equipment recycling fee (for which Operator is responsible) upon purchase.
V. IP Rights
Except for the limited use rights described herein, this Agreement and the delivery of the GM Services does not give Operator any intellectual property rights in the GM Services or the Cake content or documentation that is provided. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to Cake or the GM Services shall at all times be and remain the sole and exclusive property of Cake and its direct and indirect parent and subsidiary companies (the “Cake Entities”) or their business partners. You agree to not reproduce, distribute, modify, create derivative works from Cake’s intellectual property inhering in the GM Service and to protect Cake’s proprietary rights and the proprietary rights of all others having rights in the GM Services during and after the term of the Agreement and to comply with all reasonable written requests made by Cake or its business partners or otherwise to protect Cake’s or any third party’s intellectual property rights in the GM Services.
If Operator chooses to provide input and suggestions regarding problems with or proposed modifications or improvements to the GM Services (“Feedback”), then Operator hereby grants Cake an unrestricted, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the GM Services and create other products and services, without notice, compensation or attribution to Operator or any other person. Feedback is not subject to any obligation of confidentiality. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the GM Services (“Materials”) are protected by intellectual property and other laws. All Materials included in the GM Services are the property of Cake or its third-party licensors. Except as expressly authorized by Cake, Operator may not make use of the Materials. Cake reserves all rights to the Materials not granted expressly in the Agreement.
VI. Data Use
Cake Data. As between the parties Cake and its business partners own all information that is provided to Operator as part of the GM Services that is not Guest Data or sourced from Operator Data (as defined below) (collectively, “Cake Data”). Operator may use Cake Data distributed to Operator solely to the extent necessary to: (i) perform the Agreement, (ii) comply with any legal requirements, or (iii) process or promote guest transactions as specifically provided for by the Agreement, except that Operator will not share any Cake Data with any third party that is not a guest without Cake’s prior written consent.
Operator represents, warrants and covenants that it has all rights necessary to upload the Operator Data to the GM Services and to otherwise have such Operator Data used or shared, as applicable, by Cake in relation to the GM Services. Operator will not upload or store any data or materials containing any such information in violation of this section.
Anonymized Data. Any Operator Data that is anonymized in a de-identified format (by aggregation or other means) (“Anonymized Data”) may be used, compiled, disclosed, distributed and published by Cake for any purpose in any manner in its discretion provided that such Anonymized Data does not directly identify Operator’s confidential information and does not qualify as Personal Information under applicable privacy laws. “Personal Information” means any information that identifies or relates to a particular individual and also includes information referred to as “personally identifiable information” or “personal data” under applicable data privacy laws, rules, or regulations.
Hardware for Purchase. Cake may offer for sale hardware, such as a tablet device (e.g., an iPad) and tablet cases (“Purchased Hardware”), solely for use in connection with the GM Service. Purchased Hardware is owned by Operator not Cake and is subject to a limited warranty and return policy described herein. To secure Purchased Hardware until Cake receives payment, Operator grants Cake a purchase money security interest in all Purchased Hardware sold to Operator, as permitted by law. Upon payment in full for any Purchased Hardware, Cake’s security interest in that Purchased Hardware shall be released automatically.
In the event that Operator wishes to return any UNUSED Purchased Hardware after delivery, then Operator may be eligible for a refund in an amount to equal the Purchased Hardware portion of the purchase price (i.e., not set-up or shipping and handling fees) paid by Operator minus a restocking fee equal to 30% of the purchase price. In order to be eligible for such refund (subject to the restocking fee), Operator must (i) Initiate the return within 10 days of receipt of the unit being returned; (ii) Ship the unit back with all original manuals, cables, materials, and packaging to the return shipping address provided by Cake; and (iii) Return the unit in original new condition. If Cake (or its third party agent) receives the Purchased Hardware unit after the allowable return period has expired, Operator will not be eligible for a refund.
Any (if any) set-up service (e.g., configuration) and shipping and handling fees are non-refundable. UNUSED Purchased Hardware must be complete and in manufacturer’s original packaging with no visible damage or use. Cake or its partners shall have the sole discretion to determine if the Purchased Hardware is “UNUSED.” Except in the event of a Cake or vendor error, Operator will be responsible for shipping charges associated with Purchased Hardware being shipped for return, exchange or replacement. Returns must be made via an authorized shipping carrier that allows the package to be tracked.
Delivery times for any (if any) standard and expedited shipping options depend on date and time of acceptance by Cake of the Agreement, which is not guaranteed and may be conditioned on receipt by Cake of additional information from Operator. Operator is responsible for shipping, freight, and insurance as well as any taxes, levies, duties or similar charges unless otherwise set forth hereunder. Operator will be responsible for any loss or damage to the product during shipping of a unit to Cake.
Cake may from time to time with or without notice remotely access certain Purchased Hardware for the purposes of Operator support, installing updates, risk analysis, analyzing trends and maintenance.
Warranties as to Purchased Hardware. Cake offers a limited one (1) year warranty (from original date of purchase) against material defects (the “Hardware Warranty”) on Purchased Hardware whereby subject to these terms Cake shall replace defective Purchased Hardware with a new or refurbished model that is the same as or comparable in feature and functionality to the model being replaced (a “Replacement Model”). This limited Hardware Warranty extends only to Operator as original purchaser and for use of hardware in connection with the GM Services. The Hardware Warranty shall not apply if the defective Purchased Hardware (i) has been subjected to misuse, neglect, improper handling or use contrary to any instructions issued by Cake, (ii) has been repaired or altered by persons other than Cake, (iii) has not been installed, operated, repaired and maintained in accordance with any associated documentation provided by Cake, or (iv) has failed as a result of its being used with third party hardware, software or other systems which use has not been previously approved in writing by Cake. Notwithstanding this limited warranty, it may be necessary for Operator to upgrade Purchased Hardware or purchase new Purchased Hardware from time to time, for which Operator will be charged.
No warranties will be granted without proof of purchase. Cake or its partners shall have the sole discretion to determine if, and to what extent, the Purchased Hardware is defective. Purchased Hardware found not to be materially defective after testing by Cake or its partners may be subject to return at Operator’s expense. If returned Purchased Hardware is defective beyond repair and the terms of the warranty are otherwise satisfied then Cake will in its discretion replace Purchased Hardware with Replacement Model.
Hardware Procurement Services and Terms of Agency. From time to time Cake may provide limited hardware procurement services to Operator related to the sourcing and purchasing of certain hardware related to the GM Services (“Operator Hardware”). Operator appoints Cake as its agent for the limited purposes of procuring such Operator Hardware and agrees to reimburse Cake for its actual costs incurred. In providing such procurement services Cake is not selling Operator Hardware and has no property interest in and provides no warranties as to any Operator Hardware, is not a seller or re-seller of the Operator Hardware and shall not be responsible for any defects, problems or damages of any kind related to Operator Hardware. Subject to Operator’s obligation to reimburse Cake for its direct purchasing costs (incurred on Operator’s behalf), Operator shall at all times own all right, title and interest in the Operator Hardware and is solely responsible for complying with any applicable third party licensing terms associated with the Operator Hardware.
Temporary Equipment Provisioning. In some circumstances Cake may coordinate the temporary provision of certain equipment (usually a tablet device(s) and case(s)) owned by Cake (the “Temporary GM Equipment”) to Operator for a limited time (the “Trial Period”) in connection with the delivery of the GM Services. Operator has no property interest in any Temporary GM Equipment and software installed in the Temporary GM Equipment is the intellectual property of Cake or its partners and licensors. At the completion of the Trial Period the Operator shall immediately return the Temporary GM Equipment to Cake or, if Operator elects to continue receiving the GM Services beyond the Trial Period, Cake in its sole discretion may transfer all ownership and interest in the Temporary GM Equipment to the Operator for a fee (an “Equipment Transfer”). If you fail to return the Temporary GM Equipment within 30 days of the end of the Trial Period, Cake will charge you and you agree to pay for such Temporary GM Equipment.
Operator may solely use the Temporary GM Equipment during the Trial Period for the purpose of receiving the GM Services and in compliance with this Agreement and any applicable third party licensing terms associated with the Temporary GM Equipment. Operator may not transfer (by lease, loan, sale, or sublicense or otherwise) the Temporary GM Equipment or any software installed on it during the Trial Period.
Operator must protect and keep in good state of condition and repair the Temporary GM Equipment and must not use the Temporary GM Equipment or the software on it other than in a manner and for the use intended; and must return the Temporary GM Equipment to Cake (or a third party partner if applicable) upon termination of the Agreement, in the same condition and good order as received, ordinary wear and tear excepted. Cake or its partners shall have the sole discretion to determine if, and to what extent, the Temporary GM Equipment has been damaged. Operator must notify Cake within three business days of discovery of any loss of or material damage to Temporary GM Equipment and Operator must reimburse Cake for the full cost of repairs for Temporary GM Equipment that is damaged. For any Temporary GM Equipment that is lost, stolen, or damaged beyond repair (such determination to be made in Cake’s reasonable discretion), the Operator must reimburse Cake for the full replacement value. Operator agrees to pay an amount to equal the cost of any repair or replacement within fifteen (15) days of receipt of notification from Cake of the cost of such repair or replacement. In the event loss or damage occurs to Temporary GM Equipment prior to termination of this Agreement, replacement equipment will not be provided to Operator until Cake receives full reimbursement costs for the lost or damaged Temporary GM Equipment.
Upon termination of the Agreement, unless the parties otherwise agree in writing or there has been an Equipment Transfer, the Operator shall (a) make any Temporary GM Equipment available for collection during business hours within 5 (five) business days of the termination date and/or (b) in the case that Operator is provided with a pre-paid return shipping box(es) to return of Temporary GM Equipment, ship such equipment to Cake within seven (7) business days of receipt of such box(es). In the event that Operator fails to ship or make available for pick-up any Temporary GM Equipment within the foregoing time periods, Cake reserves the right to charge Operator the replacement cost of any Temporary GM Equipment if such equipment is not received by Cake more than thirty (30) days following the termination date of the Agreement.
In the event of an Equipment Transfer, Cake provides no warranty of any kind with respect to (i) any Temporary GM Equipment or (ii) any service related to a third party warranty, however, manufacturer warranties may apply to certain Temporary GM Equipment. Generally, Apple warrants iPads and iPad Minis against defects in materials and workmanship for one year form the date of original retail purchase but does not warrant against normal wear and tear, nor damage caused by accident or abuse. To obtain more information, Operator should call or visit the Apple owned retail store or Apple authorized service provider.
VIII. Term and Termination
This Agreement shall commence upon your agreement to the GM terms herein (which shall be no later than your use of the GM Service) and shall continue for the service term specified in the Account sign-up process (if any) or any applicable Order (the “Term”) and shall automatically renew on a month to month basis thereafter, unless and until (a) either party terminates the Agreement by giving written notice to the other at least 30 days before the expiration of the initial Term or then-current renewal term, as applicable, (b) the Agreement is terminated in accordance with the Agreement, or (c) the parties agree in writing to a revised Term.
The service term and renewal period applicable to the GM Service (if different from the Term) is as set forth on the freemium account terms, applicable Account application or Order or otherwise specified via the Account. Subject to Cake’s right to change recurring Fees herein, renewal, if any, of access to the GM Services will be at Fees equal to Cake’s then-current “month-to-month” pricing for the GM Service (or its reasonable equivalent if the service as originally contracted is no longer available) unless the parties otherwise agree in writing at the time of renewal. If, prior to the end of a service term period applicable to the GM Service, (a) Operator terminates the Agreement in the absence of breach by Cake of the Agreement, (b) Cake terminates the Agreement, or (c) Operator sells all or substantially all of its business assets and the Agreement is not assigned to and assumed by the acquirer of those assets with Cake’s written approval, Operator is responsible for the Fees owed for the remainder of the term for that GM Service.
Either party may terminate this Agreement for any reason or no reason by 30 days prior written notice provided to the other party; provided, however, that if an Order sets forth a non-cancellable service term period (such as a one or two year term) then Operator shall be responsible for the fees owed under the Order for the remainder of service term in the event that Operator terminates the Agreement in the absence of breach by Cake or Cake terminates this Agreement due to Operator Default.
Cake has the right to terminate the Agreement and/or discontinue the GM Services at any time as a result of any of the following events effective immediately upon occurrence of the event: (a) a material failure by Operator in performing the Agreement (such as failing to pay fees due or otherwise comply with the Agreement) and (b) failure by Operator in complying with any materially significant (to the purposes this Agreement) law or third party right (each of the foregoing being a “Default”).
If the Agreement is terminated or suspended for any reason: (a) Operator must cease using the GM Service, (b) any licenses provided to Operator under the Agreement will end, (c) Cake has the right (but have no obligation) to delete all Operator information and any data, including transactional data, stored on Cake’s servers related to the GM Service (except as prohibited by law), (d) Cake will not be liable to Operator or any third party for termination or suspension of access to the GM Services or for deletion of any information associated with Operator’s account, except that Cake will provide a pro-rated refund of Fees already paid for GM Services not yet delivered if Cake terminates the Agreement or GM Services for reasons not within Operator’s reasonable control, and (e) those terms that by their nature are intended to survive termination (such as intellectual property ownership, arbitration obligations, indemnification obligations, limitations of liability, and obligations to pay any Fees or costs accrued prior to the effective date of the termination and any other amounts owed by Operator to Cake, including claims, fines, penalties, and other liability incurred by Cake caused by Operator’s use of the GM Service) will survive. The termination of the Agreement does not terminate any agreement between Operator and any third party and therefore does not relieve Operator of any obligations it may have under third party agreements.
EXCEPTING THE HARDWARE WARRANTY SPECIFIED HEREIN, THE GM SERVICES AND ANY RELATED HARDWARE, MATERIALS, OR TECHNOLOGY MADE AVAILABLE BY CAKE TO OPERATOR UNDER THE AGREEMENT, THROUGH THE GM SERVICES, OR PROVIDED INCIDENTALLY TO THE AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND THE CAKE ENTITIES HEREBY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO OPERATOR OR ANY OTHER PERSON REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE). OPERATOR’S ACCESS TO AND USE OF THE GM SERVICES, ANY MOBILE APPLICATIONS, WEBSITES OR MATERIALS LINKED TO ANY GM SERVICES IS AT OPERATOR’S OWN RISK. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE STATED IN THE AGREEMENT, THE CAKE ENTITIES AND THEIR BUSINESS PARTNERS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE GM SERVICES OR THE CONTENT OF ANY WEBSITES, MOBILE APPLICATIONS OR MATERIALS LINKED TO THE GM SERVICES. THE CAKE ENTITIES DO NOT WARRANT THAT THE GM SERVICES OR ANY PORTION OF THE GM SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE GM SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OPERATOR FROM THE GM SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE GM SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE CAKE ENTITIES OR THE GM SERVICE THAT IS NOT EXPRESSLY STATED IN THE AGREEMENT. OPERATOR ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM OPERATOR’S USE OF OR ACCESS TO THE GM SERVICES, OPERATOR’S DEALING WITH ANY THIRD PARTY IN CONNECTION WITH THE GM SERVICES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE GM SERVICES. OPERATOR IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO OPERATOR’S PROPERTY (INCLUDING OPERATOR’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE GM SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE GM SERVICES OR THE DOWNLOAD OR USE OF RELATED MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND OPERATOR MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
X. Liability and Indemnification.
Generally. Please read this Section carefully since it limits the liability of the Cake Entities. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Nothing in this Section is intended to limit any rights Operator may have that may not be lawfully limited.
Limitation of Liability. EXCEPT TO THE EXTENT NOT PERMITTED BY APPLICABLE LAW NO CAKE ENTITY WILL BE LIABLE TO OPERATOR OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE GM SERVICES OR OTHERWISE ARISE IN CONNECTION WITH THE AGREEMENT. UNDER NO CIRCUMSTANCES WILL ANY CAKE ENTITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE GM SERVICES OR THE ACCOUNT, OR THE INFORMATION CONTAINED IN THE ACCOUNT OR ACCESSIBLE VIA THE GM SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE CAKE ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (a) LOSS OF DATA, (b) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM OPERATOR’S ACCESS TO AND USE OF ANY GM SERVICE OR RELATED HARDWARE, (c) ANY UNAUTHORIZED ACCESS TO OR USE OF CAKE’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED ON THOSE SYSTEMS, (d) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE GM SERVICES OR RELATED HARDWARE, (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE GM SERVICES OR RELATED HARDWARE BY ANY THIRD PARTY, (f) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT MADE AVAILABLE VIA THE GM SERVICES OR RELATED HARDWARE, OR (g) OPERATOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
NO CAKE ENTITY OR ANY OF THEIR PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) WILL BE LIABLE TO OPERATOR FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE AMOUNT OF FEES AND CHARGES PAID TO CAKE PURSUANT TO THE AGREEMENT FOR THE APPLICABLE GM SERVICES OR RELATED HARDWARE RELATING TO THE CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, OR COSTS IN THE SIX MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM OF LIABILITY.
OPERATOR RECOGNIZES AND CONFIRMS THAT IF IT INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE GM SERVICES OR CAKE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO OPERATOR ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE IT TO AN INJUNCTION, AND IT WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE GM SERVICES.
IF OPERATOR IS A CALIFORNIA RESIDENT, OPERATOR WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” You also waive any protection that may exist under any comparable or similar statutes or principles of common law applicable in states other than California.
Third Party Disputes. ANY DISPUTE OPERATOR HAS WITH ANY CARRIER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE GM SERVICES, IS DIRECTLY BETWEEN OPERATOR AND THAT THIRD PARTY, AND OPERATOR IRREVOCABLY RELEASES THE CAKE ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
Operator hereby agrees to indemnify and defend the Cake Entities (and any of their employees, officers, directors, and agents) against any claims or losses, including settlement amounts or damages, liabilities, and expenses (including reasonable attorneys’ fees), arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) Operator’s access to, use of, or alleged use of, the GM Services; (b) any actual or alleged violation of Operator’s representations, warranties, agreements, or obligations referenced in the Agreement or any applicable law or regulation; (c) any actual or alleged violation of Cake’s policies or applicable policies of its business partners, (d) wrongful or improper use of any GM Service by or on behalf of Operator; (e) inaccurate or incomplete Operator Data, (f) any transaction or other dealings with any other user or other third party, including Operator customers, in which Operator is involved, (g) Operator’s violation of any third party right, including any copyright, property, or privacy right, (h) Operator’s violation of law, or (i) Operator’s violation of any term of this Agreement. Cake maintains the right to control its own defense in any matter subject to indemnification by Operator, in which event Operator will assist and cooperate with Cake in asserting any available defenses.
Generally. In the interest of resolving disputes between Operator and a Cake Entity in the most expedient and cost effective manner, every dispute arising in connection with the Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The Agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. OPERATOR UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THE AGREEMENT, OPERATOR AND CAKE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, Operator or Cake may choose to pursue a claim in court and not by arbitration in the event of a claim that Operator has failed to timely pay amounts due. Cake may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this agreement. In any event, any action or proceeding by operator against a Cake Entity relating to any dispute must commence within one year after the cause of action accrues.
Exceptions. Despite the provisions of the preceding paragraph, nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) seek injunctive relief in a court of law; or (c) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between Operator and Cake will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these GM Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cake.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). Cake’s address for Notice is: Cake Corporation, 9th Floor, MetWest Three, 4050 West Boy Scout Boulevard,
Tampa, Florida 33607. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Operator or Cake may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Operator or Cake must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Fees. If Operator commences arbitration in accordance with the Agreement, Cake will reimburse Operator for Operator’s payment of the filing fee, unless Operator’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Hillsborough County, Florida, but if the claim is for $10,000 or less, Operator may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Operator’s billing address. If the arbitrator finds that either the substance of Operator’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Operator will reimburse Cake for all monies previously disbursed by it that are otherwise Operator’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. OPERATOR AND CAKE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Operator and Cake agree otherwise, the arbitrator may not consolidate more than one Person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Cake makes any future change to this arbitration provision, other than a change to Cake’s address for Notice, Operator may reject the change by sending Cake written notice within 30 days of the change to Cake’s address for Notice, in which case Operator’s account with Cake will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Operator rejected will survive.
Enforceability. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If the above “No Class Actions” paragraph is found to be unenforceable or if the entirety of this Arbitration Section is found to be unenforceable, then the entirety of this Arbitration Section is null and void, the remaining provisions of these GM Terms will remain in effect in accordance with the severability clause of this Agreement, and the exclusive jurisdiction and venue described in herein will govern any action arising out of or related to the Agreement.
XII. Modification of the Agreement or Service
Except as set forth herein, Cake has the right to change or add to the terms of the Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the GM Services or Guest Manager software (an “Agreement Change”) with notice that is reasonable in light of the circumstances, such as by updating the GM Terms on the Operator portal (if available) or on any website or mobile application maintained or owned by Cake for the purposes of providing services under the Agreement. Operator understands the importance of regularly reviewing these GM Terms and other portions of the Agreement as updated on the portal. Use of the GM Services after notice of any Agreement Change will confirm that Operator have read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Operator’s acceptance of the changed GM Service. Notwithstanding the foregoing, (a) any dispute between the parties that arose before the effective date of an Agreement Change is governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose and (b) if an Agreement Change negatively and materially impacts Operator’s rights under the Agreement, and Cake does not waive the applicability of those changes to Operator, Operator may terminate the Agreement by providing written notice thereof to Cake, and in that event, is released from any payment obligations under the Agreement except for outstanding fees owed. That notice must be given within 30 days following the date of notice by Cake of the Agreement Change.
XIII. Electronic Communications and E-Sign Consent
Cake may provide disclosures and notices regarding the GM Services, the Agreement, or the Account to Operator electronically by posting it to the GM Services or Cake’s website, or by emailing it to an email address listed in the Account. Those electronic disclosures and notices will have the same meaning and effect as if Operator was provided with physical copies. Those disclosures and notices are considered received by Operator within 48 hours of the time posted or emailed to Operator unless Cake receives notice of non-delivery. It is Operator’s responsibility to keep email address(es) valid and active and to monitor the email account(s). Cake will not be liable to Operator or any third party for any losses resulting from Operator’s failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, Operator should contact firstname.lastname@example.org. Operator’s electronic signature shall have the same effect as a manual, physical signature.
By providing an email address or mobile phone number to Cake in connection with this Agreement, Operator consents to Cake or its authorized partners sending email or text (SMS) messages to you related to the GM Services and to promote services, products, and features related to the GM Services that may be of interest to Operator or to solicit Operator’s opinion for market research purposes. Message and data rates may apply for any messages sent to you from us and to us from you. If Operator would not like to be contacted via text messages in connection with the marketing of services of Cake or its business partners please contact email@example.com.
XIV. Confidentiality and Privacy
Generally. “Confidential Information” means information and materials related to Cake or the GM Services, and all non-public, confidential or proprietary information of the Cake Entities, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Cake to Operator or otherwise obtained by Operator from Cake, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Agreement. “Confidential Information” does not include any information that Operator can demonstrate: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to Operator by Cake; (b) became publicly known and made generally available after disclosure to Operator by Cake through no action or inaction of Operator; or (c) was in the possession of Operator, without confidentiality restrictions, at the time of disclosure by Cake, as shown by Operator’s files and records. Confidential Information is, as between Cake and Operator, the sole property of Cake and may include valuable trade secrets of Cake. Operator will treat the Confidential Information as confidential and will not, without the express written consent of Cake: (i) use Confidential Information except for the purposes expressly permitted in the Agreement; (ii) distribute or market Confidential Information to any third party; (iii) disclose information relating to the documentation, performance, or quality of the GM Services to any third party (except as permitted by law); or (iv) disassemble, decompile, or reverse engineer any portion of the GM Services. The provisions of this paragraph are effective during the Term (as defined below) and for a period of two years after the Term, except that, for information that constitutes a trade secret under applicable law, the protection period is extended for so long as that information continues to qualify as a trade secret. Operator may disclose Confidential Information if and only to the extent required by law if Operator gives Cake prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
Disclosure of Operator Information. To the fullest extent permitted by applicable law, Cake may disclose to third parties information provided by Operator in order to, among other things, (a) comply with business partner requirements, (b) verify information about Operator and its qualification to use a GM Service, (c) implement risk management controls, (d) ensure regulatory and related compliance, (e) analyze and evaluate the GM Services, and (f) deliver and support the GM Services. Additionally, to the extent permitted by applicable law Cake may disclose information provided by Operator to Cake to third parties in the event Cake is requested or required by applicable law, regulation or legal process (including a subpoena or other administrative or judicial request), to disclose such information. Cake may periodically conduct reporting to assess Operator’s on-going ability to meet the requirements to use the GM Services.
Cake acts as a processor on behalf of Operator where Cake Processes the Personal Information of (i) Operator employees in connection with the provision of GM Services that relate to the management and administration of employees on behalf of the Operator, and (ii) guests where Operator uses the Services to communicate with or provide offerings directly to such guests. In such capacity Cake will comply with all Operator’s instructions regarding the processing of Personal Information; Cake will not without consent “sell” or “share,” as defined by applicable Privacy Laws, Personal Information; Cake shall not retain, use, or disclose the Personal Information for any “commercial purpose” other than performing GM Services on behalf of the Operator, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, facilitating payments, providing financing, providing analytic services, providing storage, or providing similar services on behalf of the Operator; Cake shall not retain, use, or disclose Personal Information outside of the direct Operator relationship between Cake and Operator; Cake shall not combine or update Personal Information with any other information, except as provided for under Privacy Laws; Cake shall comply with all applicable laws and obligations regarding the use and protection of Personal Information, including all Privacy Laws. “Process” or “processing” means any operation or set of operations that is/are performed upon Personal Information, whether or not by automatic means, including, but not limited to, use, collection, recording, organization, storage, access, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, making available, alignment, combination, blocking, deleting, erasure, or destruction. Cake grants Operator the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information in connection with the above.
To the extent required to carry out the GM Services and fulfill Cake’s contractual obligations, Operator agrees to provide a general authorization for Cake to engage sub-processors. Any sub-processor relationship must be governed by a written agreement that imposes substantially similar obligations as are imposed on Cake in relation to the Processing of Personal Information as set forth herein. Cake shall provide reasonable assistance and cooperation to Operator in relation to any individual rights requests made pursuant to the applicable Privacy Laws.
Operator shall comply with all applicable privacy laws including, but not limited to, federal, state, provincial, regional and local laws and regulations related to the collection, processing, or safeguarding of Personal Information (“Privacy Laws”) with respect to any Personal Information collected through the GM Services. Privacy Laws may include, but it is not limited to, laws, and associated regulations or guidance, such as pursuant to the California Consumer Privacy Act (the “CCPA”) and California Privacy Rights Act (“CPRA”, as codified in California Civil Code sections 1798.100, et seq., (collectively, “CCPA/CPRA”), the Virginia Consumer Data Privacy Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act, and other similar laws currently in effect or that may come into effect during the term of the Agreement, all as applicable and as may be amended from time to time. Operator will notify Cake promptly if Operator determines that it can no longer meet its obligations under these GM Terms and Privacy Laws and upon Cake’s request, Operator shall make available to Cake all information reasonably necessary to demonstrate its compliance with these GM Terms and Privacy Laws.
Operator shall assist and cooperate with Cake in Cake’s compliance with applicable Privacy Laws, including without limitation, compliance with individual rights requests, responding to notices or inquiries from governmental, regulatory, legal or other authorities, and providing notifications and remedies to individuals with respect to the GM Services. Cake shall have the right take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information it discloses to Operator. To the extent legally permissible, Operator shall notify Cake prior to responding to any consumer or governmental request related to the GM Services. To the extent that Operator utilizes any third parties in connection with its use of the Services Operator shall ensure that those relationships are governed by a written agreement that imposes appropriate privacy obligations and security controls that are substantially similar to the measures contained in this Agreement. In all cases, Operator shall remain responsible for any acts or omissions of the third party to the same extent as if such acts or omissions were attributable to Operator.
Guest Data. In Cake’s performance of the GM Services, both Cake and Operator will receive, use and store information about third parties, including guests/consumers, such as names, mailing addresses, email addresses, phone numbers, payment card numbers and other financial account-related information, purchasing preferences, and statistical information relating to use of the GM Service by guests (all that data, “Guest Data”). Operator will use such data solely for the purposes of (a) fulfilling the applicable guest’s transaction or experience, (b) complying with Operator’s obligations in the Agreement; or (c) complying with applicable law. Cake reserves the right to suspend the GM Services to any Operator that utilizes any email address or mobile telephone number inputted into the GM Services for any purpose outside of the Service, or in any way that is not legally compliant. Operator will not share or use any Guest Data or third party operator data for marketing, advertising, or other commercial purposes without the express consent of the guest or other third party to which that data relates. NOTWITHSTANDING THE CAPABILITY OF THE GM SERVICES TO COLLECT AND STORE GUEST DATA AND IN SOME CASES TO ALLOW GUESTS TO ELECT TO RECEIVE MARKETING MATERIALS FROM OPERATOR, OR ENABLE OPERATOR TO SEND MARKETING MATERIALS TO GUESTS, APPLICABLE LAWS AND OPERATING RULES MAY LIMIT (i) THE USE OF THAT INFORMATION ONCE COLLECTED, EVEN IF GUEST HAS PROVIDED CONSENT, AND (ii) DISCLOSURE OF THAT INFORMATION TO THIRD PARTIES.
The GM Service includes services or programs that leverage the email addresses and mobile telephone numbers received by and/or inputted by the Operator. Any email address or mobile telephone number displayed, provided, or otherwise furnished by the GM Service is on a temporary basis and the Operator may not record, save, add to any marketing list, or otherwise use such number or address outside of the GM Service. Operator agrees that this Agreement does not authorize it to collect information from guests (such as email addresses or mobile numbers) apart from any feature that may be included in the GM Service. Further, notwithstanding anything in this Agreement to the contrary, the Operator shall not use the GM Services to message (via email or mobile text (SMS) or other medium) any guest or other third party that has not expressly “opted-in” to or agreed to receive communications or that has subsequently “opted-out” or withdrawn its consent to receive communications. For example, if a guest provides its mobile number via oral communications, Operator must ensure that the guest expressly consents to receiving SMS text messages before using the GM Services to communicate with such guest. In all cases Operator will solely use the GM Services to message guests (or other third parties) in compliance with applicable law, including any requirements or standards (e.g., “anti-spam” laws and/or the Telephone Consumer Protection Act of 1991 (the “TCPA”)) governing the sending of commercial e-mail or mobile text messages.
Information Security and Data Storage. Operator shall put in place appropriate policies and technical, organizational, and administrative security controls to safeguard any Personal Information it receives through the GM Services, including without limitation, Guest Data, from unauthorized use, disclosure or access. To the extent Operator shares Personal Information made available to Operator through the GM Services with any subcontractor, Operator shall enter into a written contract with such subcontractor that requires the subcontractor to, at minimum, meet Operator’s obligations under these GM Terms. Without limiting the disclaimers in these GM Terms, Cake will use commercially reasonable efforts to comply with applicable privacy laws regarding the security of personal information obtained from Operator. Cake does not represent, warrant, or guarantee that unauthorized third parties will be unable to defeat Cake’s security measures or use Operator’s personal information for improper purposes.
Operator is responsible for ensuring its data systems are fully protected against unauthorized breaches and maintaining backups of Operator Data at all times. While Cake may archive certain Operator Data while the Account is active and not in default, if there is any loss of Operator Data, Operator’s exclusive remedy is for Cake to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Operator Data that Cake has maintained in accordance with its ordinary storage procedures. Without limiting any of the foregoing, Operator is solely responsible for archiving Operator Data for use after the close of an Account.
Compliance with Laws. Operator represents and warrants that it has all necessary rights and consents under applicable law to use and disclose the Personal Information it provides to Cake pursuant to this Agreement and that Cake will not be in breach of any applicable laws by processing such Personal Information. Operator acknowledges and agrees that Cake may provide some or all of the GM Services from systems located within the United States or countries outside of the United States and that it is Operator’s obligation to disclose, as applicable, to its guests that Personal Information from such guests may be transferred, processed, and stored outside of the United States and may be subject to disclosure as required by applicable law.
If you send electronic messages (such as text messages) to US recipients, you are most likely subject to the CAN-SPAM Act and the TCPA. If you send electronic messages to Canadian recipients, you are most likely subject to Canada’s Anti-Spam Legislation (“CASL”). GM Services may provide pre-populated message templates (based on default settings or Operator instructions) with respect to transactions with guests as a convenience to Operator, however, it is solely Operator’s responsibility to determine whether electronic messages sent using the GM Services comply with applicable law such as CASL or the TCPA. Cake shall in no way be held responsible for violation(s) of CASL, the CAN-SPAM Act or the TCPA. Broadly, to be compliant under CASL a sender of electronic messages to guests must have obtained the consent of the recipient to send him or her the electronic message and the electronic message must contain certain information, including an unsubscribe mechanism with certain requirements.
Entire Agreement. The Agreement, along with any applicable policies and agreements made available at Cake’s websites, mobile applications or Operator portal(s) incorporated into the Agreement by express reference and any exhibits, appendices, addenda, schedules, and amendments explicitly made to the Agreement, sets forth the entire understanding between Operator and Cake with respect to Operator’s use of the GM Services, and supersedes any and all other agreements, oral or in writing, including any agreements as to pricing, implementation schedules, or future releases of services, related to the GM Services, unless made in writing and expressly incorporated into the Agreement. Notwithstanding the foregoing, an updated version of these GM Terms or any other portion of the Agreement (including any version made available to Operator by written communication or by notice at Cake’s or its affiliates’ websites, mobile applications or Operator portal(s)) prevail over previous versions. Any purchase order or similar document that Operator may issue in connection with the Agreement will be for ordering purposes only and any terms and conditions on that purchase order or other document will be of no force or effect.
Waiver. No waiver by any party of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. NOTHING IN THE AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO OPERATOR.
Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, that invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable that term or provision in any other jurisdiction.
Attorneys’ Fees. Operator will pay Cake all reasonable costs and expenses, including attorneys’ fees and court costs, incurred by Cake in exercising any of its rights or remedies under the Agreement or enforcing any of the terms, conditions, or provisions of the Agreement.
Excused Non-Performance. Cake will not be liable or responsible to Operator, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent that failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Cake including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage except that, if the event in question continues for a continuous period in excess of 30 days, Operator will be entitled to give notice in writing to Cake to terminate the Agreement.
Governing Law. The Agreement is governed by and construed in accordance with the laws of the State of Florida without reference to conflict of laws principles. If a lawsuit or court proceeding is permitted under the Agreement, then Operator and Cake will submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Hillsborough County, Florida for the purpose of litigating any dispute.
Change in Ownership; Assignment. Operator will not assign or transfer its benefit or obligations under the Agreement without Cake’s prior written consent. Any sale or transfer of the equity interests of Operator’s business such that the holders of the equity interests of Operator’s business as of the date of the initial Order do not own more than 50% of the equity interests immediately after such transfer shall be deemed an assignment of this Agreement. Cake may assign any or all of its rights under the Agreement in its sole discretion. Subject to the foregoing, the Agreement is binding upon the parties and their successors and assigns (including those by merger and acquisition). Any permitted assignee of or successor entity to Operator must provide any additional information and execute any additional documentation or take any further actions as Cake may request in order to ensure continued provision of services under the Agreement.
No Third-Party Beneficiaries. Subject to the last sentence of this Section, the Agreement benefits solely the parties to the Agreement and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement. The parties hereby designate the Cake Entities as third-party beneficiaries of the Confidentiality, Limited Liability and Data Use sections, having the right to enforce such sections.
Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing. Notices to Cake must be addressed to the address specified herein. Notices to Operator will be sent to Operator’s then-current address specified in the Account. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid), except for notices that the Agreement specifies may be provided by email or other means, including as specified in herein. A notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements.
Interpretation. Section headings are used in the Agreement for convenience of reference only and will not affect the meaning of any provision of the Agreement. For purposes of the Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; and (c) the word “or” is used in the inclusive sense of “or” and the terms “or,” “any,” and “either” are not exclusive. No ambiguity will be construed against any party based on a claim that the party drafted the language.